Specialist disability accommodation

29 Jan

Written By For Good Digital

Between 1 July 2018 and 1 January 2019, many dwellings that were previously covered by Part V of the Disability Act 2006 (Vic) transitioned to become SDA dwellings (RT Act sch 2).
All dwellings previously covered by Part V automatically became subject to the RT Act on 1 January 2020. SDA residents who were not offered an SDA agreement and only provided a residential rental agreement during this transitional period should seek legal advice.
Residents seeking specialist disability accommodation specific funding via the NDIS or as part of the Commonwealth Continuity of Support Program will need to meet certain criteria. Eligibility for NDIS participants is regulated by Part 3 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth).
To be eligible for payments as an SDA resident, participants must show that, despite assistance technologies, equipment and home modifications, they require SDA. Participants must have either an extreme functional impairment (EFI) (r 12) or very high support needs (VHSN) (r 13) that require the participant to live in SDA (pt 4). Both EFI and VHSN have legal tests that are the subject of determination under the NDIS.
However, it is important to now recognise the difference between receiving SDA funding from the NDIS under the rules and identifying that an NDIS participant may still be eligible for a Part 12A agreement purely because you receive NDIS funding for a supported independent living. Participants should discuss this with the NDIS Local Area Coordinator.
Since 1 July 2024, the Disability and Social Services Regulation Amendment Act 2023 (Vic) has opened up SDA residency agreements to a significantly wider cohort of people by changing the definition of ‘SDA dwelling’ (see RT Act s 498BA). In addition to residents who are specifically funded through the NDIS for SDA accommodation and SDA enrolled dwellings, an SDA dwelling can also include premises where long term accommodation and daily independent living support is provided to one or more residents with a disability, and who are funded by ‘specified entity or program’. Currently, this includes programs that receive funds from DFFH, the Transport Accident Commission, Workcover, NDIS or Disability Support for Older Australians (DSOAV).
Being an SDA dwelling means the operator may offer an SDA agreement (RT Act pt 12A) or an ordinary residential rental agreement (RT Act pt 2). Generally, Part 12A will provide significantly better protections in comparison to Part 2. Unfortunately, there appears no clear obligation for providers to be compelled to provide at Part 12A where requested. Renters being refused a Part 12A agreement when requested or as part of a transition or transfer, should seek advice.
It is also important to note that an SDA resident cannot be compel to retain the SDA provider or their related services as part of their accommodation contracts. They should be discrete and independent contracts for services.
SDA agreements must be in the prescribed form (RT Act s 498J) and there are extensive requirements that the agreements (and any notices served) must be explained in a language and mode of communication and terms most likely to be understood by the SDA resident (s 498E). At least seven days before entering into an agreement, a SDA provider must give the resident a prescribed information statement (s 498D). SDA residents or their guardians or administrators should seek legal advice about which agreement works best for them.
SDA applications to VCAT are usually free. VCAT provides specific forms and guides to assist SDA residents (see www.vcat.vic.gov.au/documents/forms/guide-residency-applications-disability-service-provider-or-resident). For more information about SDA generally, see www.ndis.gov.au.
Rental providers’ duties
The duties for rental providers of SDA under Part 12A of the RT Act are more extensive and onerous than the duties of rental providers of non-SDA premises. It is also important to check the nature of the agreement to determine the applicable rights (RT Act s 498C). The duties of rental providers of SDA include (s 498M):
- respect and privacy: SDA rental providers must take reasonable measures to ensure that SDA residents are treated with dignity and respect and with due regard to their entitlement to privacy (s 498M(a));
- good repair: SDA rental providers must ensure that the SDA dwelling and any fixtures and fittings are maintained in good repair (s 498M(b));
- privacy: SDA rental providers must not unreasonably interfere with an SDA resident’s right to privacy (s 498M(c));
- fixtures: SDA residents also have a right to install any fixtures to assist their daily living and proper use and enjoyment of the premises (s 498M(c));
- security: SDA rental providers must take reasonable measures to ensure an SDA dwelling is secure (s 498M(d));
- convenience: SDA rental providers must minimise any inconvenience or disruption to the SDA resident when undertaking repairs or renovations (s 498M(e)); and
- efficiency: SDA rental providers must take reasonable steps to ensure that any repairs or renovations are completed by a suitably qualified person and in a timely manner (s 498M(f)).
Residents’ duties
The duties of residents of SDA are set out in section 498N of the RT Act. A SDA resident must:
- maintain the SDA dwelling in a manner that does not create a fire, health or safety hazard;
- report any damage and give details;
- contribute to the cost of repairing damage if the resident caused the damage;
- pay the rent on the due date and in the manner specified in the SDA residency agreement; and
- permit entry to a person who has a valid right of entry (s 498Y).
A SDA resident must not use the premises for an illegal purpose, endanger the safety of other residents or staff, cause serious disruption, damage or destroy part of the dwelling, install any fixtures without first obtaining the written consent of the SDA provider, or keep a pet without the SDA provider’s consent.
