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Copyright A 1998 by Homeswest, 99 Plain Street, East Perth, Western ... any means, electronic, mechanical, photocopy, recording or otherwise without the ...

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									                        HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



                  HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




                 Acknowledgment:

                 Homeswest wishes to acknowledge and thank Shelter WA Inc, in
                 particular Jack Mansveld and Camille Inifer, for producing this
                 manual in conjunction with the Rental Operations Branch.




Copyright © 1998 by Homeswest, 99 Plain Street, East Perth, Western Australia.
All rights reserved. No part of this document may be reproduced in any form or by
any means, electronic, mechanical, photocopy, recording or otherwise without the
prior written consent of Homeswest
TABLE OF CONTENTS
      TABLE OF CONTENTS ...................................................................................................                1
      PREAMBLE .....................................................................................................................       2
1.    HOMESWEST ...................................................................................................................        3
      •     Homeswest
      • Homeswest Organisational Structure
2.    COMMONWEALTH-STATE HOUSING AGREEMENT...............................................                                                   6
3.    ADMINISTRATIVE LAW & DISCRETIONARY DECISION MAKING......................                                                              8
4.    RESIDENTIAL TENANCIES ACT 1987.........................................................................                              10
      •     The Tenancy Agreement
      •     Rights & Responsibilities Under the RTA
      • The Local Court
5.    THE HOMESWEST APPEALS MECHANISM...............................................................                                       19
      •     Access & Equity
      • Legal & Policy Framework in which HAM Operates
6.    THE THREE TIERS OF THE HOMESWEST APPEAL SYSTEM .................................                                                     23
      FIRST TIER .......................................................................................................................   23
      •     Procedural Guidelines – Tier 1 Decision Review
      •     Tier 1 Decision Review – The Making of a Decision
      • Tier 1 Letters and Forms
      SECOND TIER..................................................................................................................        34
      •     Procedural Guidelines – Tier 2 Appeals Committee Hearings
      •     Tier 2 Review – The Making of a Decision
      •     Conduct of Hearings
      • Tier 2 Letters and Forms
      THIRD TIER......................................................................................................................     56
      •     Procedural Guidelines – Tier 3 Public Housing Review Panel Sittings
      •     Tier 3 Review – The Making of a Decision
      •     Conduct of Hearings
      • Tier 3 Letters and Forms
7.    FREEDOM OF INFORMATION......................................................................................                         66
      • Homeswest FOI Information & Application Form
8.    STATE OMBUDSMAN ....................................................................................................                 67
      • Information and Forms
9.    EQUAL OPPORTUNITY COMMISSION .......................................................................                                 68
      • Information and Forms
10.   EQUAL OPPORTUNITY TRIBUNAL.............................................................................                              70
11.   THE ADMINISTRATION OF HAM ................................................................................                           71
      •     Members Information & Training
      •     Appointment of Members
      • Guidelines for the Appointment of Community Representatives – Tier 2
12.   THE HOMESWEST APPEALS POLICY.........................................................................                                76


                                                                          1
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




PREAMBLE

x HOMESWEST APPEALS MECHANISM (HAM)
This Homeswest Appeals Mechanism Information Manual has been prepared with the
understanding that all updated copies of brochures, forms, letters and other relevant
information will be provided and inserted as any changes to the appeals process occur.

The aim of the Manual is to provide HAM members and Homeswest Officers with
knowledge of the Appeals process at each Tier and to encourage consistency of decision
making.

This Manual is to be used as a reference by Homeswest officers making any unfavourable
decisions and members of HAM committees and should be read in conjunction with the:

•   Homeswest Rental Policy Manual
•   Homeswest Rental Maintenance Manual
•   Homeswest Legal Recovery Procedures Manual
•   Homeswest Guide to Customer Rights & Responsibilities

All members will have access to a copy of the HAM Information Manual and the
associated reference manuals listed above.

Brochures, forms and letters relating to the appeals are included in the relevant section.

Resources and further information included with the HAM Manual are to assist with a
better understanding of the Appeals process, customer rights and relevant Homeswest
policy and practices.




                                             2
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




HOMESWEST

Homeswest is the trading name of the State Housing Commission of Western Australia
and is responsible to the Minister for Housing. It is partly, through the State Government
to the Commonwealth State Housing Agreement. The agreement provides the framework
through which Commonwealth Funds are directed to the States to provide housing
assistance to people on low incomes.

Homeswest administers the Housing Act, 1980 and the Housing Loan Guarantee Act,
1957. It has responsibility to comply with other State and Commonwealth legislation
including:

Commonwealth Legislation –
• Housing Assistance Act, 1989.
• Privacy Act, 1988.
• Disability Discrimination Act, 1992.

State Legislation –
• Housing Agreement (Commonwealth and State) Act, 1996.
• Financial Administration and Audit Act, 1985.
• Residential Tenancies Act, 1987.
• Equal Opportunity Act, 1984.
• Freedom of Information Act, 1992.
• Environmental Protection Act, 1986.
• Fair Trading Act, 1987.
• Consumer Credit (Western Australia) Act, 1996.

One of the objectives of Homeswest is to provide appropriate and affordable housing
options for people who cannot access the private market. Its programs are directed at
low-income renters and home buyers, disadvantaged groups and people with special
housing needs.

Homeswest divides its services into three major programs each with several sub-
programs.

Rental Operations Program
To provide affordable rental accommodation to Western Australians on low to moderate
income with the following programs:
•   Public Rental Housing – to provide affordable, safe and secure rental
    accommodation to those Western Australians with a housing need.
•   Bond Assistance – to provide bond assistance loans to help people obtain private
    rental accommodation.



                                            3
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Homeswest (continued)


•   Community Housing – to develop a viable community housing sector in Western
    Australia including cooperative housing, joint ventures, crisis accommodation and
    housing for special needs groups.
•   Aboriginal Housing – to ensure that Aboriginal people have appropriate housing and
    support services.
•   Property Leasing – to lease property other than vacant land, to maximise returns and
    protect the asset while awaiting redevelopment, refurbishment or sale.
•   Procurement – to ensure the timely deliver of suitable rental housing into the
    appropriate program of need, either by constructing housing units on Homeswest land
    or land owned by joint venture partners, or by acquiring land or completed house and
    land packages in locations of high rental demand.
•   Land Acquisitions – to purchase single residential, grouped housing lots for rental
    housing and broadhectare land for future development to accommodate the rental
    program and first home owner market.
•   Construction – to provide cost-effective residential dwellings, funded by the
    Commonwealth State Housing Agreement, by using private sector design, contract
    administration and building resources.
•   Minor Works – to perform minor upgrades of selected Homeswest properties by
    contract.


Home Ownership Program
To provide affordable home ownership opportunities to Western Australians at the lower
end of the home ownership market:
•   Keystart Housing Scheme – to provide access to home ownership for households
    which would generally not quality for public rental assistance, but who would have
    difficulty in obtaining private sector finance.
•   GoodStart Home Loan (Shared Equity) Scheme – to provide access to home
    ownership for households which would otherwise quality for public rental assistance,
    but may not quality under Keystart or private sector finance.
•   Wisechoice – to provide appropriate accommodation to seniors through sales of
    dwelling units to people over 55 years of age.
•   Rental Sales (Right to Buy) – to assist public tenants into home ownership through
    sales of rental properties and to dispose of rental stock no longer required by
    Homeswest.
•   Access Home Loan Scheme - to enable people with disabilities to purchase or build
    purpose-designed homes of their own or modify an existing home to cater for their
    needs.
•   Aboriginal Home Ownership Scheme - to help more Aboriginal people and Torres
    Strait Islanders into home ownership.
                                          4
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Homeswest (continued)


Land Program
To develop and/or redevelop land for sale to Western Australians on low to moderate
incomes and for Homeswest’s rental program:
•   Leasing of Vacant Land - to lease Homeswest property and land assets.
•   Land Development – to develop Homeswest’s land holdings into residential land
    with the aim of providing a supply of lots to meet Homeswest’s program and the
    needs of the public, especially first home buyers.
•   Redevelopment – to effectively manage Homeswest’s assets by replacing older, high
    maintenance housing with new housing that has greater variety to meet the needs of
    the community.
•   Estates Improvement – to redevelop older public housing estates to create more
    attractive living environments, to reduce Homeswest’s rental presence and to
    encourage home ownership.
•   Land Sales – to sell vacant urban and commercial land from broadhectare land
    holdings and some estate improvement in conjunction with private sector partners,
    thereby achieving a sharing of the costs involved and revenue received.




                                          5
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




COMMONWEALTH STATE HOUSING AGREEMENT
(CSHA)


The CSHA is a multi-lateral agreement between the Commonwealth and the States. It
outlines the terms and conditions under which the Commonwealth agrees to provide
funds for housing assistance. The Commonwealth also provides direct assistance to
private renters on low incomes by way of rental assistance payments administered
through the Department of Social Security.

The CSHA, which commenced in 1945, has been one of the most enduring
Commonwealth-State agreements and the focal point for discussion about housing policy.
The original agreement grew out of the many reforms in the post war era. The 1930’s
saw the beginning of public housing sectors in some of the states as a response to major
housing problems in Australia.

With the Commonwealth gaining control of income tax revenue, any major initiatives
directed to low income earners for their housing needs (and therefore any expansion of
the public housing sector), could not occur without Commonwealth participation. The
CSHA became the means by which this participation took place.

Since the first agreement in 1945, the terms and conditions of the CSHA have shifted
every five to ten years as the perceptions of what constitutes housing assistance have
changed.

The 1945 agreement provided funds for rental purposes only and complemented other
house purchase programs, particularly the War Service Home Scheme.

The 1956, 1961 and 1966 agreements shifted the focus of the CSHA away from rental
housing towards home ownership.

The 1973 agreement was characterised amongst other things by an attempt by the
Commonwealth to increase control over housing expenditure by the States. An example
of this was to put a limit on the amount of funds allowed to be used for home purchase
schemes.

The 1978 agreement was informed by two major reports which raised concerns about
the targeting of public housing and recommended a shift to market rentals as a way of
reducing subsidies to higher income tenants.

The 1981 agreement introduced the significant requirement that the States match funds
received from the Commonwealth.




                                           6
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Commonwealth/State Housing Agreement (continued)

The 1984 agreement reinstated cost rentals, and introduced or expanded special
programs such as Community Housing and Crisis Accommodation.

The 1989 agreement was formed in a climate which saw challenges to the CSHA itself.
Some major changes were to recognise Commonwealth funds as grants rather than loans,
the lending for home purchase to be financed mainly by private funds and the
establishment of the annual Commonwealth – State planning process.

The 1996 agreement was to provide housing assistance by which people could obtain
affordable, secure and appropriate housing. While the 1996 CSHA provided a clearer
performance-based framework for housing assistance, the narrowing of objectives has
also diminished its scale.

A requirement of the CSHA is that States enter into Bilateral Strategic Plans with the
Commonwealth. The latest Plan which covers the period 1996/97 to 1997/98 details
agreed priorities for housing assistance.

The objective of the current CSHA (1999 agreement), is to provide appropriate,
affordable and secure housing assistance for those who most need it for the duration of
their need. The 1999 agreement has built on the 1996 agreement in that it has been based
on a performance-based framework.

A Bilateral agreement has been entered into with the Commonwealth Government with
key outcomes being:

•     housing assistance better targeted according to need,
•     Better and safer communities,
•     Self sufficiency through targeted Home Ownership schemes,
•     Viable alternative housing solutions,
•     Better meeting the housing needs of Aboriginal people, and
•     Improving the financial viability of the Department of Housing and Works.




Source: Course material from the Graduate Certificate in Housing Management and Policy, Swinburne
University of Technology.
                                               7
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




ADMINISTRATIVE LAW
AND DISCRETIONARY DECISION MAKING

x ADMINISTRATIVE LAW
Administrative law is the name given to that area of law which defines the general rules
to be followed by government in its administrative actions and decision-making
processes.

The bulk of government administration is carried out by departments. Each department is
responsible to a Minister. Departments are not the only bodies responsible for
administration of government policy.

Responsibilities in some special areas are given to Commissions and Boards. These are
often called statutory bodies. Homeswest (State Housing Commission), is such a body.
These bodies are set up by special Acts which define their functions, powers and
operating procedures.

Acts usually list various discretions or functions which may be exercised by the Minister
or public servants. Obviously, as a practical matter, the individuals named in the
legislation cannot deal personally with the large bulk of matters over which they have
authority.

It is therefore normal to delegate functions. So it is quite common for officers, often at
junior levels within a department or statutory body to decide particular cases involving
citizens.

An individual can attempt to show that the administration of a particular government
policy has affected them in some personal way. For example, they have been denied
priority housing assistance or they have not been able to get an answer to a letter.

The first situation would present a possibility of seeking an administrative appeal (say to
the Homeswest Appeals Mechanism), while the second situation would be suitable for
complaint to the Ombudsman.

Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 582, stated that the law
in relation to administrative decisions:

“Has now developed to a point where it may be accepted that there is a common law duty
to act fairly, in the sense of according procedural fairness, in the making of
administrative decisions which affect rights, interests and legitimate expectations, subject
only to the clear manifestation of a contrary statutory intention”.

Sources:
The Law Handbook (WA) Fourth Edition: Published by Sussex Street Community Law Service Inc.
Legal Aid Western Australia: Community Worker Training Program: 15 May 1996.

                                                8
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Administrative Law & Discretionary Decision Making (continued)




x DISCRETIONARY DECISION MAKING

Homeswest Rental Policy cannot provide a solution to all contingencies. Many situations
encountered in the provision of public housing are complex and varied and are not clearly
covered by specific policy.

