Appeals Policy

1. Background

An appeal is a request for a review of a decision by the Department of Communities and Justice (DCJ) or a community housing provider participating in Housing Pathways. The intent of this policy is to explain:

• how a client can appeal a decision
• how client appeals are managed.

2. Scope

This policy applies to decisions made by:

• DCJ
• community housing providers participating in Housing Pathways
• the Housing Appeals Committee (HAC).

3. Policy statement

DCJ is committed to providing a transparent, equitable and consistent approach for clients to appeal a decision. If a DCJ tenant disagrees with a decision made by DCJ; or an applicant disagrees with a decision made by DCJ or a community housing provider participating in Housing Pathways, they may appeal that decision.

Appeals

An applicant for social housing assistance or a tenant of DCJ can appeal a decision if they believe that:

• inadequate consideration was given to their individual circumstances, or
• the decision was made contrary to policy, or
• the decision involved a poor interpretation of policy, or
• the procedure used to reach the decision was not fair and correct.

The objective of the appeals process is to ensure that:

• there is a fair mechanism for decisions to be reviewed, if those decisions cannot be considered by other bodies, such as the NSW Civil and Administrative Tribunal (NCAT), and
• the correct decision has been made in each individual case under appeal.

The appeal process starts when a client believes that a decision received is not correct and they have not been able to resolve the issue through a discussion with the office that made the decision. The aim of the appeal process is to confirm whether the correct decision has been made. Clients will be advised of their appeal rights by the social housing provider when communicating its decisions.

For more information on which decisions can be appealed go to Decisions that can be appealed.

There are two levels of appeal:

• First tier – this is an internal review by the social housing provider that made the decision, and
• Second tier – this is an independent review by the HAC.

A client can request an appeal about separate decisions that a social housing provider has made regarding their application for housing assistance, or about a DCJ tenancy matter. A client cannot request more than one first tier appeal for each decision made. Clients will be advised of the outcome of their first tier appeal and advised of their right to a second tier appeal.

If a client believes the decision made in the first tier appeal is not correct, they can request a second tier appeal by the HAC to review the decision.

The HAC is an independent agency that can review decisions made by DCJ and community housing providers. The HAC is informal and there is no charge to clients for this service. Find more information on the HAC website.

First tier appeal – internal review by a social housing provider

This applies to decisions made on applications for housing assistance and DCJ tenancy matters. Decisions made on community housing providers’ tenancy matters will be managed in accordance with that provider's appeals policies and processes.

The general approach to a first tier appeal is:

• A client requests a first tier appeal by completing and submitting the Review of Decisions (First Tier Appeal) Application form either online or download and print a paper version DH0173 PDF, 343.9 KB from the DCJ website.
• The timeframe to lodge an appeal application varies depending on the type of decision being appealed. For more information go to Timeframes for clients to lodge an appeal.
• A review of the decision is conducted by an officer who was not involved in making the original decision.
• The recommendations of that officer are then considered by a more senior officer who will make the first tier appeal decision.
• The client will be offered a phone or face to face interview before the review is completed. This provides the client with an opportunity to explain the reasons they think the decision should be changed, to understand the decision making process and to provide any further information that may be relevant.
• Generally, first tier appeals are completed within 21 calendar days from the date a client’s application for review is received. For more information go to Timeframe for consideration of appeals.

The officer will also consider evidence provided such as:

• Was the original decision consistent with the DCJ policy?
• Was the policy narrowly or harshly interpreted?
• Were the client’s circumstances and all relevant information fairly and properly considered?
• Was there any bias or prejudice involved on the part of the original decision maker?
• Did any irrelevant information affect the decision?
• Whether the original decision was made within the applicable legal framework.
• Whether any new, relevant information is available.

In reviewing a decision, the following is relied upon:

• Supporting information provided by the client or their support services and advocates at the time of the original decision, i.e. medical reports.
• Any relevant additional information supplied after the original decision was made, for example, relevant additional expenses and information provided during the review process.
• Information obtained from discussions or an interview with the client or their support workers and advocates.
• Information held by DCJ in its application or tenancy management records.
• Any other relevant information.

The client will be informed of the appeal decision in writing. The outcome of the appeal will be any of the following:

• the original decision is reversed, and a new decision is substituted in its place, or
• the original decision is maintained, meaning there is no change to the original decision, or
• the original decision is changed in part, or
• the appeal is withdrawn by the client, or
• an alternative solution is found, and the appeal is withdrawn or no longer required.

If a client’s first tier appeal is unsuccessful and the original decision is maintained, the client will be advised of their right to a second tier appeal by the HAC.