Compliance orders
Breach of Duty Notices under the SDA framework are required to be complied with within 14 days (RT Act ss 498ZO, 498ZP). Unlike for Part 2 rental agreements, a SDA Breach of Duty Notice is time-limited. This means that if a rental provider wants to make an application for a compliance order, the application must be made within 90 days of the last day that compliance was required in the Breach of Duty Notice (s 498ZQ). SDA residents who receive a compliance order should seek legal advice.
Repairs
The repair process for specialist disability accommodation is the mostly the same as the repair process for standard tenancies (RT Act ss 498O–498S), except the rent special account does not apply to specialist disability accommodation.
Rent increases
Rent increases under SDA agreements are the same as under normal rental agreements. However, rent increases cannot be more frequent than once every six months (RT Act s 498ZB). The factors a CAV inspector must consider are set out in section 498ZI(2) of the RT Act. Applications to challenge a notice of rent increase may be made (see s 498ZH).
Entry to specialist disability accommodation
Entry to SDA is regulated by sections 498T–498Z of the RT Act. The following notice periods apply to entering a SDA dwelling:
- at least 24 hours’ notice for maintenance or repair work (ss 498U(b)(ii), 498V(1)(f));
- at least 24 hours’ notice to allow a duty under the RT Act or any other Act to be carried out (ss 498U(b)(ii), 498V(1)(c));
- at least 48 hours’ notice to show a prospective resident or a prospective buyer the premises (ss 498U(b)(i), 498V(1)(a)–(1)(b)); and
- at least seven days’ notice for a valuation or a general inspection (and not more frequently than once every six months and not within the first three months of the tenancy) (ss 498U(b)(iii), 498V(1)(d)–(1)(e)).
A SDA provider can enter the SDA without giving notice if all the residents have given consent to the entry not more than seven days prior to entry (ss 498U(a)(i), 498V(2)(a)).
SDA can be entered without consent if:
- there is an emergency;
- the SDA provider believes, on reasonable grounds, that entry is necessary for the health and safety of the SDA resident(s);
- the SDA resident(s) abandoned the premises; or
- entry is necessary to undertake urgent repairs (s 498V(2)).
SDA residents can be given a temporary relocation notice (TRN) (RT Act s 498ZV). Specifically, TRNs can be given to residents who are living in rented premises under Part 2 or Part 12A of the RT Act and who are funded to live in a SDA dwelling.
A TRN is not a Notice to Vacate (see AVW v Nadrasca Ltd (Residential Tenancies) [2017] VCAT 1462 (13 September 2017)). Note that SDA residents cannot get a TRN for rent arrears.
Several bodies must be notified of a TRN: the CEO of the National Disability Insurance Agency (NDIA), the Public Advocate and CAV (RT Act s 498ZV(4)).
A TRN is effective immediately and cannot specify a relocation period of more than 90 days (RT Act s 498ZV(2)). During the relocation period, the SDA resident is excluded from the SDA dwelling. It is the SDA provider’s responsibility to provide the resident with suitable alternative accommodation (s 498ZV(7)).
At the end of the relocation period, the resident is entitled to return to the dwelling (RT Act s 498ZV(10)). The SDA provider has an obligation to resolve the matter that caused the need for the resident to be relocated as soon as reasonably possible (s 498ZV(12)).
While it appears that a TRN cannot be meaningfully enforced, the SDA provider can issue a Notice to Vacate 24 hours after issuing a TRN (s 498ZX(3)). SDA residents who receive a TRN should immediately seek legal advice and should consider challenging the notice under section 498ZZC of the RT Act.
Grounds for temporary relocation notices
The grounds for temporary relocation include serious disruption, danger, the SDA can no longer provide appropriate support, the relocation is for the resident’s safety or wellbeing, the resident has caused serious damage to the dwelling, the resident has used the premises illegally, SDA is no longer being provided at the premises, the dwelling is no longer suitable for SDA, or so that repairs, renovation or reconstruction to the premises can be made (RT Act s 498ZV(1)). Many of the grounds for temporary relocation mirror the grounds for issuing a Notice to Vacate in the RT Act (s 18 at [41]).
For SDA, the list of the types of Notices to Vacate and the procedures to follow to seek possession are set out in section 498ZX of the RT Act. Residents may apply to VCAT to review a Notice to Vacate (s 498ZZC). In relation to the following Notices to Vacate (ss 498ZX(b)– (f)), the SDA provider must take reasonable steps to notify the relevant supported independent living provider as soon as possible (s 498ZX(9)):
- Notice to Vacate for danger;
- Notice to Vacate for serious disruption;
- Notice to Vacate due to the resident being a danger to themselves and can no longer be appropriately supported;
- Notice to Vacate because the resident can no longer be appropriately supported; and
- Notice to Vacate as the resident has caused serious damage to the SDA dwelling.
A temporary relocation notice must be served at least 24 hours before a Notice to Vacate is served (s 498ZX(3)). A Notice to Vacate cannot be given unless the conduct constituting a breach is likely to recur (s 498ZX(4)). All Notices to Vacate must specify a termination date that is at least 90 days from the date the notice is given (s 498ZX(6)).
Under section 498ZX(1)(a) of the RT Act, a Notice to Vacate can be issued for rent arrears; the rent must be at least 14 days overdue. Repayment plans are regulated in a similar manner to non-SDA tenancies (s 498ZZI).
A SDA provider must notify the CEO of NDIA and the Public Advocate of a Notice to Vacate at least 24 hours before the notice is given to a SDA resident.
SDA residents or representatives who have been given a Notice to Vacate or a TRN should seek legal advice immediately.