In that regard, a number of Homeswest policy statements have as a qualifying guideline,
that discretion may be used in particular circumstances.

In such situations, Homeswest officers must use discretion to arrive at a solution, taking
into account the tenants particular circumstances and the general philosophy of
Homeswest.

In all cases a discretion must be exercised reasonably. This means the decision maker
must:

•   Bring an impartial mind to the issues for determination.
•   Take into account those matters they are bound to consider.
•   Exclude from their consideration those matters that are irrelevant.

Any decision made using discretion by a Homeswest officer must be clearly documented
giving the reasons for the decision including the factors or matters taken into account.

This type of decision is appealable through the Homeswest Appeals Mechanism (HAM).

A situation may also arise where an applicant or tenant’s circumstances fall outside
existing policy and guidelines and a decision made solely within current policy could
result in inequitable treatment of the customer.

When such non-standard situations arise, Homeswest reserves the right to use discretion
to make a decision regarding a customer which may vary, modify or fall outside existing
policy and guidelines.

This type of discretionary decision made by a Homeswest officer is appealable through
HAM. In the case of Executive decisions, refer to Executive Decisions – Homeswest
Appeals Mechanism Policy 6.2 and 9.5.




                                             9
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




RESIDENTIAL TENANCIES ACT 1987 (RTA)

The RTA regulates the rights and responsibilities of tenants and landlords in Western
Australia.

The RTA establishes:
•   Who is covered by the Act.
•   Who is responsible for administering the Act.
•   Where and how disputes are determined.
•   Rights and obligations of the owner and tenant.
•   How tenancy agreements may be terminated.

Homeswest is currently exempt from complying with the following sections of the
RTA.

a) Section 29(4)(b) that would otherwise require any security bond paid by the tenant to
   Homeswest to be paid to an authorised financial institution or to the bond
   administrator.
b) Section 30(1) which would otherwise require Homeswest to:
    i.   give to the tenant not less than 60 days notice before a rent increase becomes
         payable; and
    ii. not to increase the rent during the first six months of the tenancy or before six
        months have elapsed from the previous date of increase.
c) Section 33 that would otherwise require that Homeswest give the tenant a receipt for
   the payment of rent within three days of payment.
d) Section 43 that relates to urgent repairs as Homeswest provides an after-hours
   emergency service.




                                           10
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE TENANCY AGREEMENT


A tenancy agreement is a written or verbal contract between the tenant and landlord
setting out the conditions of the tenancy.

The agreement must confirm to the Residential Tenancies Act although the owner may
contract-out of certain responsibilities.

Tenancies are either for a fixed term or periodic.

The former has a definite start and end date and the tenancy agreement can only be
broken before the expiry date in certain situations. The latter runs for an indefinite length
of time.

The Homeswest tenancy agreement is an approved document under the Housing Act and
cannot be substantially changed unless authorised. If Special Conditions are placed on a
tenancy agreement, they must be detailed on a separate page and have been explained to
and signed by the tenant.

Homeswest currently uses two types of periodic tenancy agreements. They are for single
detached dwellings and medium density dwellings such as town houses and apartments.

Fixed Term Tenancy Agreements

Under certain circumstances, Homeswest will enter into a fixed term agreement with a
tenant. This, in the main occurs when people are provided with emergency housing. In
those situations, the tenants are originally offered a 3 month lease.




Source: Homeswest Legal Recoveries Procedures Manual; December 1997

                                              11
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




RIGHTS AND RESPONSIBILITIES UNDER THE RTA


All Homeswest tenancies are subject to the RTA except for sections of the Act from
which it is exempt.

Although the Homeswest Appeals Mechanism (HAM) does not make determinations
with regard to the RTA (this is done by a Magistrate in the Local Court), Homeswest
policy and procedures must conform to the Act.

It is therefore important for HAM members to have a reasonable understanding of the
RTA with regard o the rights and responsibilities of Homeswest and its tenants.

Some of the more important matters are:

PROPERTY CONDITION REPORT AND TENANT LIABILITY

A Property Conditions Report (PCR) records the state of the property at the start of the
tenancy. A full report at the beginning helps to make sure that disputes are minimised at
the end of the tenancy.

Although the owner is not obliged by the RTA to provide the tenant with a PCR at the
commencement of the tenancy, Homeswest policy says this must be done.

At the end of a tenancy, the PCR is useful in the determination of any Tenant Liability
debt. Under Homeswest policy tenants are responsible for the cost of repairs to a
property due to neglect, willful damage and misuse. They are also responsible for the
cost of heavy cleaning and rubbish removal.
(Refer to Rental Operations Policy Manual for more details).

RENT

Rent is paid on the first day of the tenancy and then regularly usually weekly, fortnightly
or monthly and always in advance. No more than two weeks rent in advance may be
asked for the start of the tenancy (s.28(1)).

Receipts

The owner/agent must give a receipt within three days of a rent payment (s.33) unless the
rent is paid directly into a bank account (s.33(2)). The receipt must contain specific
information such as the period for which the rent is paid, the address of the property and
the name of the person paying. Homeswest is exempt from the requirement to give rent
receipts.




                                            12
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Rights & Responsibilities under the RTA (continued)

Rent Increases

Written notice from the owner/agent advising of a rent increase including the amount, the
day it will start and a minimum of 60 days notice must be given on periodic tenancies.
The owner/agent cannot increase the rent more than once every six months (s.30).
Homeswest is exempt from this section as most rent is assessed by the rent rebate method
and will change depending on income of the people living in the house.

During a fixed term tenancy, the rent can only be increased if there is a specific clause in
the agreement allowing the increase and 60 days notice is given.

Rent Arrears

Rent arrears start as soon as a tenant is overdue with a rent payment. As with other debts,
the issue may be negotiated with the owner and a repayment agreed upon, however, the
owner does not have to negotiate. Homeswest policy however, demands that negotiation
takes place.

In May 1993 the Homeswest Board of Commissioners formalised the practice of arrears
repayments. The guidelines have been developed to assist in negotiating arrangements
with tenants and are aimed at preventing tenants from accumulating large debts which are
often beyond their capacity to pay.

Extenuating circumstances must be considered when using the guidelines

Basic Rules

•   Where debts exceed $300, a 50% up front payment is to be sought from the tenant.
•   Where debts do not exceed $300, payment in full is required.

Where the tenant has a demonstrated inability to repay the required lump sum a proposal
to repay may be arranged.

For all debts, Homeswest will seek a proposal so that the combined total of the tenant’s
arrears and current rent does not exceed 30% of their total assessed household income.

(Refer to Rental Operations Legal Recovery Procedures Manual for more details).

MAINTENANCE AND REPAIRS

Owner’s Obligations

Under the RTA, the owner must provide a reasonably clean and habitable dwelling, and
carry out maintenance and repairs (consistent with the age, character and life expectancy
of the premises) (s.42)).

                                            13
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Rights & Responsibilities under the RTA (continued)

The owner can contract out of (s.42).

Homeswest like any other owner must provide maintenance. Homeswest has a
maintenance policy which states that emergency maintenance (eg. burst water pipes) will
be carried out within three hours, priority maintenance (eg. hot water system, roof leaks)
within 48 hours and routine work within 10 days.

Tenant’s Obligations

The tenant is responsible for keeping the premises reasonably clean, and telling the
owner/agent of any damage within three days of it happening (s.38). The tenant is not
allowed to cause or permit damage, on purpose or by being negligent (s.39).

A tenant cannot stop paying rent under any circumstances even if the owner fails to do
maintenance and repairs. If the tenant stops paying rent they are breaching the tenancy
agreement and the owner can take action.

If the tenancy agreement has not excluded (s.43) the tenant can get urgent repairs done
and get the cost back from the owner. Homeswest is exempt from this section.

SECURITIES & LOCKS

The owner must provide the rented premises with locks and any other devices needed to
make the premises reasonably secure (s.45.1(a)). “Other devices” may include windows
that can be secured properly.

PRIVACY & QUIET ENJOYMENT

Tenants have a right to peace, comfort, privacy and quiet enjoyment in the use of the
property (s.44).

(s.46) gives the owner the right to enter the property after giving notice to the tenant. If
the owner/agent has not contracted out of (s.46), they may only enter the premises with
advance notice except in the case of emergency or if the tenant consents immediately
prior to them entering.

BOND

Requirements

Bond cannot be more than equal to four weeks rent (s.29(1)(b)(i)) plus $100 for pet bond
(s.29(1)(b)(ii)). A receipt for the bond must be given to the tenant (s.29(4)(a)).




                                            14
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Rights & Responsibilities under the RTA (continued)

The RTA says that bond money must be put into either a joint account with a financial
institution (bank, building society); or in a Real Estate Agent’s Trust Account in
accordance with Schedule 1 (s.2)(1)). This means that the money is secure until both
parties agree on how it should be disbursed at the end of the tenancy.

Homeswest is exempt from (s.29), and does not have to lodge bonds in a joint account or
dispose of the monies as described by the RTA. However, there is a bond disposal
process in Homeswest policy.

(Refer to Rental Operations Policy Manual for more details).

ENDING A TENANCY

A tenancy can be terminated (ended) at any time by both parties agreeing.

Tenants can never be forced to leave their house unless the owner has a Court order (a
termination notice is not an eviction order).

Tenant ending a tenancy

If the tenancy is periodic a tenant must give 21 days notice in writing to the owner when
they wish to end the tenancy.

If the tenancy is for a fixed term there are no legal requirements for either party to give
notice at the end of the fixed term.

If the tenant wishes to break a fixed term agreement, the owner/agent may refuse.
However, it is often the case that the owner will allow the tenancy to end as long as the
tenant agrees to pay the owner for losses such as advertising costs and rent until a new
tenant moves in.

If the tenant wishes to terminate a tenancy on the grounds of an owner’s breach, the first
step is to attempt to negotiate the termination. However, if the owner does not agree, the
tenant can apply to the Court for an order terminating the agreement under (s.75) of the
RTA. However, they will have to prove the owner’s breach is serious enough to justify
termination. It is also important to show that the owner has been made aware of the
breach and has failed to have it remedied. In such cases, a tenant can ask for relocation
costs (s.15(2)(c)).

Owner ending a tenancy

As above, any tenancy can be terminated at any time if all parties agree and it is
confirmed in writing.




                                            15
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Rights & Responsibilities under the RTA (continued)

Owner ending a tenancy where there is no breach –
Set out below is a brief overview of the circumstances in which an owner/agent can
instigate termination of a tenancy.

An owner may end a periodic tenancy by serving a 60 day notice of termination without
providing a reason. Such a notice cannot be opposed unless the tenant believes that the
owner was acting in retaliation because they took steps to secure their rights as a tenant.
(s.71(3)(b) and 71(4).

If the tenancy is periodic an owner need only give 30 days notice if the premises have
been sold and it is a condition of sale that vacant possession be provided to the new
owner/s.

If an owner wishes to terminate a tenancy at the end of a fixed term, there are no legal
requirements for notice.

If the owner wishes to terminate on grounds of hardship they may make application to the
Court under (s.74) of the RTA. If they are successful the Court may order compensation
to the tenant for any resultant loss.

Owner ending a fixed term or periodic tenancy when tenant is in breach –
An owner may give notice to terminate the tenancy if the tenant is in breach of the
tenancy agreement.

The owner must give notice to the tenant with the details of the breach and give at least
14 days for the tenant to fix the problem before a Notice of Termination can be issued. If
the breach is fixed the process should stop but in many cases it does proceed to Court. In
the Court the owner will have to prove:

•   that the tenant is in breach (s.71(2)(b));
•   that the correct notices have been served, according to the prescribed time frame
    (s.71(2)(a)); and
•   that the breach is in all the circumstances of the case serious enough to justify
    termination (s.71(2)(c)).

An owner has two options to terminate a tenancy when the tenant is in rent arrears:

1. The owner may serve a notice of breach of agreement giving the tenant at least 14
   days to pay the money owing. If the money is not paid within the time specified on
   the breach notice, the owner may serve a Notice of Termination. Even if the money
   is paid, the matter can still proceed to Court.




                                                 16
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Rights & Responsibilities under the RTA (continued)

2. The owner may issue a Notice of Termination. If the tenant does not leave before the
   date on the notice, the owner can apply to the court for an order terminating the
   agreement. However, the tenant can repay all monies owing up to the day before the
   Court hearing and this will stop any further action.

Homeswest uses the first of the options in its arrears management (refer to Rent Arrears
above).




                                          17
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE LOCAL COURT

The Local Court has a section known as the Small Disputes Division which is authorised
under the Residential Tenancies Act 1987 to hear disputes relating to tenancy agreements
where the amount of the claim is not more than $6000.

A hearing in the Small Disputes Division is controlled by a Magistrate who makes the
ultimate decision on the outcome of the dispute.

When both parties have finished presenting their cases, the Magistrate will make a
decision which is generally final. Usually the Magistrate will outline the problem,
summarise what has been said and then give the decision (the Order). The Local Court
should send a copy of the Order to both parties after the hearing.

Section 71 of the Residential Tenancies Act is one of the sections governing the decision
of whether a Magistrate will make an Order terminating the tenancy agreement and
which is relevant to Homeswest.

The Magistrate must make an Order terminating the agreement if they are
satisfied:

•   The Notice of Termination was given in accordance with the Act, Section 71(2)(a)).
•   Homeswest has established the ground for termination that it notified in the Form 12
    Application to the Court, (Section 71(2)(b)).
•   That the breach of the tenancy agreement by the tenant is in all the circumstances of
    the case such as to justify termination of the agreement, (Section 71(2)(b)).

