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Review of the Residential Services _Accommodation_ Act 2002

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					Review of the Residential Services (Accommodation) Act 2002
Submission by the Office of the Public Advocate – Queensland 6 May 2005

I.

Preliminaries

Scope of the review
The Residential Tenancies Authority is conducting a review of the Residential Services (Accommodation) Act 2002 (RSA) which commenced on 23 August 2002. The RSA focuses on boarding houses, supported accommodation hostels, and aged care rental units. It seeks to establish the accommodation rights and responsibilities of residents and service providers by requiring written residential service agreements and providing a process for the resolution disputes about these agreements.

The Public Advocate’s interest
The Office of the Public Advocate was created under chapter 9 of the Guardianship and Administration Act 2000 (Qld). The Queensland Public Advocate is charged with providing systems advocacy for adults with a decision-making disability. This group includes people with an intellectual disability, a psychiatric disability, an acquired brain injury or some form of dementia. Under the Act, it is the function of the Public Advocate to:
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promote and protect the rights of adults with impaired capacity for a matter promote the protection of the adults from neglect, exploitation or abuse encourage the development of programs to help the adults to reach the greatest practicable degree of autonomy promote the provision of services and facilities for the adults monitor and review the delivery of services and facilities to the adults.

The Public Advocate’s interest in this Review stems from the following basic premises. 1. The boarding house and supported accommodation sector has traditionally been home to large numbers of Queensland citizens with a decision-making disability, particularly people with intellectual or psychiatric disabilities. Many of these citizens are highly vulnerable with significant disabilities, low incomes, poor access to necessary services, no family involvement in their life, and few social supports and networks. 2. As outlined in the Public Advocate’s 2003-04 Annual Report to the Queensland Parliament, issues relating to housing and support are the most important systemic issues facing vulnerable people with decision-making disabilities in Queensland today. Having access to a real home of your own means more than just having a roof over your head. It provides the basis for having a good quality of life. It carries significant meanings about belonging, identity, security and control over one’s life. 3. The Residential Services industry is undergoing considerable transformation. Faced with a rising real estate market, operators are choosing to sell-up and leave the industry in growing numbers. Having operated without government involvement for

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decades, the industry now also struggles to adjust to an intensifying wave of regulatory reforms. These shifts will have substantial impacts on vulnerable residents. 4. Many boarding house and hostel residents lack the capacity to speak out on their own behalf. In some cases, this is linked to the extent of their cognitive disability. However it also reflects the historic culture of the industry – a culture that, despite the presence of numerous reputable operators, has been distinguished by a pattern of intimidation, summary evictions, and scant recognition of resident rights. The Office wishes to acknowledge the contributions of other stakeholders to this Review process. In particular, the Tenants’ Union of Queensland for its 2004 Residential Services Monitoring Report. In the main, the Office endorses the analysis and findings of this detailed examination of the RSA. Also, the Boarding House Action Group, for its sustained advocacy on behalf of boarding house and hostel residents. It is also fitting to recognise the work of the Residential Tenancies Authority. The Authority has overseen the commencement of the RSA, has actively engaged with operators on its adoption, and has contributed to the advancement of resident awareness and empowerment. The Office further acknowledges the considerable efforts of the Authority in this consultation process.

II.

Key issues

To understand the Office’s analysis of, and recommendations for, the RSA review, it is necessary to understand what life is like for the cohort of Queensland citizens on whose behalf it advocates. What does it mean to be a vulnerable person with a decision-making disability living in a boarding house or supported accommodation hostel?
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You will live on a fixed, low income, often a disability pension. You will pay anywhere from 75%-95% of your weekly income in rent/board. You may not have the capacity to read or understand documents that relate to your accommodation. You will most likely have few other options about where to live. You are unlikely to have any/many family members or friends in your life. You are likely to be unable to make complaints about, or assert your rights with respect to your accommodation. If you are able to, you are likely to be afraid of reprisal if you do so. You are unlikely to have any access to necessary health and disability support services. You are likely to spend a good deal of your time within the confines of the facility, and to have few meaningful connections to activities and people outside the facility.

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It is these multiple disadvantages in the lives of adults with impaired decision-making capacity that drives the recommendations of the Office. These recommendations centre on four key aspects of the RSA.

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1. Ending agreements and evictions
Of chief interest to the Office are the provisions relating to the ending of agreements and the eviction of residents (under Part 9 of the RSA). Currently, residents of boarding houses and hostels have less security of tenure than other Queensland tenants. This is related to the weaker tenancy provisions in the RSA, relative to those embedded in the Residential Tenancies Act 1994 (RTA). It is known throughout the sector that the threat of summary eviction significantly undermines residents’ security of tenure, contributes to the transience of some residents, and underpins their fear of speaking out or making complaints. Furthermore, the evidence available to the Office to date suggests that the current eviction provisions are not working as intended. Many residents seem to prefer to self-evict rather than engage in dispute with an operator or attempt to assert their rights. Further, based on data collected by the Tenant’s Union of Queensland, it would appear that police are rarely called in to attend evictions, as intended under s.82 of the RSA. The Office supports the following amendments to strengthen the security of tenure for vulnerable residents.