Second tier appeals – independent review by the HAC

If a client believes the decision made at the first tier appeal is not correct, they can ask the HAC to review the decision.

The HAC will not review a decision until after the first tier internal review of the original decision has been completed.

There are situations where DCJ or a Social Housing Management Transfer (SHMT) community housing provider participating in Housing Pathways will refer a client’s file directly to the HAC for a second tier independent review. This is known as an accelerated appeal. The client’s consent must be given prior to the transfer of the file from the social housing provider to the HAC. For more information see accelerated appeals.

Outside of accelerated appeals, clients wishing to appeal to the HAC will need to complete and submit either a second tier appeal online or the HAC Appeal Application PDF, 1816.74 KB form.

DCJ or community housing providers will not be present at the HAC appeal hearing.

After the hearing, the HAC will make a recommendation that:

• the original decision be maintained, or
• the original decision be changed in full, or
• the original decision be changed in part.

The HAC will also advise the client of their recommendation.

The final decision remains with DCJ or the community housing provider, except for appeals to issue a first or second strike notice for antisocial behaviour. In those cases the HAC recommendation is binding and DCJ must adhere to the HAC’s recommendation.

The HAC acts as the “review panel” referred to in Section 154C of the Residential Tenancies Act 2010, and will consider and make determinations on DCJ tenant appeals against antisocial behaviour strikes.

In cases other than strike notice appeals, the recommendations made by the HAC will be carefully considered and whilst not binding, in most cases DCJ or the community housing provider will accept the HAC recommendations.

If the HAC recommends that DCJ or the community housing provider change a decision, in full or in part, the recommendation will be considered, and a response will be provided to the HAC within six weeks.

In cases relating to reviews under the Procedures Approved by the Minister for Reviews under Section 149 of the Residential Tenancies Act 2010, if DCJ decides, after careful consideration, not to accept the HAC's recommendation, the matter will be referred to a senior manager of DCJ for the final decision.

DCJ or the community housing provider will advise the client in writing of the outcome of their second tier appeal.

Housing Pathways – appeals

In relation to housing assistance delivered through Housing Pathways, DCJ and community housing providers participating in Housing Pathways are responsible for managing appeals related to decisions made by officers of their individual organisations. This includes first tier, second tier and accelerated appeals.

Timeframes relating to appeals managed by community housing providers participating in Housing Pathways are detailed in their individual policies and guidelines.

For further information about the appeals in community housing, go to Community Housing Complaints, Issues and Appeals Management Framework.

Social housing and accelerated appeals

Social housing providers generally apply the same approach to first tier appeals regardless of the decision that is under review. The exceptions to this are the following decisions which undergo an accelerated appeal process:

• decisions relating to:
  • a first offer of alternative housing made to tenants being relocated for portfolio management purposes
  • sections 145 and 149 of the Residential Tenancies Act 2010
  • change of circumstances after a lease review
  • DCJ Recognition as a Tenant
  • a DCJ rental bond
  • ending Private Rental Subsidy assistance.

All first and second tier appeals relating to these decisions are conducted using the accelerated appeal process, provided a client has consented to the appeal being accelerated. A client can request an accelerated appeal by completing and submitting the relevant section of the Review of Decision (First Tier Appeal) Application DH0173PDF, 343.9 KB or the Review of decisions - First Tier Appeal Application online form which includes consent for referral of the appeal to the HAC as an accelerated appeal. For convenience, some other DCJ forms also include a section for requesting an accelerated appeal. Go to Timeframes for clients to lodge an appeal below for more information about how to request an accelerated appeal and the timeframes.

If the outcome of an accelerated appeal is in the client’s favour, the client will be advised of the decision in writing.

If the outcome is not in the client’s favour, the client’s file will be referred directly to the HAC for a second tier appeal. The client will be advised in writing of the final outcome after the second tier independent review is completed.

All appeals relating to Section 149, regardless of the recommendation made by the reviewing officer, must be sent by DCJ to the HAC.

Accelerated appeals relating to first offers of alternative social housing made to DCJ tenants being relocated for portfolio management purposes

DCJ tenants who are being relocated for portfolio management purposes can appeal the suitability  of a first offer of an alternative social housing property.

DCJ will complete an accelerated first tier appeal and the tenant will be advised of the decision in writing. If the outcome is not in the tenant’s favour, DCJ will refer the tenant's file directly to the HAC for a second tier accelerated appeal.

The tenant will be advised by DCJ in writing of the final outcome after the second tier independent review by the HAC is completed. For more information, go to Timeframes for clients to lodge an appeal.