The Magistrate may refuse to make an Order terminating the agreement if they are
satisfied (amongst other things):

•   That Homeswest was wholly or partially motivated to give the Notice of Termination
    by the fact that the tenant had complained to a public authority or taken steps to
    secure or enforce their rights as a tenant, (Section 71(3)(b) of the RTA).

    Should such an alleged situation occur within 6 months of the Notice of Termination,
    the burden is on Homeswest to prove it was not so motivated, (Section 71(4)).

•   The tenant has remedied the breach but in every case the Magistrate shall take into
    account any previous breaches of the agreement by the tenant, (Section 14(4)).




Source: Tenants Advice Service Inc : Tenancy Law Training.
        Community Workers, November 1997.
        Rental Operations Legal Recovery Procedures Manual.
                                                18
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE HOMESWEST APPEALS MECHANISM
(HAM)
The presence of an administrative appeals system within each State Housing Authority is
a requirement of the Commonwealth State Housing Agreement (CSHA), which in its
1996 form states:

“Consumers will have the right to access effective mechanisms for the investigation and
resolution of complaints including an independent appeals mechanism agreed by the
Minister and each State Minister” (Sub clause 5(4)(a)(v)).

The Homeswest Appeals Mechanism (HAM), was approved by the State and
Commonwealth Housing Ministers in November 1993 under the previous CSHA (1989),
which required the establishment of an independent tribunal to enable applicants to
appeal decisions relating to the provision of housing assistance and dealings with housing
authorities.

Purpose

Homeswest’s stated purpose in having an appeals mechanism is to enhance the quality of
service to its customers by seeking effective resolution of disputes. The appeals
mechanism is intended to reinforce Homeswest’s responsibility to apply policy in a fair
and equitable manner and to be accountable for decisions made.

Homeswest is empowered under the State Housing Act, 1980 to devise policies and
procedures to ensure the proper deliver of the appeals mechanism. Homeswest have
developed the following strategies as a means of achieving an appeals system which is
fair and equitable:

1) ongoing evaluation of the appeals mechanism;
2) providing staff training and education on the principles of the appeals system;
3) identifying resourcing needs arising from the implementation and operation of the
   appeals mechanism;
4) providing public information on the appeals mechanism;
5) establishing a strategy for reporting and making recommendations on policy matters
   between the Public Housing Review Panel and Homeswest;
6) nominating a Regional Housing Appeals Officer at each regional office to manage
   and oversee all appeals through Tiers One and Two; and
7) providing a 008 number for all general enquiries and information concerning
   Homeswest’s policies.




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                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



The Homeswest Appeals Mechanism (continued)


Principles
The principles which Homeswest uses to direct the appeals mechanism are as follows:
•   Homeswest is a service based organisation and customer service is its priority.
•   Customers have a right to question decisions made by Homeswest and be assisted in
    their access to the appeals process.
•   Homeswest staff are accountable for their actions and decisions.
•   Open communication is necessary for the early resolution of disputes.
•   Homeswest must have regard for individual customer rights in balance with its
    responsibilities to its overall customer base.

What decisions can be appealed?
Any decision concerning applications relating to the provision of public rental housing,
loans, bond assistance or emergency housing. Assessment of tenant liability charges or
transfer applications are also included.

A decision may not be appealed:
•   which has been or is being considered by the State Ombudsman or the Minister for
    Housing; or
•   where legal action is being or has been taken; or
•   which is of general application eg. decision to increase all Homeswest rents.

Objective

HOMESWEST’S STATED OBJECTIVE OF THE APPEALS SYSTEM IS TO
PROVIDE A MECHANISM OF REVIEW THAT IS QUICK, INFORMAL,
THOROUGH, FAIR AND INEXPENSIVE.

It is inherent that the rules of Natural Justice (Procedural Fairness) be applied in
the decision making process. (refer to Natural Justice (Procedural Fairness))

The Three Tier System
The Homeswest Appeals Mechanism (HAM), is bounded by a three tier process.

This model aims for effective conciliation and mediation at the earliest stages and
informality and a quick turn around in decisions. Grievances must progress sequentially
through the levels if not resolved in the first instance.



Source: Homeswest Policy Manual, Section 11, Homeswest Appeal Mechanism

                                              20
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




ACCESS AND EQUITY



To ensure access and equity, Homeswest has an obligation to provide services which are
accessible to people who may be discriminated against due to their race, religion,
language or culture, health status or other personal characteristic or circumstances (see
Equal Opportunity Act – section 10).


Barriers to full participation by the tenant in relation to decision making on Homeswest
matters can include:
•   the lack of fluency in English;
•   the lack of familiarity for tenants and some advocates with the way Homeswest
    policy and practice works;
•   the limited knowledge of services available to the community; and
•   the tenant’s cultural situation.


To overcome any barriers, and to ensure equality of opportunity and access to services
such as the appeals, Homeswest is required to provide:
•   customer information in languages other than English;
•   customer access to interpreting and translating services; and
•   education of Homeswest officers on cultural awareness and sensitivity to tenants’
    needs.




                                            21
                HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



•    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




     ORGANISATIONAL CHART

    Framework for the Homeswest Appeals Mechanism
             Adverse decision is made.

    TIER 1

    x Internal review is automatically done by officer not
      involved in the original decision.

         Reviewing officer makes decision.


    TIER 2
    x Second Tier review is available if still dissatisfied.

        Appeal to the Regional Appeals Committee.

        (senior Homeswest officer; community representative)

    TIER 3
    x Third and final Tier is available.

        Appeal to Public Housing Review Panel.

        (panel of three community members appointed by the
        Minister)


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                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE THREE TIERS OF THE HOMESWEST APPEAL SYSTEM


First Tier

x Review by a Homeswest officer not involved in the original decision.

An adverse decision will automatically be reviewed in the office at which the decision
was made, prior to Homeswest sending any correspondence to the applicant or tenant.

The reviewing officer must be:
•   involved in the application of Homeswest policy at a level senior to the original
    decision maker or in the case of Accommodation Managers, at the same level;
•   not involved in the original decision; and
located in the office at which the original decision was made.

If the original (adverse) decision is endorsed, the applicant is sent an Unfavourable
Decision letter detailing the names and telephone numbers of the officers involved in the
review, a copy of the completed First Tier Homeswest Decision Review Form detailing
the reason for the decision and an Application to Appeal to the Second Tier.

Also included is the Homeswest Appeals brochure giving information about the appeals
process and the customer’s right to have the decision reviewed, and a list of agencies
providing advocacy services.

Homeswest must send this documentation within seven days of the original decision.

The applicant is encouraged to make contact with either the decision maker or the
reviewing officer if they wish to obtain information about:

•   how the decision was made;
•   the reasons for the decision;
•   the policy relating to the decision.
or if they are unhappy with how the decision was made.

If the person chooses to pursue the matter to the next Tier (Tier 2), within 12 months of
the original decision they must complete the blue Appeals Mechanism form, stating why
they believe the decision to be wrong. They may attach documentary evidence to support
their case.




                                            23
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




PROCEDURAL GUIDELINES
TIER 1 DECISION REVIEW

1.   Before a customer is provided with an unfavourable decision in writing, the decision
     is to be reviewed. The reviewer will be an officer nominated by the Regional/Branch
     Manager to review decisions made by officers at the level of the decision-maker.
     Wherever possible the review officer is to be a higher level than the original
     decision-maker.

     Examples of unfavourable decisions are:

     •   refusal of an application for priority;
     •   withdrawal of listing, following customer rejection of a valid offer of
         accommodation; and
     •   assessment that maintenance charges are the responsibility of the tenant.

     The decision maker is to complete the first section of the Homeswest Decision
     Review Form explaining the reasons for making a decision unfavourable to the
     customer, in the context of Homeswest policy.

     All relevant documents about the decision are to be provided to the nominated
     review officer eg. detailed report of interview for priority; verification of assessment
     of all charges for the outgoing tenant.

     NB The Homeswest Decision Review Form is only to be used for reviewing an
     unfavourable decision. The form is not to be used for the purposes of an internal
     review by a senior officer of a favourable decision.

2.   The Review Officer is to ensure all the facts are available for making the decision eg
     a Homeswest Medical Form for all applications involving a medical issue; and
     review the matter on the following basis:

     •   what are the facts of the case?
     •   what policy was applied?
     •   was the policy relevant?
     •   was the policy correctly applied to the facts?
     •   was the customer situation given comprehensive consideration?
     •   was Homeswest discretion fairly exercised, having regard to facts and policy?

     The Homeswest Decision Review Form is to be completed providing reasons for the
     reviewed decision. The Review Officer is to discuss the findings with the original
     decision maker.

                                              24
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Procedural Guidelines – Tier 1 Decision Review (continued)


     There is a special form to be used in reviewing Tenant Liability charges and which
     follows these Procedural Guidelines.

3.   In the event the review supports an unfavourable decision, a copy of the Homeswest
     Decision review Form is to be provided to the customer. The form should be typed,
     if the hand writing is at all difficult to read.

     The copy of the Homeswest Decision Review Form is to be forwarded to the
     customer with:

     •   a covering letter (Stand00A), which provides name and telephone number of the
         original decision maker and review officer, encourages customer contact to
         discuss the decision and advises appeal rights;
     •   a copy of the relevant policy;
     •   an appeal information pamphlet;
     •   an appeal application form (Tier 2);
     •   a list of advocacy agents; and, in the case of vacated charges;
     •   a copy of the outgoing Property Condition Report.

     The Decision Review Form, covering letter and policy extract are to be placed on
     file.

     If the customer is being assisted by an advocate and has given written permission for
     the advocate to act on his/her behalf, a copy of all correspondence is to be forwarded
     to the advocate.

4.   Contact by the customer in response to the unfavourable decision is an opportunity to
     confirm all the facts about the customer case, explain Homeswest policy and the
     reasons for the decision and discuss the next step of the appeal process.

5.   Exceptions to the rule are:

     •   day to day maintenance eg. painting, pest control;
     •   upgrade eg. wing fences, heating; and
     •   rental assessments eg. grant of rental subsidy.

     The above categories are appealable but as the type of decision made is not
     necessarily unfavourable to the customer, an automatic review need not be carried
     out eg. decision that a vacated property does not require repainting or the calculation
     of rent payable.


                                             25
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Procedural Guidelines – Tier 1 Decision Review (continued)

The appeals process is to start when such a decision leads to a query/request from a
customer which is declined.

For example, a Tier 1 Decision Review is to be carried out

•   If the new tenant of an old property requests painting of the kitchen and this is
    refused;
•   A tenant disputes an account for repairs; or
•   A tenant with a concession queries the date a rental subsidy is granted.




                                            26
REVIEW OF VACATED TENANT LIABILITY CHARGES


        ITEM            CONDITION ON CONDITION ON CHARGE   TO
ITEM#   (Description)   OCCUPATION   VACATING     TENANT        DECISION




                                     27
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




TIER 1 Decision Review
THE MAKING OF A DECISION
WHAT IS INVOLVED?

The Homeswest Appeals Mechanism (HAM) is an administrative appeals system that
reviews decisions on the merits of the case; that is, the facts and policy aspects of the
original decision are all reconsidered afresh and a new decision is made, either agreeing
with, partly changing, or setting aside the original decision.

HAM is informed by the principles of natural justice or procedural fairness. This means
that the decision must be reviewed fairly, equitably and without prejudice.

The reviewer, like the original decision maker, will make findings of fact (that is
they must determine the “correct” and appropriate facts), and apply the relevant
policy to those findings to make a decision.

One way of describing this process is for the reviewer to ask the following six questions
for each case:
1. What are the facts of the case?
2.   What policy was applied?
3.   Was the policy relevant?
4.   Was it correctly applied to the facts?
5.   Was the customer’s situation given comprehensive consideration by Homeswest?
6.   Was Homeswest’s discretion fairly exercised, having regard to the facts and policy?
     Or, in other words, would you have exercised your discretion in the same way had
     you looked at the case in the first instance?

Therefore, while an original decision may be correct as to policy, the reviewer may
vary or set aside the decision because they consider it is not the best possible or
preferable decision in the circumstances of the case.

A situation can also arise where the original decision may have been both correct and
preferable on the information before the decision maker at the time the decision was
made.

The reviewer may, however, set aside or vary the decision on the basis of additional
information.

DISCRETION

The reviewer may have more powers of discretion than the original decision maker
(the Senior Homeswest officer).



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                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Tier 1 Decision Review – The Making of a Decision (continued)


Any decision must be exercised reasonably. A decision maker given a discretion must,
therefore;

•   Bring an impartial mind to the issues for determination.
•   Take into account those matters which they are bound to consider.
•   Exclude from their consideration those matters which are irrelevant.

NATURAL JUSTICE (PROCEDURAL FAIRNESS)

The rules of natural justice (procedural fairness) will require, that following an adverse
decision at Tier 1;

1) All persons be given the right to be heard before decisions are taken which affect
   their rights, interests and legitimate expectations.
2) The person be entitled to be made aware of any matters which the decision maker
   uses in the decision making process.
3) The person be given the reasons for a particular decision being reached and the
   opportunity of responding to them.
4) The right to reasonable notice (to give the person time to prepare or answer the case).
5) The right for the person to have a case heard in a convenient place.
6) The right for the person to appear and have representation by an advocate.
7) Any hearing be fair and unbiased.



Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 582, stated that,
“It is a fundamental rule of the common law doctrine of natural justice expressed in
traditional terms that, generally speaking, when an order is to be made which will
deprive a person of some right or interest or legitimate expectation of a benefit, he is
entitled to know the case sought against him and to be given an opportunity of replying to
it”.




Sources:
The Law Handbook (WA) Fourth Edition: Published by Sussex Street Community Law Service Inc.
Legal Aid Western Australia: Community Worker Training Program: 15 May 1996.
Better Decisions: Review of Commonwealth Merits Review Tribunals: Administrative Review Council.

                                              29
                            HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




                 HOMESWEST DECISION REVIEW FORM

Customer Name                                                 Name No.
Date of Birth                                                 Account No.
Address


                                                              Telephone No.
Postal Address, if different from above


Original Decision




Decision made by                                              Date
Reviewed Decision




Reason




Reviewed by                                                   Date
If you disagree, you are encouraged to discuss your reasons with the Homeswest officers involved in
making the decision. Please contact:


Decision maker                                           Telephone No.
Review Officer                                           Telephone No.




                                                  30
COVERING LETTER
UNFAVOURABLE DECISION


NAME
ADDRESS


Dear

This letter is about … (application, T/L assessment etc)

The decision has been reviewed and found to be in line with Homeswest policy. Copies
of the Review Form and the relevant policy are enclosed for your information.

If you would like to discuss this decision, you should get in touch with one of the officers
named below:

Decision maker ……………….. Tel ………………….

Review officer ………………… Tel ………………….

You are encouraged to do this, so that the policy and reasons for the decision can be
explained and to ensure you have provided Homeswest with all the facts about your case.

If you consider the decision is wrong, you have the right to appeal.

A pamphlet about the Appeals Process is enclosed, together with an Appeal Form.

Should you have any difficulties in completing the form or require any further
information, you can contact Homeswest.

You can also obtain help to make an appeal from a welfare or community organisation.
A list of agencies, which provide an advocacy service, is attached.

Yours sincerely




OFFICER POSITION

date

cc advocate (if appropriate)


stand00A 9/96



                                            31
                    APPEALS                COMMITTEE DECISION

                                                      Appeal No.


Appellant Name

Address



Postal Address (if different from above)



Subject of appeal

Hearing date

Venue


Attendance of appellant                    Yes        No


Name of accompanying advocate

Organisation/Address



Summary of attending appellant statement




                                                 32
Committee decision (if insufficient space please attach additional page and sign).




Reason




Committee Members:                 Name

                                   Signature

                                   Name

                                   Signature

Date


                                                    33
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE THREE TIERS OF THE HOMESWEST APPEAL SYSTEM


Second Tier

x Appeal to the Regional Appeals Committee
Tenants and applicants not satisfied with the outcome of the First Tier review may
proceed to the Second Tier called the Regional Appeals Committee.

The Regional Appeals Committee comprises a senior Homeswest officer not involved in
the original decision making and a community representative.

People may appeal decisions concerning housing policy (for example, priority
applications, further assistance and tenant liability), bond assistance, emergency housing
applications and housing loans.

Excluded is any matter which is or has been the subject of Court action, or application to
the State Ombudsman, or Minister for Housing. Court action (lodging of Form 12) in this
instance is defined to mean the lodgment of necessary documents with the Small Disputes
Division of the Local Court (which deals with matters under the Residential Tenancies
Act).

Also excluded are decisions of general application, such as rent increases.

An appeal must be lodged within 12 months of the original decision although an
extension of time may be granted by the relevant Regional Manager.

An appellant has the right to attend the hearing of their appeal so they can present their
case in person and be accompanied by an advocate or friend if they wish. The hearing
can take place either at Homeswest or a neutral venue. An interpreter can be arranged for
persons of non-English speaking background.

Appeals will be heard in the Region where the appellant is currently living except for
appeals for priority housing assistance which are heard in the Region where the appellant
wishes to live.

THE PROCESS

Upon receipt of the completed Homeswest Appeals Mechanism form the Appeals Officer
will forward and Acknowledgment of Appeal letter.

Within seven days of sending that letter, the Appeals Officer will contact the appellant
with either the Arrangements for Hearing by Appeals Committee Letter (if the appeal is
to be heard) or the Ineligible Appeal Letter (if the Appeals officer believes the appellant
has no reasonable claim).


                                            34
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Second Tier (continued)

Members of the Appeal Committee are advised of the hearing by the Confirmation of
Hearings Schedule which provides details of the time, date, venue and names of other
members who will be sitting at the same time.

Prior to the hearing, the Committee will examine all documents relating to the case.

At the hearing, the Committee will take note of all information presented and the
processes used to arrive at the original decision. Ultimately, the Committee is looking to
see that the decision has been fairly determined, having regard to the facts and policy.

THE DECISION

When the decision has been made, and if unfavourable, the Appeals Officer will record
the reasons for its decision on the Appeals Committee Decision Form. All decisions
made by the Committee are binding upon Homeswest, however an appellant may proceed
to the Third Tier (Public Housing Review Panel) if still unhappy with the decision.
Tenant Liability appellants are advised they can proceed to the Small Disputes Division
of the Local Court.

Dependent on the decision made at the hearing, the Appeals Officer will forward either:
• Letter A: To Cover Appeals Committee Decision to Dismiss which informs the
   appellant of their right to proceed to Tier 3, or
• Letter B: To Cover Appeals Committee Dismissal Decision advising the appellant of
   the outcome, that it is necessary to proceed to the Local Court and providing
   information regarding lodging Court documents. A copy of the Committee findings
   will be attached.

If the appeal is dismissed and the appellant wishes to appeal to the Public Housing
Review Panel (Third Tier), he/she is asked to complete the Request for Review, attached
to Letter A.

People must be advised in writing of the Committee’s decision and the reasons for the
decision within 30 days of lodging the appeal.

REFER ALSO TO: Decision Making and Conduct of Hearing (Section 8)




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                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




PROCEDURAL GUIDELINES
TIER TWO APPEALS COMMITTEE HEARINGS

x Appeal to the Regional Appeals Committee

1.   The appeal application is to be acknowledged within one working day.
2.   The appeal is to be assessed and the letter regarding ineligibility or hearing to be
     forwarded within 7 days of receipt.
     A copy of the correspondence must be forwarded to any advocate assisting the
     appellant.
     (If an appeal is received before a formal Tier 1 Decision Review has been done, the
     appeal application is to be deferred for the review to take place. Should the review
     result in an unfavourable decision, the appeal is to proceed to a hearing. Should the
     result be favourable, the appellant is to be advised of the favourable Tier 1 Decision
     Review and the appeal withdrawn).
3.   The hearing arrangements letter is to be sent encouraging the appellant to talk about
     the appeal with the Appeals Committee and advising that the appellant can be
     accompanied by an advocate, witness, relative and/or friend. If the hearing is by
     telephone, the appellant is to be asked to confirm the number at which the Appeals
     Committee can make contact.
     A list of advocacy agencies is to be enclosed with the letter, if the appellant is not
     being assisted with the appeal.
     (Hearings are heard in the region where the appellant is living, with the exception of
     appeals for priority which are heard in the region where the appellant wishes to live).
4.   The hearing must be arranged to meet the time-line for the Appeals Committee
     decision within one month of the appeal application, subject to consideration for the
     subject of the appeal and at the convenience of the appellant/advocate regarding date,
     time, location and any requirement for an interpreter.
     Appeals concerning urgent matters eg. decline of bond or priority housing, are to be
     scheduled as soon as possible after appeal lodgment and if necessary, take
     precedence over less urgent appeals.
     (If the appellant is unable to keep hearing arrangements within the time-line, this is
     not counted as ‘late’ for the purpose of recording monthly statistical return).




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                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Procedural Guidelines – Tier Two Appeals Committee Hearing (continued)


5.   Every effort must be made to ensure that the Committee comprises a male and
     female member. When it is only possible to convene a committee of one gender, an
     appellant of the opposite sex is to be offered the opportunity of a rescheduled
     hearing. It is essential that a female member hears an appeal involving domestic
     violence.
     A telephone check is to be made with the sitting Community member that they have
     had no dealings with the appellant or the appellant family which might detract from
     the perception of a fair hearing.
     The Homeswest member is to occupy a position nominated by the Regional Manager
     to hear appeals against the level of the Tier 1 Review Officer.
     On receipt of the appeal documents, each Committee member is to ascertain whether
     they are able to hear the appeal without bias.
     A member is to disqualify themselves, if knowledge of the appellant or the appellant
     family is possessed which might be considered prejudicial to a fair hearing. In this
     event, the Appeals Officer must be advised immediately (within 24 hours of receipt
     of the appeals material), so that a substitute can be arranged.
     In the case of community representatives, perceived bias may include involvement of
     their employing agency with the appellant.
6.   Documents relevant to the appeal are to be copied and forwarded to Committee
     members at least five working days before the hearing.
7.   If a request is received to observe an Appeals Committee hearing from a Homeswest
     officer or member of an external agency, consent of the appellant and both
     Committee members is essential before permission is granted.
8.   Ample time must be allocated for the hearing to allow the Committee members to
     meet, read the file/s, hear from Homeswest*, the appellant/advocate and any
     witnesses about the case, discuss the appeal, make and record the decision.
     Time requirements will be assessed with a view to ensuring the hearing is not rushed,
     that the appellant is assured all their case has been considered and the Committee has
     sufficient time to deliberate the evidence.
     *(Presentation before the Committee by a Homeswest representative is at the
     discretion of the Regional Manager. If the option is not exercised, written
     submission detailing the background and reasons for the decision in relation to policy
     is to be placed on file).




                                            37
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Procedural Guidelines – Tier Two Appeals Committee Hearings (continued)


9.   Whether the hearing is to be held at a Homeswest office or a neutral place, the
     location of the room must ensure privacy and the environment should be as
     welcoming as possible. Care is to be taken that the appellant is aware of the hearing
     location and is expected at reception.
10. In the event an appellant fails to attend at the scheduled hearing time, attempts
    should be made to contact the appellant for the hearing to proceed by telephone.
11. The Appeals Committee Decision Form with covering letter to be forwarded to the
    appellant/advocate within one working day of receipt of the form from the
    Committee.
     Allowing time for the document to be received by the Appeals Officer, the decision
     should be provided to the appellant by the seventh working day from the hearing of
     the latest.
     If the hand writing on the Appeals Committee Decision Form is at all difficult to
     read, the text is to be embodied in the covering letter.
     Notification of unsuccessful/partially successful appeals to contain information about
     alternative avenues of appeal:
     •   Eligible Tier 3 appellants to be referred to the Public Housing Review Panel (Tier
         3) and provided with return document for requesting a review and an opportunity
         to explain their case. An explanation is to be included that a hearing is not
         automatic and for country appellants, would be by conference telephone. A
         warning must be given of one month time-line for request; and
     •   Ineligible Tier 3 appellants are to be referred to the Small Disputes Division of
         the Local Court and to the State Ombudsman. Tenancy Note: Settling Disputes
         in Court is to be enclosed with the letter.
12. Homeswest staff involved in making the Tier 1 unfavourable decision are to be
    advised of the Committee decision.
     (Similarly, Homeswest staff and the community member are to be advised of the
     Public Housing Review Panel determination of any appeal proceeding to the Third
     Tier).
13. Appeal applications are to be monitored for trends eg. increase in number of appeals
    in particular category following policy change or due to local conditions and
    recorded in the Rental Operations Quarterly Report.
14. Request for Tier 3 review are to be forwarded with appeal documents and file/s to the
    Appeals Coordinator for eligibility assessment, within one working day. If this time-
    line cannot be met, receipt is to be acknowledged with advice the request is being
    forwarded for the attention of the Public Housing Review Panel.




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                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Tier 2 Review
THE MAKING OF A DECISION

WHAT IS INVOLVED?

The Homeswest Appeals Mechanism (HAM) is an administrative appeals system that
reviews decisions on the merits of the case; that is, the facts and policy aspects of the
original decision are all reconsidered afresh and a new decision is made either; agreeing
with, party changing, or setting aside the original decision.

HAM is informed by the principles of natural justice or procedural fairness. This means
that the decision must be reviewed fairly, equitably and without prejudice. All
information relevant to the decision must be made available and be subject to comment
from either party before or at the hearing.

The reviewer, like the original decision maker, must make findings of fact, (that is
they must determine what the “correct” and appropriate facts are in an appeal),
and apply the relevant policy to those findings to make a decision.

In doing so the reviewer undertakes a defined process;

They determine the Homeswest policy to which the appeal relates.

They elicit information from Homeswest and the appellant.

They ensure that information will be in the following possible forms;

•   the appeal form and supporting documentation including advocate submissions,
    doctors letters, etc;
•   the appellant’s Homeswest file;
•   information provided orally by the appellant and any witnesses introduced by the
    appellant; and
•   information provided orally by the particular Homeswest officer.

Three issues are relevant at this stage;

1. the reviewer may well need to test the “creditability” of the information received.
   That is, which of the conflicting information is, on balance, to be taken as “correct”.
2. the reviewer will need to decide whether the information is sufficient to determine the
   facts of the particular case. Should further information be sought? Should the appeal
   be adjourned?
3. the overriding principle is that the reviewer should only use information in the
   making of a decision that has been made available to the appellant.
                                           39
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Tier 2 Review – The Making of a Decision (continued)

Finally, the reviewer applies the relevant facts to Homeswest policy to arrive at the most
preferable decision given the circumstances of the case.

