Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Breakspear v Secretary, Department of Family and Community Services [2018] NSWCATAD 64 Hearing dates: 13 February 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Leave is refused for the Applicant's complaint of disability discrimination to proceed. Catchwords: HUMAN RIGHTS – where complaint of disability discrimination in the provision of accommodation declined by President of Anti-Discrimination Board as lacking in substance – whether leave should be given for the complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW),s 49B, s 49N, s54(1)(c), s 96, s 87B(3), s 92, s 102 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 36, s 64(1) Cases Cited: Douglas v Department of Land and Housing [2011] FMCA 1028 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 IW v City of Perth (1997) 146 ALR 696 Texts Cited: Rees, Rice and Allen, Australian Anti-Discrimination & Equal Opportunity Law, (3rd ed, 2018, The Federation Press) Category: Procedural and other rulings Parties: Darrin Breakspear (Applicant) Secretary, Department of Family and Community Services (Respondent) Representation: Applicant (self-represented) Counsel: K Edwards (Respondent) Solicitors: T Mai (Legal Officer, Department of Family and Community Services) (Respondent) File Number(s): 2017/00285547 Publication restriction: Under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the names of any tenants of the Respondent, other than the Applicant, mentioned in these proceedings is prohibited. REASONS FOR DECISION Overview 1. Mr Breakspear was a social housing tenant from 2013 to December 2016. He complains that his landlord, the Department of Family and Community Services, has discriminated against him on the ground of disability in breach of the Anti-Discrimination Act 1977 (NSW). The President of the Anti-Discrimination Board declined his complaint as "lacking in substance" and Mr Breakspear has requested that it be referred to the Tribunal: Anti-Discrimination Act, s 96. The issue is whether I should give Mr Breakspear permission for the complaint to be heard in the Tribunal. The test, in summary, is whether it is "fair and just" to do so: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. 2. Mr Breakspear has Addison's disease, a condition caused by the failure of the adrenal glands to produce enough cortisone for normal bodily functions. The disease has several physical symptoms and also affects the way Mr Breakspear responds to stress. He is receiving treatment for this condition, but an otherwise trivial illness can trigger an "Addisonian crisis" which, according to one treating specialist, can be life threatening. Another treating specialist has recommended accommodation in a quiet location in a stand-alone house to reduce Mr Breakspear's exposure to stress. 3. Mr Breakspear represented himself in these proceedings. He told me that he has not had any problem with any of his private tenancies. He provided several positive references from real estate agents and landlords in support of his case. He said that the Department has housed him with other tenants who misbehaved but they were not evicted. He argued that the Department has discriminated against him because of his disability. 4. I understand that Mr Breakspear is complaining about the following conduct by the Department: 1. evicting him from the first tenancy; 2. treating his rejection of an offer of a second tenancy as the rejection of a reasonable offer; and 3. declining to offer him ongoing temporary accommodation after allegedly breaching the third tenancy agreement. 1. The period of the complaint is the 4 ½ months from 14 November 2016 to 31 March 2017. I have only considered conduct within that period. 2. In summary, the Department submitted that Mr Breakspear has a lengthy history of abusing, intimidating and harassing Departmental staff and contractors. The Department says its decisions were based on his conduct, not his illness. 3. For the reasons I now give, I have decided that it would not be fair or just for Mr Breakspear's complaint to go ahead. Legal principles for giving permission for complaint to go ahead 1. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to go ahead in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28]–[38]. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what [is] fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted"; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. As the Supreme Court noted, the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint. The President may decline a complaint on any one of the following grounds set out in s 87B(3)(b) or s 92: 1. the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or 2. the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, 3. the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, 4. another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, 5. the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, 6. the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or 7. it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or 8. in respect of a complaint made wholly or partly on behalf of another person or persons (including a complaint made on behalf of a person who lacks legal capacity), if at any time the President is not satisfied that the person who made the complaint is acting in the best interests of the person or persons on whose behalf the complaint was made or retains the confidence of that person or those persons; or 9. for any other reason no further action should be taken in respect of the complaint, or part of the complaint. 1. When considering whether it is fair and just for a complaint to proceed, the Tribunal can take into account whether any of the reasons for declining a complaint listed above apply to the complaint. Both the factual and legal basis for the complaint are relevant when determining whether to grant leave. The onus is on the applicant to satisfy the Tribunal that the complaint should go ahead. 