Accelerated appeals under Section 145 of the Residential Tenancies Act 2010

Appeals under Section 145 of the Residential Tenancies Act 2010 relate to a DCJ decision that a tenant is no longer eligible to continue living in a property managed by DCJ. For more information, see the Types and Length of Lease policy.

In an appeal conducted under Section 145 of the Residential Tenancies Act 2010, the assessing officer will consider:

• any representations made by the tenant, and
• the particulars of the reasons provided by the original decision maker in accordance with Section 145(2) of the Residential Tenancies Act 2010.

DCJ will interview the tenant in all appeals relating to Section 145 of the Residential Tenancies Act 2010.

The outcome of the appeal may be any of the following:

• a Notice of Termination should be issued, or
• a Notice of Termination should not be issued, or
• a lease extension should be granted.

Accelerated appeals under Section 149 of the Residential Tenancies Act 2010

Appeals under Section 149 of the Residential Tenancies Act 2010 relate to a DCJ decision to issue a notice to terminate a tenancy when it has offered alternative social housing to a tenant and the tenant has refused all suitable offers of accommodation. For more information, see the Changing a Tenancy policy.

A tenant can request an accelerated appeal by completing the relevant section of the Application for Review of Decision – Section 149 Residential Tenancies Act DH0127 PDF, 47.69 KB form which includes consent to refer the appeal to the HAC.

This form must be lodged with DCJ within 14 calendar days of the offer being made.

If the client does not lodge the form within 14 calendar days, DCJ will not conduct an accelerated appeal. No other appeal to DCJ or the HAC will be considered.

The review will be conducted by a DCJ staff member in a management position.

When reviewing decisions under Section 149 of the Residential Tenancies Act 2010 about terminating a tenancy, the manager will consider:

• any representations made by the tenant, and
• the particulars of the reasons provided by the original decision maker in accordance with Section 149(3) of the Residential Tenancies Act 2010, and
• guidelines and procedures relating to Section 149 of the Residential Tenancies Act 2010.

The outcome of the review may be any of the following:

• further offers of accommodation should be made, and the number of offers, or
• a Notice of Termination should be issued, or
• a Notice of Termination should not be issued.

As per section 4.3 of the Procedures Approved by the Minister for Reviews under Section 149 of the Residential Tenancies Act 2010 PDF, 934.44 KB, all appeals relating to Section 149, regardless of the recommendation made by the reviewing officer, must be sent to the HAC.

DCJ will hold a property offered under Section 149 of the Residential Tenancies Act 2010 for the duration of the review process.

Accelerated appeals relating to a change of circumstances after a DCJ lease review

Where a tenant remains ineligible to continue living in a property managed by DCJ after a change in their household circumstances has been considered, the tenant may request an accelerated review of this decision.

The outcome of the review may be any of the following:

• a Notice of Termination should be issued, or
• a Notice of Termination should not be issued, or
• a lease extension should be granted.

Accelerated appeals relating to DCJ Recognition as a Tenant

DCJ may make a decision not to grant a provisional lease or DCJ Recognition as a Tenant following an assessment of a client’s eligibility under the Changing a Tenancy policy.

If the client has not already provided consent for an accelerated appeal from the initial application, they will have seven calendar days to provide written consent. If the client does not provide written consent, DCJ will not conduct an accelerated appeal. No other appeal to DCJ or the HAC will be considered.

Accelerated appeals relating to a DCJ rental bond payment deferral request

DCJ may make a decision to not grant a deferral of DCJ rental bond payments following an application for a deferral.

If the client has not already provided consent for an accelerated appeal to occur when applying for deferral, they will have seven calendar days from the date of receiving the decision to provide written consent. If the client does not provide written consent, DCJ will not conduct an accelerated appeal. No other appeal to DCJ or the HAC will be considered.

Accelerated appeals relating to withdrawal of Private Rental Subsidy assistance

DCJ or a SHMT community housing provider participating in Housing Pathways may make a decision to end Private Rental Subsidy assistance either because it has conducted a review of the client’s eligibility and determined that the client is no longer eligible, or because the client has refused a suitable offer of social housing and is no longer eligible to receive Private Rental Subsidy assistance.

In the situation where the decision has been made to withdraw a Private Rental Subsidy due to the client’s refusal of a suitable offer of a DCJ managed property, DCJ will hold the property vacant until the accelerated appeal process is finalised.

If the offer of social housing was made by a community housing provider participating in Housing Pathways, the community housing provider will advise the client if it will hold the property while the appeal is being processed and if so, the length of time it will be held.