Another way of describing this process is for the reviewer to ask the following six
questions for each case:

                1.    What are the facts of the case?
                2.    What policy was applied?
                3.    Was the policy relevant?
                4.    Was it correctly applied to the facts?
                5.    Was the customer’s situation given comprehensive consideration
                      by Homeswest?
                6.    Was Homeswest’s discretion fairly exercised, having regard to the
                      facts and policy? Or, in other words, would you have exercised
                      your discretion in the same way had you looked at the case in the
                      first instance?

Therefore, while an original decision may be correct as to policy, the reviewer may
vary or set aside the decision because they consider it is not the best possible or
preferable decision in the circumstances of the case.

A situation can also arise where the original decision may have been both correct and
preferable on the information before the decision maker at the time the decision was
made.

The reviewer may, however, set aside or vary the decision on the basis of additional
information.

DISCRETION

The reviewer may have more powers of discretion than the original decision maker
(the Senior Homeswest officer).

Any discretion must be exercised reasonably. A decision maker given a discretion must,
therefore;

•   Bring an impartial mind to the issues for determination.

•   Take into account those matters which they are bound to consider.

•   Exclude from their consideration those matters which are irrelevant.



                                            40
                       HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Tier 2 Review – The Making of a Decision (continued)


NATURAL JUSTICE (PROCEDURAL FAIRNESS)

The rules of natural justice (procedural fairness) require;

1) That all persons be given the right to be heard before decisions are taken which affect
   their rights, interests and legitimate expectations.
2) The person be entitled to be made aware of any matters which the decision maker
   uses in the decision making process.
3) The person be given the reasons for a particular decision being reached and the
   opportunity of responding to them.
4) The right to reasonable notice (to give the person time to prepare or answer the case).
5) The right for the person to have the case heard in a convenient place.
6) The right for the person to appear and have representation by an advocate.
7) That any hearing be fair and unbiased.

Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 582, stated that, “It is a
fundamental rule of the common law doctrine of natural justice expressed in traditional
terms that, generally speaking, when an order is to be made which will deprive a person
of some right or interest or legitimate expectation of a benefit, he is entitled to know the
case sought against him and to be given an opportunity of replying to it”.




Sources:
The Law Handbook (WA) Fourth Edition : Published by Sussex Street Community Law Service Inc.
Legal Aid Western Australia : Community Worker Training Program : 15 May 1996.
Better Decisions : review of Commonwealth Merits Review Tribunals : Administrative Review Council.
                                                 41
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




CONDUCT OF HEARING
TIER TWO REGIONAL APPEALS COMMITTEE



1. Committee members are to meet before the scheduled hearing time to decide who
   should Chair the hearing and who should take notes of proceedings.
2.   Prior to hearing from an appellant, members are to prepare, discuss and apportion
     questions designed to ensure all the facts about the appellant’s case are understood.
     Questions should be shared between the members so that the appellant is aware of the
     equal interest and participation of both in the appeal.
3.   If approval has been given for an observer to attend the hearing, the Committee is to
     ensure that, apart from being introduced to participants, the visitor takes no active role
     in the proceedings.
4.   Every effort is to be made to ensure that the hearing starts on time and that the
     appellant is not kept waiting. If Homestart is presenting a case in support of the
     decision and the Committee is running late, the appellant is to be heard first.
5.   Optional Homeswest presentation.
     The Homeswest officer is to be introduced to each Committee member. The Chair is
     to explain the process of this part of the appeal and the officer is to be invited to
     explain the Homeswest case providing the background and reasons for the decision.
     The Committee is to ask questions until satisfied it is in possession of the facts and
     understands the Homeswest case for making the decision. (At the conclusion of
     Homeswest’s evidence, the presenting officer is to leave the hearing).
     In the event there is not a Homeswest presenter, the Homeswest Committee member
     is to take care they do not act in this capacity but maintain the role of an objective
     reviewer.
6. The Committee are to identify themselves by name and as the Homeswest or the
   independent community representative.
7.   The chairperson is to provide an overview of the appeal process, including an
     assurance that the hearing is informal and that the appellant’s case can be told in their
     own words. An explanation will be given that one member will be taking notes for
     record purposes and information provided about notification of the decision and of
     further avenues of appeal.
8.   The appellant/advocate is to be able to present the appeal in full and at their own
     pace. If the appellant is being assisted by an interpreter, care is to be taken to address
     the appellant.




                                              42
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Conduct of Hearing (continued)




9. In the event an appellant fails to attend at the scheduled time, an attempt should be
   made to proceed by means of a hearing by telephone. The hearing may not take place
   with an advocate in the absence of the appellant without the permission of the
   Appeals Coordinator.
10. If the hearing is conducted by conference telephone, particular attention is to be paid
    to introductions, with an explanation of the process and putting the appellant at ease.
11. The Committee will ask questions, until it is satisfied it is in possession of and
    understands the appellant’s case. The questions should be framed in a manner which
    facilitates the acquisition of the required information, whilst ensuring the appellant
    remains comfortable with the hearing.
12. Should it become apparent in the course of the hearing that additional evidence is
    required about the appellant’s case eg medical evidence, police report number, the
    Committee and the appellant are to agree on the nature of the information and the
    time for it to be obtained.
    (If the appellant has not attended the hearing, the additional information is to be
    sought in writing with a time line provided for a response. The appellant to be
    provided with the name and telephone number of the contact Appeals Officer to
    discuss the required information/time line).
    When additional information is required from Homeswest, the Committee is to
    determine whether it can be assessed without an adjournment or whether a
    reconvened hearing is necessary. If the hearing is adjourned, the appellant is to be
    given a written explanation with the time line for the Committee decision.
13. At the conclusion of the appellant’s evidence, the Committee must ensure the
    appellant is made aware of the succeeding steps in the appeal process.
14. When it is in possession of all the facts, the Committee is to discuss all the evidence
    and compile its decision with reasons. The Appeals Committee Decision Form must
    be signed.
In making its decision, the Committee must determine whether:
•   the relevant policy has been applied correctly;
•   the First Tier Review gave comprehensive consideration to the appellant’s situation;
•   Homeswest’s discretion has been exercised fairly with regard to the facts and policy;
    and
•   the decision under review was the correct and preferable decision.




                                            43
                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Conduct of Hearing (continued)



In the event the two members cannot agree on a decision, the reasons for the
disagreement are to be recorded; and


i.   Appeals involving charges for tenant liability items
•    it the item/s under dispute amount to $50 or less, the sum is to be waived;
•    if the item or items under dispute amount to more than $50, another Committee is to
     be convened to consider the disputed item/s and the appellant is encouraged to attend
     the second hearing; and
•    in the event that the second Committee fails to reach a unanimous decision, the
     reasons for the disagreement are to be recorded and the disputed amount of the item’s
     waived.
ii. Other Appeal Categories
•    a new Committee is to be convened; and
•    should the second Committee fail to agree, the appeal to be considered upheld.




                                             44
Framework for the Homeswest Appeals Mechanism
HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



 Adverse decision is made.



ORGANISATIONAL CHART




TIER 1
x Internal review is automatically done by officer not
   involved in the original decision.

   Reviewing officer makes decision.


TIER 2
x Second Tier review is available if still dissatisfied.
TIER 3
  Third and final Tier is Appeals
x Appeal to the Regionalavailable. Committee.

   Appeal Homeswest officer; community representative)
   (Senior to Public Housing Review Panel.
   (panel of three community members appointed by the Minister)




                                 45
                          HOMESWEST APPEALS MECHANISM INFORMATION MANUAL

SOME THINGS TO REMEMBER TO DO

BEFORE, DURING & AFTER THE HEARING


BEFORE                              DURING                                  AFTER
x   know the facts                  x    help the appellant feel at ease    x   discuss/negotiate decision with
x   get any additional information x     listen actively                         other member, exploring all
    you need                         x   watch body language                     options
x   work out what questions you x        take proper notes               x      write decision with reasons
    might ask                        x   take ‘time out’ if needed       x      take follow up action as needed
x   make notes about relevant points x   ask     questions     clearly &
x   think about what the appellant’s     paraphrase to check your
    arguments may be                     understanding
x   work out approach/procedure x        don’t lose your temper, disagree
    with other member                    among      yourselves   or    be
                                         judgemental




                                                         46
The making of a decision will often involve discussion
and negotiation with the other Panel members. When
this happens it is important you follow –


THE P’S & C’S OF NEGOTIATION

                           Check the facts.
PREPARATION                Ask for more information if
                           you need it.

                           Check the policy.
POLICY

                           Predict or anticipate what the
PREDICT                    arguments may be.


                           Decide how to argue your
PRESENTATION               case/position.


                           Make sure things stay on
CONTROL                    track.


                           Work for a solution and be
CO-ORDINATE                prepared to listen and
                           compromise.



                          47
ACKNOWLEDGEMENT OF APPEAL


Appeal No.




NAME
ADDRESS




Dear

Your application to appeal against … (subject of appeal) … has been received.

I will write to you again, within seven days, about the next stage of the appeal process.


Yours sincerely,




APPEALS OFFICER
date



cc advocate (if appropriate)



stand00B 9/96




                                            48
ARRANGEMENTS FOR HEARING BY APPEALS COMMITTEE

Appeal No.



Dear

Arrangements have been made for the Appeals Committee to hear your appeal:

        Date:
        Time:
        Venue:

If you are unable to keep this appointment, please contact me on …….……. to discuss
alternative arrangements.

If you are unable to attend a sitting in person but wish to talk to the Committee,
arrangements can be made for a hearing by conference telephone.

The hearing is your opportunity to explain your appeal in your own words. If you fail to
keep the appointment, without providing an adequate reason, the Committee will proceed
to consider your appeal and make its decision based on documentary evidence.

A senior Homeswest officer, who was not involved in making the decision and an
independent community representative will sit on the Committee. They will consider the
documents about your appeal, evidence from Homeswest and talk to you about your case.

Conduct of the hearing is informal. The Committee members will introduce themselves
and explain procedures to you. They will listen to your story and probably have some
questions to ask you. You can be assisted by an advocate at the hearing, have a witness
to give evidence on your behalf and have a friend or relative with you to keep you
company.

Before the hearing, you should prepare any written evidence, so the Committee can
consider it on the day. If you would like to read or obtain copies of any documents from
your file about your appeal, please contact me as soon as possible so that this can be
arranged.

Yours sincerely,



APPEALS OFFICER

date
cc advocate (if appropriate)

stand00d 2/97

                                          49
INELIGIBLE APPEAL

Appeal No.



NAME
ADDRESS




Dear

Your application to appeal against …(subject of appeal)….. has been considered.

Unfortunately, the Appeals Committee cannot hear your appeal because …(if the reason
is investigation by the State Ombudsman delete last paragraph).

If you believe this is wrong, or you think there are special circumstances about your case
or you have new information since Homeswest made its decision, you can apply to the
Regional Manager, …(address)… You should write, explaining your reasons and
providing evidence.

You can also seek an investigation from: The State Ombudsman, PO Box Z5386, St
Georges Terrace, Perth WA 6831.


Yours sincerely,




APPEALS OFFICER

date

cc advocate (if appropriate)



stand00C 9/96




                                           50
CONFIRMATION OF HEARINGS SCHEDULE



NAME
ADDRESS




Dear

This is to confirm arrangements for your next attendance as a Regional Appeals
Committee member:

       Time:
       Date:
       Venue:

...(name)………….. will be sitting on the Committee with you.

Enclosed are relevant documents for the following scheduled appeal hearings:

Time                   Name                   Appeal Subject         Advocate



…(language)………interpreter.

Please peruse the material to ensure that you are able to hear each appeal without
perception of bias. If you recognise any potential conflict of interest, contact me within
24 hours of receipt of this letter to discuss the need for alternative arrangements.

Yours sincerely,




APPEALS OFFICER

date


stand00DD 3/97




                                           51
HOMESWEST

 APPEALS

MECHANISM


 SEPTEMBER   1997




    52
LETTER A: TO COVER APPEALS COMMITTEE DECISION TO DISMISS
Appeal No.

(NB If the hand writing on the Appeals Committee Decision form is difficult to read, it
should be typed in the body of this letter)


NAME
ADDRESS


Dear

I am writing to let you know that your appeal to the Appeals Committee has been
unsuccessful. A copy of the Committee findings is enclosed for your information.

(If necessary) As you can see the Committee found …………………..

Should you disagree and feel that the Committee decision is wrong, you can apply for a
review by the Public Housing Review Panel. You can ask for an opportunity to explain
your case in person, however, this request is not granted automatically by the Panel.

If you wish to proceed with your appeal, sign and date the application below and return it
to me, as soon as possible. You must return the review request within one month of the
date of this letter or it will be assumed you do not intend to seek a review.

Yours sincerely,



APPEALS OFFICER

date
cc advocate (if appropriate)



I wish my appeal to be reviewed by the Public Housing Review Panel.

I would like to explain my case to the Panel (if a country appeal, add by telephone). I
understand that the Panel may not agree with this request ( ) YES ( ) NO


        Signature ………………………………

        Date ……………………………………
        (add typed name/appeal no. for reference purposes)

stand00E 9/96

                                           53
LETTER B: TO COVER APPEALS COMMITTEE DISMISSAL DECISION re T/L,
Arrears, WC and HAL (Bond) debts and day to day maintenance covered by the RTA Section
42
Appeal No.

(NB If the hand writing on the Appeals Committee Decision form is difficult to read, it should be
typed in the body of the letter).



NAME
ADDRESS



Dear

I am writing to let you know that your appeal to the Appeals Committee has been partially
successful/unsuccessful. A copy of the Committee findings is enclosed for your information.