 The timeframes for breaches, terminations and remedies under the RSA should be
increased, consistent with the protections for tenants afforded by the RTA.

 For serious breaches (s.79), the power of immediate eviction by operators should be
removed, and replaced with the provision for an urgent tribunal hearing before any eviction can proceed (i.e. ensure access to independent adjudication).

 Operators should not have the power to end a Residential Service Agreement without
grounds (s.81).

 With respect to the provision of notices (for rule changes, to remedy a breach, to
leave, to end agreement etc.) to residents with impaired capacity, the scope of s.133 should be expanded to include informal decision-makers (i.e. members of a person’s support network).

2. Coverage and definitions
At present, there are several issues related to the coverage of the RSA, and its definitions. The Office makes the following recommendations.

 The link between the RSA (Accommodation) and the RSA (Accreditation) should be
broken, with a “residential service” being clearly defined under the RSA (Accommodation).

 In line with the above, the term “service provider” should be defined more broadly in
the RSA to include other parties who are acting on their behalf, specifically “associates”. Residents fulfilling a caretaker role, and/or collecting rent, should be included within the definition of “associate”.

 Serious consideration should be given to the inclusion of certain types of facilities
which are currently exempt from the RSA. Specifically:

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facilities with some self-contained features (e.g. cooking facilities or toilets), given the current trend for operators to “self-contain” accommodation to avoid coverage, as documented by the Department of Housing facilities run by community organisations and which operate under a Government grant from Disability Services Queensland, Queensland Health or the Department of Housing.

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If residents in these facilities are not covered under other, more powerful tenancy protections (e.g. those afforded by the RTA), they should be covered under the RSA.

 Following the recommendation of the Tenant’s Union, the Office considers that it
makes good sense to define coverage under the RSA by the occupancy elements of the accommodation (e.g. boarders and lodgers), rather than by the type of accommodation and services provided (e.g. boarding houses, supported accommodation hostels etc.) to avoid confusion over coverage.

 The “multiple location” issue should be clarified – s 4(4) of the RSA (Accreditation),
and a revised section included in the RSA (Accommodation).

3. Residential service agreements
The written Residential Service Agreement is fundamental to the protection of vulnerable residents’ rights. With respect to such agreements, the Office makes the following recommendations.

 The Office agrees with the Authority’s suggestion that the creation of specific
timeframes for providing written agreements (s.16) would facilitate compliance.

 It has been reported to the Office on numerous occasions since the RSA’s
commencement that residents are not receiving written agreements from operators. We are unable to ascertain how widespread this failure is, nor whether it requires a more vigorous approach to compliance on the part of the Authority. However, the Office would support a closer inspection by the Authority of the issue.

 The reported failure to provide a written agreement may be linked to the relatively
minor penalties operators incur for this failure under s.16 of the RSA (10 penalty points). The Office recommends that the RSA penalties be consistent with those of the RTA (i.e. 20 penalty points).

 Sections 16-17 of the RSA discuss the provision of a written service agreement to the
resident. No mention is made of residents with impaired decision-making capacity. While the Office agrees that operators should not be penalised if a resident refuses to sign an agreement, for those with impaired capacity the situation is more complex. Here the concern is that impaired capacity might be used by operators as an excuse not to prepare and provide agreements. In these cases an agreement should be prepared and provided to the resident’s guardian, where one exists. An inclusive definition of “guardian” should be applied. As recognised by the Guardianship and Administration Act 2000, a guardian may be formally appointed by the Guardianship and Administration Tribunal. More commonly friends, family,

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support workers or allies will be acting in an informal decision-making capacity as part of a person’s support network. Hence the RSA should acknowledge the role of informal decision-makers in people’s lives. However, it would not be reasonable to accept that the boarding house/hostel operator could act as an informal guardian for this purpose, given the inherent conflict of interest.

4. Access to visitors, support workers and advocates
The lives of many vulnerable people are frequently circumscribed by the physical boundaries of their boarding house or hostel. Seldom are there opportunities to venture into the wider community, let alone develop meaningful connections to activities and people that lie beyond the hostel’s front door. “Outsiders” will infrequently cross the threshold; few of those that do will form a complete picture of what life is like for the vulnerable person. Residents with impaired capacity are often unable or unwilling to speak up about issues that concern them. Moreover, boarding house owners/operators often exercise strict controls over facilities; it is not uncommon to hear reports of outsiders (including family members, support workers, advocates, friends or allies) being denied access to the premise, and hence to the vulnerable person within, without good reason. Currently, the RSA contains no provisions to support residents’ rights to have visitors, including support workers or advocates.

 The Office strongly supports legislative provisions within the RSA to protect the
rights of residents to receive visitors, particularly support workers and advocates, without fear of reprisal. This is particularly important given that external support may in fact assist an individual to sustain their tenancy, as well as meet other personal needs.

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