If the client has not already provided consent for an accelerated appeal to occur, they have seven calendar days to provide written consent. For more information, go to Timeframes for clients to lodge an appeal. If the client does not provide written consent, DCJ or the community housing provider participating in Housing Pathways will not conduct an accelerated appeal process and the property will be reallocated. No other appeal will be considered.

Appeals relating to DCJ strike notices for antisocial behaviour

DCJ may issue a tenant with a strike notice when a substantiated incident of antisocial behaviour has occurred. DCJ tenants can appeal the decision to issue a first or second strike notice.

For the purposes of this policy, first tier appeals for strike notices are the same as “submissions” under Section 154C subsection (2) (f) of the Residential Tenancies Act 2010.

A tenant has 21 calendar days to appeal a decision to issue a first or second strike notice. If the tenant does not lodge an appeal within that period, no other appeal to DCJ or the HAC will be considered.

Appeals relating to the cancellation of the DCJ rent subsidy

DCJ may make a decision to cancel a tenant’s rent subsidy either because it has conducted a review of the tenant’s eligibility for a rent subsidy and found the tenant is no longer eligible; or because the tenant has not responded to a rent subsidy review request.

A tenant has 21 calendar days to appeal a decision to cancel their rent subsidy. If the tenant does not lodge an appeal within that period, no other appeal to DCJ or the HAC will be considered.

Decisions that can be appealed 

Housing assistance:

• eligibility for:
  • Emergency Temporary Accommodation
  • Initial Temporary Accommodation
  • Social housing
  • Joint tenancy
  • Housing assistance for elderly clients
  • Tenancy Assistance
  • Rentstart Move
  • Advance Rent
  • Rentstart Bond Loan
• confirmation of Aboriginality
• removal from the NSW Housing Register
• former social housing tenant category.

DCJ Recognition as a Tenant:

• eligibility for:
  • Provisional Lease
  • Recognition as a Tenant.

Offers of social housing:

• location offered when housing assistance is being provided to a client on the NSW Housing Register
• classification of a rejected offer by a client on the NSW Housing Register as 'suitable’, with some exceptions as noted in Decisions that cannot be appealed
• the suitability of an offer made and the assessment of bedroom entitlement when a Vacant Bedroom Charge is applied to a DCJ tenant
• first offer of alternative social housing made to a DCJ tenant being relocated for portfolio management purposes.

Type and length of lease:

• type and length of lease offered when entering DCJ managed housing
• lease extension not offered to a DCJ tenant on a two, five or 10 year lease due to a change of circumstances after a lease review
• type and length of lease offered at lease extension to a DCJ tenant
• notice under Section 145 of the Residential Tenancies Act 2010 that a DCJ tenant is no longer eligible to reside in public housing.

Property repairs, modifications, maintenance and damage:

• DCJ tenant request to waive repair cost charges on the grounds of ill health, domestic and family violence or the criminal activity of a third party
• DCJ tenant repair cost charges
• tenant charges at the vacation of a property when not covered by the NCAT
• DCJ tenant request for home modifications to a property that they currently live in for disability/medical reasons
• eligibility assessment of a DCJ tenant when considering a request for a swimming pool.

Antisocial behaviour:

• first and second strike notices issued by DCJ for antisocial behaviour.

Absence from a DCJ managed dwelling:

• request for absence from a DCJ managed property
• eligibility for $5 minimum rent charge.

Changes to a household of a DCJ managed property:

• request to house an additional occupant at a DCJ managed property.

Transfer and mutual exchange:

• eligibility
  • to transfer properties for a DCJ tenant
  • for a mutual exchange of properties for a DCJ tenant
  • for tenancy reinstatement for a former DCJ tenant
  • for priority transfer of a DCJ tenant.

Ending a tenancy:

• eligibility for a statement of satisfactory tenancy for former DCJ tenants
• former social housing tenant category
• decision to terminate a DCJ managed tenancy
• decision by DCJ to issue a notice to terminate a tenancy when it has offered alternative social housing to a tenant and the tenant has refused all suitable offers of accommodation.

Rentstart Bond Loan:

• the amount of assistance provided under Rentstart Bond Loan, for example, the amount of bond assistance and/or Advance Rent provided
• decision to
  • decline a client applying for their third Bond Loan
  • suspend a client’s access to further Rentstart assistance
  • decline an application when a client makes a new application and they are suspended from further assistance
  • decline a payment variation request
  • decline a payment deferral request.

Private Rental Subsidy assistance:

• ending Private Rental Subsidy assistance following a review
• ending or cancelling Private Rental Subsidy assistance following a refusal of a suitable offer of social housing
• ending Private Rental Subsidy assistance following an investigation into non-disclosure.