(If necessary) As you can see the Committee found ‘……………………….’

(Details of debt to be provided or advice when details will be forwarded with comment: It is
recommended that you contact this office to make arrangements to pay the amount owing, as soon
as possible).

If you wish to dispute Homeswest’s decision further, you can apply to the Small Disputes Division
of the Local Court. I am forwarding a guide to procedure in the Local Court to help you.

You can also seek an investigation of your case from: ‘The State Ombudsman’, PO Box Z5386, St
Georges Terrace, Perth WA 6831.

Yours sincerely,




APPEALS OFFICER


date

cc advocate (if appropriate)


stand00F 9/96




                                               54
                 LEGAL & POLICY FRAMEWORK IN WHICH THE APPEALS OPERATE



      STATE GOVERNMENT                                            FEDERAL GOVERNMENT




                                           COMMONWEALTH/STATE
                                            HOUSING AGREEMENT
        HOUSING ACT 1980
    AND OTHER LEGISLATION – eg
•
•
•
     Freedom of Information Act 1992
     Residential Tenancies Act 1997
     Equal Opportunity Act 1984                 !                      ADMINISTRATIVE
                                                                              &
                                                                        NATURAL JUSTICE
                                                                                        LAW



                                            STATE HOUSING
                                             COMMISSION
                                         Trading as Homeswest
                                                     !
                                        Homeswest Appeals Mechanism
                    SERVICES                                             THE
                       TO                                                COMMUNITY
                                       COMMUNITY REPRESENTATIVES


                                                55
THE THREE TIERS OF THE HOMESWEST APPEAL SYSTEM

Third Tier

♦Public Housing Review Panel

This is the final tier in the HAM process and comprises a panel of three community persons appointed
by the Minister for Housing. People who are not satisfied with the decision of the Second Tier have one
month after receiving that decision, to appeal to the Third Tier.

Generally, any dispute that is covered by the Residential Tenancies Act cannot, as a matter of Homeswest
policy, be taken to the Third Tier. In these instances people must take action in the Local Court (Small
Disputes Division).

The Third Tier will also not accept appeals which are or have been the subject of Court action or application
to the State Ombudsman, or Minister for Housing.

People do not have an automatic right to attend the hearing of their appeal at the Third Tier. Appearance by
the appellant is at the discretion of the Panel and is not always taken for granted.

The decision of the Panel is binding on Homeswest. The Panel cannot review appeals about:
•   tenant liability assessments.
•   bond or rental debts.
•   water consumption debts.
•   loan arrears.

THE PROCESS
Similar to the process undertaken at the Second Tier, the Panel will review all the documentation regarding
the case and ensure that the decision has been determined having regard to the facts and whether policy has
been fairly applied in the circumstances.

Upon receipt of the request for a review of the Regional Appeals Committee decision, a Public Housing
Review Panel Acknowledgment letter will be sent.

The Panel must provide in writing, and within 30 days of the appeal being lodged, its decision and the
reasons for the decision. This will be in the form of a Public Housing Review Panel Determination or
Unfavourable Decision letter. A copy will be forwarded to Homeswest.




                                                     56
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




PROCEDURAL GUIDELINES
TIER THREE PUBLIC HOUSING REVIEW PANEL SITTINGS

1. The Review application is to be date stamped on receipt, assessed for eligibility and acknowledged within
   one working day.

If the appellant is seeking to address the Panel, an acknowledgment letter will be sent to explain that the Panel
will consider the request but that a hearing is not automatically granted. If the appellant lives in the country, a
letter will be sent advising that any hearing will be by telephone conference.

2. A summary of the appeal file is to be compiled for the information of the Panel. If the appellant has
   sought the opportunity to address the Panel, the Panel will consider whether hearing from the appellant
   will assist in its determination of the facts.

3. A Panel sitting is to be arranged to comply with the one month allowed for the review time-line and with
   consideration for the urgency of the subject matter.

4. The Review Panel comprises three members of equal status. Two members may form the Panel, if a third
   member is unavailable. In an emergency situation, one member only may sit.

5. Panel sittings are to be held at a venue which is independent from Homeswest. The location is to ensure
   privacy and facilitate informality for an attending appellant.

6. Correspondence must sent to confirm that an interpreter will be provided at the hearing, if an attending
   appellant has requested this service.

7. In the event of a decision to adjourn the hearing either to hear from the appellant or obtain additional
   written evidence, a letter to this effect is to be forwarded to the appellant within a working day of the
   Panel’s decision. The correspondence is to contain the time line for providing additional information and
   reconvening the sitting (usually 14 days).

8. The Panel’s determination is to be incorporated into a letter and forwarded to the appellant within one
   working day of the sitting and the appeal documents are to be returned to Homeswest, at the same time.




                                                        57
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




Tier 3 Review
THE MAKING OF A DECISION

WHAT IS INVOLVED?

The Homeswest Appeals Mechanism (HAM) is an administrative appeals system that reviews decisions on
the merits of the case; that is, the facts and policy aspects of the original decision are all reconsidered afresh
and a new decision is made either; agreeing with, partly changing, or setting aside the original decision.

HAM is informed by the principles of natural justice or procedural fairness. This means that the decision
must be reviewed fairly, equitably and without prejudice. All information relevant to the decision must be
made available and be subject to comment from either party before or at the hearing.

The reviewer, like the original decision maker, must make findings of facts, (that is they must determine what
the “correct” and appropriate facts are in an appeal), and apply the relevant policy to those findings to make a
decision.

In doing so the reviewer undertakes a defined process;
They determine the Homeswest policy to which the appeal relates.
They elicit that information from Homeswest and the appellant.
They ensure that information will be in the following possible forms;
•   the appeal form and supporting documentation including advocate submissions, doctors letter, etc;
•   the appellant’s Homeswest file;
•   information provided orally by the appellant and any witnesses introduced by the appellant; and
•   information provided orally by the particular Homeswest officer.

Three issues are relevant at this stage;
1. the reviewer may well need to test the “credibility” of the information received. That is, which of the
   conflicting information is, on balance, to be taken as “correct”.
2. the reviewer will need to decide whether the information is sufficient to determine the facts of the
   particular case. Should further information be sought? Should the appeal be adjourned?
3. the overriding principle is that the reviewer should only use information in the making of a decision that
   has been made available to the appellant.




                                                       58
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Tier 3 Review – The Making of a Decision (continued)


Finally, the reviewer applies the relevant facts to Homeswest policy to arrive at the most preferable decision
given the circumstances of the case.

Another way of describing this process is for the reviewer to ask the following six questions for each case:

       1.      What are the facts of the case?
       2.      What policy was applied?
       3.      Was the policy relevant?
       4.      Was it correctly applied to the facts?
       5.      Was the customer’s situation given comprehensive consideration by Homeswest?
       6.      Was Homeswest’s discretion fairly exercised, having regard to the facts and policy? Or, in
               other words, would you have exercised your discretion in the same way had you looked at the
               case in the first instance?

Therefore, while an original decision may be correct as to policy, the reviewer may vary or set aside the
decision because they consider it is not the best possible or preferable decision in the circumstances of
the case.

A situation can also arise where the original decision may have been both correct and preferable on the
information before the decision maker at the time the decision was made.

The reviewer may, however, set aside or vary the decision on the basis of additional information.

DISCRETION

The reviewer may have more powers of discretion than the original decision maker (the Senior
Homeswest officer).

Any discretion must be exercised reasonably. A decision maker given a discretion must, therefore;
•   Bring an impartial mind to the issues for determination.
•   Take into account those matter which they are bound to consider.
•   Exclude from their consideration those matters which are irrelevant.




                                                        59
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



Tier 3 Review – The Making of a Decision (continued)


NATURAL JUSTICE (PROCEDURAL FAIRNESS)

The rules of natural justice (procedural fairness) require;
1) That all persons be given the right to be heard before decisions are taken which affect their rights, interests
   and legitimate expectations.
2) The person be entitled to be made aware of any matters which the decision maker uses in the decision
   making process.
3) The person be given the reasons for a particular decision being reached and the opportunity of responding
   to them.
4) The right to reasonable notice (to give the person time to prepare or answer the case).
5) The right for the person to have the case heard in a convenient place.
6) The right for the person to appear and have representation by an advocate.
7) That any hearing be fair and unbiased.


Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 582, stated that,
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that,
generally speaking, when an order is to be made which will deprive a person of some right or interest or
legitimate expectation of a benefit, he is entitled to know the case sought against him and to be given an
opportunity of replying to it”.




                                                       60
                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




CONDUCT OF HEARING
TIER THREE HOUSING REVIEW PANEL

1. The role of Chairperson is to be rotated among the members and to be decided at the commencement of
   each session.

2. The proceeding can be adjourned if the Panel finds it requires additional information from the appellant or
   Homeswest to finally determine the appeal.

3. When it is in possession of all the facts, the Panel is to discuss all the evidence and compile its decision
   with reasons. The Review Form must be signed.

4. After the appellant’s evidence has been considered and if the appeal is dismissed, the Panel will advise the
   appellant of further avenues of appeal.

5. A hearing is at the Panel’s discretion, however where such discretion is exercised:
   5.1 Prior to hearing from an appellant, members are to prepare, discuss and apportion questions designed
       to ensure all the facts about the appellant’s case are understood.

   5.2 The appellant and any advocate or other person are to be introduced to each member. The Chair is to
       explain the purpose of the hearing and procedures and to invite the appellant to explain their case.

   The appellant must be allowed to present their appeal in full and at their own pace. If the appellant is
   being assisted by an advocate, that the advocate is to be considered an integral part of the proceedings.

   5.3 The Panel will ask questions, until it satisfied it is in possession of and understands the appellant’s
       case. The questions should be framed in a manner which facilitates the acquisition of the required
       information, whilst ensuring the appellant remains comfortable with the hearing.

   If the appellant is being assisted by an interpreter, care must be taken to ensure that the conversation is
   directed at the appellant.

   Should the hearing be by conference telephone, particular attention must be paid to introductions,
   explanation of the process and putting the appellant at ease.




                                                      61
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



    Conduct of Hearings – Tier Three Housing Review Panel (continued)

    In making its decision, the Panel must determine whether:
    •   the relevant policy has been applied correctly;
    •   the Appeals Committee (Tier 2), gave comprehensive consideration to the appellant’s situation;
    •   Homeswest’s discretion has been exercised fairly with regard to the facts and policy; and
    •   the decision under review was the correct and preferable decision.

In the event of disagreement:
Among three sitting members –
•   the majority decision will prevail with the dissenting member able to record reasons for minority decision;
    and
Between two sitting members –
•   the sitting must be adjourned and reconvened with the third member.




                                                          62
PUBLIC HOUSING REVIEW PANEL ACKNOWLEDGMENT
Review No.




NAME
ADDRESS




Dear

This is to confirm the Public Housing Review Panel has received your request for a review of the
Homeswest decision .(subject)………………

The Panel will consider your appeal within one month of this letter and advise you of its
determination in writing.

/or

The Panel will consider the documentation about your appeal and if it agrees you should
explain your case, I will contact you to arrange/your attendance at the sitting/a hearing by
conference telephone. Otherwise, the Panel will advise you of its determination in writing,
within one month of this letter.

Yours sincerely




APPEALS COORDINATOR

date

cc advocate (if appropriate)




                                              63
PUBLIC HOUSING REVIEW PANEL DETERMINATION
Review No.




NAME
ADDRESS




Dear

On…., the Public Housing Review Panel sat to consider your appeal against the Homeswest
decision to (subject of appeal).

Having reviewed all the documents about your case, the Panel determined:

OR

Having reviewed all the documents, the Panel found it had all the facts and therefore, hearing from
you about your case would not alter its determination:

Appeals upheld/dismissed: (reasons) …………….

A copy of this letter is being sent to Homeswest.

If you are dissatisfied about the decision, you can apply for an investigation to ‘The State
Ombudsman’, PO Box Z5386, St Georges Terrace, Perth WA 6831.

Yours sincerely




APPEALS COORDINATOR

Date
cc advocate (if appropriate)




                                                    64
The making of a decision will often involve discussion and
negotiation with the other Panel members. When this happens it
is important you follow –

THE P’S & C’S OF NEGOTIATION


PREPARATION                Check the facts.
                           Ask for more information if
                           you need it.


POLICY                     Check the policy.


PREDICT                    Predict or anticipate what the
                           arguments may be.


PRESENTATION               Decide how to argue your
                           case/position.


CONTROL                    Make sure things stay on
                           Track.


CO-ORDINATE                Work for a solution and be
                           prepared to listen to
                           compromise.




                              65
                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




FREEDOM OF INFORMATION (FOI)

THE FREEDOM OF INFORMATION ACT (1992)

The Western Australian Freedom of Information Act (1992) gives a person the right to apply
for access to documents held by Ministers, State Government Departments, Local Authorities
and Statutory Authorities. These bodies are called agencies. Homeswest is such an ‘agency’.

This right is not affected by any reasons the person has for wishing to obtain access or Homeswest’s
belief as to what the person’s reasons are for wishing to obtain access.

The objects of the Legislation will be achieved by creating a general right of access to State and
Local Government documents and assisting the public to obtain access to documents at the lowest
reasonable cost.

When appealing against a Homeswest staff decision, the appellant can, under this Act, obtain access
to relevant documents if they believe it will assist to support their claim.

Application must be made in writing (by letter or application form) to Homeswest with sufficient
details to enable identification of the file. There is no application fee for personal information,
however for requests covering other than personal information there is an application fee of $30 and
charges for dealing with the application.

If Homeswest decides to amend the information, it can alter the record, strike out, delete or insert a
note in relation to the contents. Homeswest must inform the person of its decision and reasons,
together with the right to appeal if the person is not satisfied.

What information can be accessed?

There are two types of information which can be assessed:

•   Personal Information
This includes: school records, medical records, welfare records, superannuation records,
examination and training records, police records, etc.

•   Non-Personal Information
This includes: government policy documents, research materials, reports, minutes or meetings,
memos, impact statements, etc.




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THE STATE OMBUDSMAN

ROLE

The role of the Ombudsman is to act as a complaint investigating office which has no connections
with any government department or Ministry but rather reports directly to Parliament. The
Ombudsman is mandated to act in an impartial and independent manner.

Homeswest is a State Government agency and as such, complaints about Homeswest are within the
jurisdiction of the Ombudsman.

If a client of Homeswest (or other person affected) is dissatisfied with a decision or action of
Homeswest, then they are able to make a complaint to the Ombudsman.

Depending on what type of action or decision is being complained about, the Ombudsman may
investigate the matter or may refer the client back to Homeswest.

If the matter is something which gives rise to a right to appeal through the Homeswest appeals
process, the Ombudsman will generally request the client follow those procedures before
investigating the complaint. An example of this would be where a person has been taken off the
priority list after refusing to accept accommodation offered by Homeswest.

A Homeswest decision which has been or is being considered by the Ombudsman, cannot be
appealed to HAM.

PROCESS

With all complaints investigated by the Ombudsman, information is sought from the complainant
about the problem. Enquiries are also made with the government agency, in this case Homeswest.
Depending on the case, further information may be sought from doctors, builders, neighbours, etc.

Complaints are often resolved informally as a result of the Ombudsman’s action with Homeswest.

The Ombudsman has the power to make recommendations to Homeswest. In the event of non-
implementation of a recommendation, the Ombudsman can report the matter to the Premier and to
the Parliament.

Complaints to the Ombudsman must be in writing. The Ombudsman’s staff will assist
complainants to complete a complaint form if necessary. There is no charge for making a
complaint to the Ombudsman.




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                    HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




EQUAL OPPORTUNITY COMMISSION (EOC)

THE EQUAL OPPORTUNITY ACT (1984)

The Equal Opportunity Act makes it unlawful to discriminate against a person on the
grounds of their sex, marital status, age, pregnancy, race, religious or political conviction; or
to discriminate against a person because of his or her family responsibilities or family status.
The ground of complaint applies to the areas of employment and education and covers both
direct and indirect discrimination.

Direct Discrimination
Occurs when less favourable treatment by a person/s is applied to another person being in the
same or similar circumstances and being on any of the grounds and the areas covered by the
Act.

Indirect Discrimination
Occurs with an unreasonable rule or a practice which on the face of it appears neutral, but with
which a high proportion of persons of a particular race, sex or other group covered by the Act could
not comply.


The grounds under which discrimination can occur are clearly identified within the Act and cover
the areas of work, education, access to places and vehicles, accommodation, land, goods and
services, application forms and clubs.

There are some general exceptions which pertain to Court orders, religious bodies, housing
provision for particular categories (eg aged), employment by educational institutions established for
religious purposes, age restrictions in areas identified in the Act, voluntary bodies and charities.

ROLE OF THE EOC

The EOC has two major roles:
1. To provide a means of redress to individuals who allege unlawful discrimination.
2. To provide education to encourage recognition and an understanding of the principles of equal
   opportunity.




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The Equal Opportunity Commission (continued)

LODGING A COMPLAINT

The complaint must be made in writing and signed by the complainant. It must refer to one of the
grounds of discrimination as defined in the EOC Reference Guide – Definition of Discrimination
form.

It is the responsibility of the complainant to provide the information necessary to support the
allegations made.

The complaint must be lodged within 13 months of the last incident of discrimination. In some
circumstances, however, the Commissioner may rule that there is good reason to accept a complaint
that falls outside the 12 month time frame.

Process
The Commissioner will read all inquiries and complaints lodged and will then make a preliminary
assessment about the status of claim. If the Commissioner decides that the complaint or inquiry
falls within the jurisdiction of the Act, it will be investigated.

A Conciliation Officer will be asked to help the Commissioner investigate and attempt to conciliate
the complaint.

If the complainant does not respond within 21 days to requests for information from a Conciliation
Officer, the Commissioner may decide the complainant does not wish to pursue the complaint.

Once all information is gathered, the Commissioner will write to the respondent, naming the person
making the complaint, giving full details of the allegations and asking for a response to those
allegations.

Many complaints are resolved at this stage.

Following investigation, the Commissioner may decide that the allegations have no substance and
dismiss the complaint. When this occurs, the complainant may request the matter be referred to the
Equal Opportunity Tribunal for inquiry.




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EQUAL OPPORTUNITY TRIBUNAL

The Tribunal is an independent body. It is not part of the Equal Opportunity Commission.
Once the Equal Opportunity Commissioner has referred a complaint to the Tribunal, it is no longer
within the Commissioner’s jurisdiction.

The Tribunal is composed of:
•   the President who is a legal practitioner of not less than 7 years standing and practice;
•   two other members who are appointed for three years by the Governor; and
•   a Registrar.

The President determines questions of evidence and any other question of law or procedure.

Functions and Powers of the Tribunal
The Tribunal has the powers of a Royal Commission and is not bound by the rules of evidence. The
Tribunal:
•   will enquire into matters referred by the Minister or complaints referred by the Equal
    Opportunity Commissioner;
•   has the powers, authority and protection of the Royal Commission Act 91968) and can make
    interim orders to preserve the ‘status quo’ or the rights of parties to the complaint;
•   can decide on whether to dismiss the complaint or to substantiate the complaint. If the
    complaint is substantiated, the Tribunal can make orders for the respondent to pay damages and
    to cease the conduct, to redress the loss or damage, declare void any contract or agreement
    made, or decline to take any further action.

Tribunal hearings are public and may be attended by the press.

The Tribunal has the power to grant exemptions from the Act.

The decision of the Tribunal may be appealed to the Supreme Court on the question of law.

Legal costs may be incurred if lawyers are involved.




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                     HOMESWEST APPEALS MECHANISM INFORMATION MANUAL




THE ADMINISTRATION OF HAM


MEMBERS INFORMATION & TRAINING
INFORMATION
All members are provided with the:
•   Homeswest Appeals Mechanism Information Manual
•   Homeswest Rental Policy Manual
•   Homeswest Legal Recovery Procedures Manual
•   Homeswest Guide to Customer Rights & Responsibilities
and have access to the:
•   Homeswest Rental – Maintenance Manual

All members will receive information on new (or amendments to) policy, updated copies of
brochures, forms, letters and other relevant information as these changes to the appeals process
occur.

TRAINING
Preliminary training on the Homeswest Appeals Mechanism is provided by Shelter WA in
association with the Homeswest Appeals Coordinator and is compulsory for all HAM members.

The training program involves presentation of case studies, role playing and panel discussion on the
following matter:
•   roles and responsibilities of the Appeals Committee members;
•   access and equity issues;
•   appeals procedures;
•   dispute resolution;
•   about the appeals hearing; and
•   decision making and negotiating.

Ongoing training is encouraged to assist Homeswest staff and community members maintain a
consistent level of understanding of Homeswest policy, their role as a HAM member and customer
rights within the appeals mechanism.




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                      HOMESWEST APPEALS MECHANISM INFORMATION MANUAL



The Administration of HAM (continued)

APPOINTMENT OF MEMBERS
HAM members include senior Homeswest staff and community members.

The skills required of members include:
•   a sound knowledge of Homeswest policies and procedures;
•   knowledge of tenancy rights and needs;
•   good analytical skills with assessing competing evidence in conjunction with Homeswest policy
    and procedures;
•   demonstrated oral and written communication skills;
•   good listening skills;
•   an ability towards balanced decision making; and
•   ability to present the decision in a clear and concise fashion.

APPOINTMENTS:
♦ Tier 1
Members are senior Homeswest staff.

♦ Tier 2
Homeswest staff are appointed by Homeswest and include Regional Managers or assistant Regional
Managers.

Community representatives are chosen for their interests and abilities in the field of community
liaison. Appointments of community members is made by the Homeswest Regional Manger in
consultation with community organisations which deal with housing related matters.

♦ Tier 3
Appointments are made by the Minister for Housing. Panel members are selected for their skills,
abilities and experience in community work and, as far as possible, are representative of the
Homeswest Customer base.




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GUIDELINES FOR THE APPOINTMENT OF
COMMUNITY REPRESENTATIVES AS INDEPENDENT                                MEMBERS        OF    THE
REGIONAL APPEALS COMMITTEES
(Tier Two Members)


The participation of community representatives in the assessment of appeals is integral to the
philosophy of the Homeswest Appeals Mechanism. A pool of independent members will be
appointed and maintained on a regional basis to serve on Tier 2 Appeals Committees.
Members of the Tier 3 Public Housing Review Panel are appointed by the Minister for
Housing.

SELECTION CRITERIA
1. Qualifications, experience and/or interest in the fields of:
•   tenancy issues
•   social, community and/or welfare work
•   aboriginal and/or cultural affairs
•   medicine
•   law

2. High level of communication skills, including the ability to related to appellants of differing
   age, sex and ethnic background and to write clear and concise reports.

3. Ability to analyse information and to interpret policy.

4. Ability to chair small meetings and to work as a member of a multi-disciplinary team.

5. Decision making and assertiveness skills.

6. An understanding of the principles of review of administrative decisions and the implications of
   an appeal system.

APPOINTMENT
Applications for membership of Tier 2 Appeals Committees may be called by advertising in the
local media and/or seeking nominations from community agencies. Unsolicited expressions of
interest may be received.

Applications are to be encouraged from people from an Aboriginal or non-English speaking
background and from representatives of Homeswest tenancy groups.




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Guidelines for the Appointment (continued)


Candidates are to provide a resume of their qualifications, experience, skills, abilities and interests
in relation to their suitability for the position of committee members. Names of two referees are to
be provided and a written testimonial as evidence of experience in community work would be an
advantage.

Appointment and assessment against the selection criteria to be forwarded to the Appeals
Coordinator.


CONDITIONS OF APPOINTMENT
Members must be able to give a commitment to sit on hearings according to the requirements of
Homeswest Regional Offices.

Appointment is for twelve months with the option of reappointment for a similar term.
Remuneration is according to the approved rate for members of State Government Boards and
Committees. Members will be paid the regular sitting fee whilst attending training and, if required,
to attend outside region of their appointment, may be reimbursed travel expenses.


TRAINING
Successful applicants will be required to attend training in the course of their appointment:

Preparatory to first hearing each member will:
•   Be provided with a copy of the following –
    ⇒ HAM Information Manual
    ⇒ Rental Policy Manual and Maintenance Manuals
    ⇒Legal Recovery Procedures Manual
    ⇒Guide to Customer Rights and Responsibilities
•   receive a tour of a branch or regional office with an explanation of each function eg making an
    allocation; assessing a bond assistance application; processing a maintenance complaint;
•   receive a demonstration of a vacant property inspection and completion of Property Condition
    Report; and
•   observe a hearing of an appeal against vacated tenant liability debt ad one other appeal category
    eg priority or valid offer.




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Guidelines for the Appointment (continued)


During the term of the appointment each Tier 2 member will attend:
•   Biannual meetings of Tier 2 community members and Homeswest staff convened by the
    Regional Manager to discuss Tier 2 procedures and Homeswest rental policy;
•   Policy update training courses, as available on a regional basis;
•   Training in appeals policy and procedures, as available; and
•   Training in Aboriginal and/or Cultural Awareness, Equal Opportunity and Assertiveness as
    nominated by the Regional/Branch Manager, or as requested by the community member and
    approved by the Appeals Coordinator.


Tier 3 members will receive training excluding the tenant liability component. Members may also
request training and meetings with other independent members.




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HOMESWEST
APPEALS
MECHANISM




          76
HOMESWEST APPEALS MECHANISM
PREAMBLE
The right of appeal is integral to Homeswest Customer Service Charter. Homeswest Appeals Mechanism offers customers a quick, informal,
thorough, fair and inexpensive means of appealing a decision unfavourable to their case. The sequential three-tier system meets the requirement
of the Commonwealth/State Housing Agreement (CSHA) that applicants for and recipients of housing assistance have access to an independent
appeal mechanism.
Homeswest is empowered to devise policies and procedures to ensure the proper delivery of its functions, under the State Housing Act, 1980.
Consequently, each of the three tiers of the appeals mechanism is required to review decisions and make decisions within the framework of
existing policy.

         POLICY                                                                    GUIDELINES & PRACTICES
Timeline for appeal                                                         1.1   A decision made more than a year ago will be reviewed and may
1.    A Homeswest customer has the right to appeal an unfavourable                proceed through the appeals process, at the discretion of the
      decision related to public rental housing, bond assistance and home         Regional Manager.
      loans, within twelve months of the decision being made.
Ineligible decisions                                                  2.1         A review will not be made of a decision to evict after the Notice of
2.   A decision may not be appealed:                                              Termination is issued, or in the case of legal recovery of a loan, after
•     which has been or is being considered by the State Ombudsman or             the Default, Annulment or Determination Notice is issued;
      the Minister for Housing; or                                    2.2         A decision of general application can be appealed, as it applies to an
•     where legal action is being or has been taken; or                           individual customer e.g.. A customer may appeal the assessment of
•     which is of general application e.g.. decision to increase all              his/her rental increase.
      Homeswest rents; or
•     Disposition of Homeswest assets, including property.