Rent Choice Subsidy assistance:

• ending or cancelling Rent Choice Subsidy assistance following a review
• adjusting, ending, or cancelling Rent Choice Subsidy assistance following an investigation into non-disclosure
• to commence tapering of Rent Choice Subsidy assistance
• to vary the rate of tapering applied to Rent Choice Subsidy assistance
• to decline an application - Rent Choice Assist only.

DCJ Rental Bond:

• decline a request for a deferral of DCJ Rental Bond payments.

DCJ Rent subsidy payments and water charges:

• eligibility for DCJ client or tenant rent subsidy
• calculation of DCJ rent subsidy
• end DCJ rent subsidy
• adjustment or cancellation of DCJ rent subsidy or Rent Choice, following an investigation into rent subsidy non-disclosure
• calculation of water usage percentage charge for a DCJ tenant.

Decisions that cannot be appealed: 

Decisions that cannot be appealed are set out below.

Ineligible – Registrable person:

• the decision that a client is ineligible for social housing because they are a registrable person assessed as meeting any of the ineligible grounds below:
  • they have a history of having committed registrable offences, and
  • it is likely that the provision of social housing will:
    • cause antisocial behaviour, and/or
    • present an unacceptable risk of harm to the client, to other occupants of the building or to neighbours.

Extension of Temporary Accommodation:

• an extension of Temporary Accommodation relates to the continuation of a client’s Temporary Accommodation. Extensions of Temporary Accommodation are generally provided by the local DCJ Housing office or a SHMT community housing provider participating in Housing Pathways following a housing needs assessment.

DCJ rental bond loan:

• the amount of a DCJ rental bond loan payable.

Market rent:

• the market rent applied to a DCJ managed property.

Vacant Bedroom Charge:

• the decision to apply a Vacant Bedroom Charge to a DCJ managed tenancy.

Property sales:

• a decision not to sell a Department of Planning and Environment owned property, managed by DCJ.

DCJ Length of lease:

• decisions in relation to the length of lease offered after a Section 142 notice has been issued to an existing DCJ tenant.

Notices and offers:

• issuing a Notice of Termination for breaches of a DCJ tenancy agreement, for example rent arrears or antisocial behaviour
• the suitability of an offer made to tenants under Section 149 of the Residential Tenancies Act 2010.

Tenancy management transfer:

• the transfer of tenancy management from DCJ managed housing to tenancy management by a community housing provider.

Home modifications:

• requests for home modifications from an applicant listed on the NSW Housing Register.

Private Rental and Rent Choice Subsidy assistance:

• the amount of assistance provided under Private Rental Subsidy assistance
• the amount of assistance provided under Rent Choice Subsidy assistance
• decisions to end a Rent Choice Subsidy assistance when the client has been given the maximum 36 months.

Other matters, decisions and policies:

• matters that the NCAT can resolve, such as:
  • if DCJ does not meet its obligations to carry out repairs and maintenance to a client’s property
  • the calculation of actual water charges
  • if a tenant’s request for an alteration to their property is declined
  • if a tenant or DCJ disagree with the amount of a rental bond claim
  • termination of a DCJ managed tenancy
• matters for which clients cannot make an application to DCJ. For example, general upgrades of housing or priority status on the NSW Housing Register
• decisions that are not directly related to the person or household, for example, the allocation of housing to another person
• DCJ policies, rather than the application of policy to a client’s circumstances
• reports made under the Children and Young Persons (Care and Protection) Act 1998.

Timeframes for clients to lodge an appeal 

The timeframe that a client has to lodge an appeal will vary depending on the type of appeal issue.

Timeframe for consideration of appeals

DCJ and/or its associates usually make a decision on a first tier internal review within 21 calendar days of receiving a client’s completed application form. Priority is given to appeals of certain decisions as outlined below.

If an appeal is not likely to be resolved within the relevant timeframe, the client will be advised in writing of the reasons for the delay and the expected timeframe for completion.

4. Legislation and compliance

DCJ and community housing providers participating Housing Pathways manage appeals in accordance with the following legal and compliance frameworks:

• the rules of procedural fairness in accordance with administrative law
• Community Housing Complaints, Issues and Appeals Management Framework
• DCJ Code of Ethical Conduct
• Procedures Approved by the Minister for Reviews under Section 149 of the Residential Tenancies Act 2010
• the Residential Tenancies Act 2010
• the Housing Act 2001
• the Privacy and Personal Information Protection Act 1998
• the Health Records and Information Privacy Act 2002.

5. Further information

If a client feels the issue has not been satisfactorily resolved, they may contact the NSW Ombudsman.