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        POLICY                                                                     GUIDELINES & PRACTICES
Review factors                                                              3.1   These factors will be considered by reviewers at each tier of the
3. An unfavourable decision will be reassessed on the following                   appeal process;
basis:
       (I) What are the facts of the case?
       (ii) What policy was applied?
       (iii) Was the policy relevant?
       (iv) Was policy correctly applied to the facts?
       (v) Was the customer situation given comprehensive consideration?
       (vi) Was Homeswest discretion fairly exercised, having regard
       to the facts of the case and policy?
Unwritten decisions                                                         4.1   A counter or telephone customer will be given a full and clear
4.    A customer receiving an unfavourable decision in response to an             explanation of the reasons in relation to policy for any unfavourable
      informal enquiry will be advised of his/her appeal rights.                  decision and be advised that he/she may receive a written decision
                                                                                  and review by an independent officer;
                                                                            4.2   A customer wishing a review may request an opportunity to present
                                                                                  his/her case to the reviewer, otherwise the review will conducted
                                                                                  without representation by or on behalf of the customer;
                                                                            4.3   A customer seeking a written review will be advised of the outcome
                                                                                  within seven days of the request.
                                                                            4.4   Reinstatement of applications – see 7 to 7.2 Error! Reference
                                                                                  source not found..




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        POLICY                                                                   GUIDELINES & PRACTICES
Tier 1                                                                    5.1 An unfavourable decision will be reassessed by an officer appointed
5.      Before a written unfavourable decision is provided to a customer,      by the Regional/Branch Manager to review decisions made by
        the decision must be reviewed.                                         officers at the level of the original decision-maker.
                                                                               Wherever possible, the reviewer will be an officer at a higher level
                                                                               than the original decision maker;
                                                                          5.2. Following the automatic written TIER 1 DECISION REVIEW, the
                                                                               customer will be provided with a copy of the Decision Review Form
                                                                               detailing the reasons for the unfavourable decision, the names and
                                                                               contact telephone numbers of the officers involved in the review, a
                                                                               copy of the relevant policy and information about the appeal process
                                                                               i.e.. an appeal information brochure, an appeal application form and
                                                                               a list of local advocacy agencies.
                                                                          5.3 Reinstatement of applications – see Error! Reference source not
                                                                               found. 7 to 7.2.
Tier 2                                                                    6.1 Should a customer lodge a written appeal before an unfavourable
6.     A customer dissatisfied with the outcome of the TIER 1                  decision has been formally reviewed, the Tier 1 Decision Review
       DECISION REVIEW has the right to apply for a hearing by an              Form will be completed. If the unfavourable decision is confirmed,
       appeals committee, by making a written appeal against the               the appeal process will continue with arrangements for a hearing. In
       unfavourable decision.                                                  the event, the review overturns the unfavourable decision, the
                                                                               customer will be advised of the favourable decision and the appeal
                                                                               considered withdrawn (resolved);
                                                                          6.2 Executive decisions
                                                                               An unfavourable decision made by Homeswest Executive may be
                                                                               appealable. However, where a Tier 2 committee is considering
                                                                               upholding such an appeal and the manner is of a sensitive or
                                                                               contentious nature, the appeal should be adjourned and the
                                                                               Chairperson of the committee should bring the concerns to the
                                                                               Regional manager to present to the Executive Director, prior to
                                                                               making their decisions.




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POLICY                                                                 GUIDELINES & PRACTICES
                                                               Example: An appeal to be re-housed by an ex-tenant evicted by
                                                                     Homeswest with a history of antisocial behaviour, which has
                                                                     involved neighbourhood disruption and media attention.
                                                               6.3 Tier 2 Committee
                                                                     A TIER 2 APPEALS COMMITTEE will be maintained in each
                                                                     Homeswest region of the State. Usually to facilitate attendance, an
                                                                     appeal will be heard by the Appeals Committee, located nearest to
                                                                     the home of the appellant. Exceptions to this general rule are
                                                                     hearings in the metropolitan area and appeals against decline of
                                                                     priority and priority transfer, which will be heard by the Appeals
                                                                     Committee in the region where the customer wishes to live;
                                                               6.4 Where a Regional Appeals Committee is not located within easy
                                                                     travelling distance of the appellant, arrangements will be made for a
                                                                     hearing by conference telephone. An appellant may request a
                                                                     hearing by telephone or that the hearing be held at a neutral location;
                                                               6.5 Tier 2 hearing arrangements
                                                                     The appellant will be notified of arrangements for the hearing in
                                                                     writing and encouraged to attend to explain his/her case,
                                                                     accompanied by a friend, relative, witness and/or advocate;
                                                               6.6 An interpreter will be provided for an appellant requesting this
                                                                     service;
                                                               6.7 If the appellant fails to keep the hearing appointment without timely
                                                                     and adequate reason, the Committee may make its decision based on
                                                                     the documentation; a request for a rehearing is at the discretion of
                                                                     the Regional Manager;
                                                               6.8 The appellant will be advised of the Appeals Committee decision in
                                                                     writing, within one month of lodging the appeal application. If the
                                                                     Tier 2 decision is unfavourable, information will be forwarded with
                                                                     the Appeals Committee Decision Form about proceeding with the
                                                                     appeal.
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        POLICY                                                                   GUIDELINES & PRACTICES
                                                                          Referral to Local Court
                                                                                Customers with an appeal about debt or day to day maintenance
                                                                                covered by the Residential Tenancies Act 1987, Section 42, and are
                                                                                not eligible to proceed to Tier 3. And will be referred to the State
                                                                                Ombudsman and the Small Disputes Division of the Local Court;
                                                                                information to assist with taking legal action will be provided e.g..
                                                                                The Ministry of Fair Trading Tenancy Note: Settling Disputes in
                                                                                Court pamphlet.
Composition of Appeals Committee                                          7.1   Homeswest representative on the Appeals Committee will be an
7.   A TIER 2 APPEALS COMMITTEE will comprise a senior                          officer appointed by the Regional/Branch Manager to hear appeals
     Homeswest officer not involved in the original decision-making and         against decisions made by officers at the level of the Tier 1 reviewer
     an independent community representative.                                   and, wherever possible, will be a senior level to the reviewer;
                                                                          7.2   The independent community member will be one of a pool of
                                                                                community representatives appointed by the Regional/Branch
                                                                                Manager in consultation with local community agencies
                                                                                representative of Homeswest customer base. Members will be
                                                                                selected on the basis of demonstrated qualifications, experience,
                                                                                knowledge, skills and abilities and/or interest in the fields of
                                                                                community welfare, public housing and/or cultural and Aboriginal
                                                                                affairs;
                                                                          7.3   An Appeals Committee member must ensure he/she is able to hear
                                                                                an appeal without bias and disqualify him/herself from considering
                                                                                an appeal, if he/she has knowledge of the appellant or appellant
                                                                                family which might be considered prejudicial to a fair hearing;
                                                                          7.4   An Appeals Committee may adjourn its sitting to obtain additional
                                                                                information.




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        POLICY                                                                   GUIDELINES & PRACTICES
Authority of Tier 2 Committee
8.   The two members of the Appeals Committee will have equal powers 8.1          Every effort will be made to ensure that the Committee comprises
     and their favourable decision will be binding upon Homeswest.                a male and female member. When this is not possible, an appellant
                                                                                  of the opposite gender to the members is to be offered the
                                                                                  opportunity of a rescheduled hearing. It is essential that a female
                                                                                  member hears an appeal involving domestic violence;
                                                                           8.2    Failure to agree a decision
                                                                                   Should the two Committee members fail to agree a decision, the
                                                                                   reasons for the disagreement are to be recorded; and:
                                                                                   (i) Appeals involving charges for tenant liability items if the item
                                                                                   or items under dispute amount to $50 or less, the sum will be
                                                                                   waived;
                                                                           •     If the item or items under dispute amount to more than $50, another
                                                                                   Committee will be convened to consider the disputed item/s and
                                                                                   the appellant encouraged to attend the second hearing;
                                                                           •     In the event the second Committee fails to reach a unanimous
                                                                                   decision, the reasons for the disagreement are to be recorded and
                                                                                   the disputed amount of the item/s waived.
                                                                                   (ii) Other Appeal Categories
                                                                           •     a new Committee will be convened;
                                                                           •     Should the second Committee fail to agree, the appeal will
                                                                                   considered upheld in favour of the appellant.




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            POLICY                                                                   GUIDELINES & PRACTICES
9.       An appellant or advocate may challenge the right of a panel member 9.1     Where the appellant wished to maintain privacy and the panel
         to hear an appeal, if they have a perception regarding the member’s        member is known to them personally.
         ability to remain impartial. In such circumstances the Panel member 9.2    Where the panel member represents an organisation that has contact
         will be excluded from hearing the appeal                                   with the appellant, regarding the substance of their appeal.
                                                                             9.3    Where the appellant believes that the member may be antagonistic
                                                                                    towards them or their situation.
                                                                             9.4     Where a challenge reduces the number of panel members below the
                                                                                    minimum required, the appeal will be adjourned to the next sitting
                                                                                    and a suitable replacement found.
People Receiving Payment from Homeswest                                      10.1   Example:
10. Tier 2 members will have no other direct involvement Homeswest,                 Member of Homeswest Board of Commissioners.
    which results in remuneration of services, to or on behalf of,                  Members of agencies, where the agency and not the individual
    Homeswest.                                                                      receive payment are not excluded.
                                                                                    Example:
                                                                                    Shelter WA, SHAP.
Tier 3                                                                    11.1      An appeal to the PUBLIC HOUSING REVIEW PANEL must be in
11.      A customer dissatisfied with the outcome from the Tier 2 Appeals           writing;
         Committee may appeal to the TIER 3 PUBLIC HOUSING 11.2                     The Panel will only review appeals which have been considered by a
         REVIEW PANEL, within one month of receiving the unfavourable               Tier 2 Appeals Committee;
         decision.                                                        11.3      An appeal decided more than one month ago by an Appeals
                                                                                    Committee may be reviewed, at the discretion of the Panel;
                                                                             11.4   An appellant may request an opportunity to explain his/her case but
                                                                                    a hearing is at the discretion of the Panel.




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         POLICY                                                                   GUIDELINES & PRACTICES
                                                                            11.5 Executive Decision:
                                                                                 Where the Tier 3 panel considers that upholding an appeal, which
                                                                                 has been subject to Executive decision, the panel should adjourn for
                                                                                 the Chairperson to present the case to the Executive Director, prior
                                                                                 to making a decision.
Ineligible Tier 3 Appeals                                                   12.1 Appellants with an ineligible appeal will be referred to an alternative
12. Decisions regarding:                                                         avenue of appeal e.g.. the State Ombudsman, the Small Disputes
•    Debt                                                                        Division of the Local Court.
•    Day to Day Maintenance, covered by Section 42 of the Residential
     Tenancies Act
     are ineligible for a review at Tier 3.
Composition of Tier 3 Panel                                                 13.1 A pool of community representatives will be appointed by the State
13. The Tier 3 Public Housing Review Panel will comprise three                   Minister for Housing and their selection will be based on
    independent community representatives with equal decision making             demonstrated qualifications, experience, knowledge, skills and
    powers.                                                                      abilities and/or interest in the fields of community welfare, public
                                                                                 housing and/or aboriginal and cultural affairs.
                                                                            13.2 The Panel will make its own procedures;
                                                                            13.3 At the discretion of the Panel, one member may review an appeal
                                                                                 and make a determination on behalf of the Panel.
                                                                            13.4 In the event three sitting members fail to reach a unanimous
                                                                                 determination, the majority decision will prevail. The dissenting
                                                                                 member may record the reasons for his/her decision.




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        POLICY                                                                     GUIDELINES & PRACTICES
Authority of the Panel                                                     14.1   The Panel will consider the documentation about an appeal and may
14.    The determination of the Panel is binding on Homeswest.                    adjourn for additional written information or to hear from the
                                                                                  appellant and/or Homeswest.
                                                                           14.2   The determination of the Panel will be provided to the appellant in
                                                                                  writing, within one month of the review request. An appellant
                                                                                  receiving an unfavourable determination will be referred to the State
                                                                                  Ombudsman, as a means of pursuing an investigation of the
                                                                                  decision.
                                                                           14.3   The Panel will consider appeals and make determinations within the
                                                                                  framework of existing policy. However, the Panel may make
                                                                                  recommendations about policy to Homeswest Executive Director
                                                                                  and/or the Minister for Housing e.g. the Panel may report on matters
                                                                                  where application of policy causes an unintended result, which
                                                                                  disadvantages a customer.
                                                                                  Tier 2 Appeals Committee community representatives may make
                                                                                  recommendations regarding policy to the Tier 3 Public Housing
                                                                                  Review Panel and/or to Homeswest.
Record Keeping                                                             15.1    Documentation about individual appeals will be maintained on the
15.   A permanent record of appeals will be kept.                                 customer’s personal file or work file.
                                                                           15.2   Monthly statistics will be maintained in each region by an Appeals
                                                                                  Officer appointed by the Regional/Branch Manager, and forwarded
                                                                                  by the fifth working day after the end of the month to the Appeals
                                                                                  Co-ordinator for collation.
                                                                           15.3   Appeal applications and outcomes will be monitored on a regional
                                                                                  basis and any trends e.g.. Impact of policy change or variation in
                                                                                  local conditions recorded on a quarterly basis in the Rental
                                                                                  Operations Quarterly Report.




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