2. As well as the power to refuse leave for a declined complaint to go ahead, the Tribunal has power to summarily dismiss a complaint which has been referred to the Tribunal by the President under s 93B or s 93C: Anti-Discrimination Act, s 102. However, the legal principles relating to summary dismissal do not bind the Tribunal when determining whether to give permission for a declined complaint to go ahead. 3. In summary, the requirement that the Tribunal give leave before a declined complaint can go to hearing, must be exercised having in mind the scope and purpose of both the Anti-Discrimination Act and the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Anti-Discrimination Act is remedial and should be given a liberal construction: IW v City of Perth (1997) 146 ALR 696 at 702. The guiding principle in s 36 of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Eviction from first tenancy Background 1. According to Mr Breakspear, from the moment he moved into a block of six units there were residents who were drunk, fighting with one another, arguing loudly, destroying property and threatening him. He complained to the Department, to the NSW Police Force and to politicians about the behaviour of tenants. He said the behaviour was exacerbating his illness. While Mr Breakspear admits that the manner in which he has communicated with Departmental staff may have become heated at times, he says his reactions were directly related to the emotional distress caused by Addison's disease. 2. On 19 August 2016, the Consumer and Commercial Division of the Tribunal terminated Mr Breakspear's residential tenancy agreement by consent. The Department summarised those orders and provided extracts from them in their submissions. As these are orders of the Tribunal, and the precise terms of those orders is relevant to these proceedings, I accessed the Tribunal's data base to obtain a full copy of those orders. The relevant orders were as follows: 1. By consent, the Residential Tenancy Agreement is terminated in accordance with: *s 87 of the Residential Tenancies Act 2010 as tenant has breached the agreement. *by causing or permitting a nuisance and by interfering or causing or permitting interference with the reasonable peace, comfort or privacy of any neighbour of the tenant * s 92(a) of the Residential Tenancies Act 2010 as the tenant/occupant has cause or permitted serious or persistent threat or abuse to the landlord/agent/employee/contractor. 2. By consent the Residential Tenancy Agreement is terminated immediately and possession is to be given to the landlord on the date of termination. 3. By consent, the order for possession is suspended until 19 October 2016. Consideration of complaint about first tenancy 1. Section 49N of the Anti-Discrimination Act sets out the circumstances in which it is unlawful for a person who provides accommodation to discriminate against a person on the ground of disability: 49N Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by refusing the person's application for accommodation, or (b) in the terms on which the person is offered accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person, or (c) by subjecting the person to any other detriment. … 1. The Department agreed that it had evicted Mr Breakspear but submitted that it had not done so on the ground of his disability. I understand that Mr Breakspear does not agree that he has a lengthy history of abusing, intimidating and harassing Departmental staff and contractors. He says that he has never been charged with such behaviour and the police have never been called to respond to his supposed behaviour. He says that Departmental staff should have treated him with due consideration. 2. Mr Breakspear's first tenancy was terminated by a consent order made by the Consumer and Commercial Division of this Tribunal and he was subsequently evicted from the premises. Even if a ground for the eviction was Mr Breakspear's disability (or behaviour that was a symptom of that disability), there is a general exception to the application of the Anti-Discrimination Act that may apply in this case. Section 54(1)(c) provides that: 54 Acts done under statutory authority (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: … (c) an order of the Tribunal, 1. It is arguable that it was necessary for the Department to comply with the Tribunal's order terminating Mr Breakspear's tenancy. Even if that exception does not apply to this case, it is not fair or just to allow this part of Mr Breakspear's complaint to go ahead in circumstances where he has agreed to his tenancy being terminated and the Tribunal has made an order to that effect. Treating offer of second tenancy as the rejection of a reasonable offer Background 1. When the Consumer and Commercial Division of the Tribunal terminated Mr Breakspear's first tenancy, the following notation was made; By consent, the Tribunal notes: a. The landlord agrees to offer the tenant alternate social housing accommodation, which is suited to the tenant's needs, at another location in accordance with the social housing matching and offering policy. b. The tenant agrees to engage with support services to assist him to sustain a successful tenancy. c. All communications between the parties will be facilitated through Mid Coast Tenants Advice and Advocacy Services until a suitable support service is located to assist with communications. 1. On 17 October 2016, in accordance with the agreement set out by the Tribunal, the Department offered Mr Breakspear alternative accommodation. He rejected that offer for nine reasons set out in a letter dated 21 October 2016. Five of those reasons related to excessive noise, one related to lights from oncoming vehicles and another related to his occasional difficulty negotiating stairs. The remaining objections related to the absence of a garage and the general condition of the house. According to Mr Breakspear, these matters would have led to an increase in day to day stress which would have made his illness worse. 2. The Department regarded Mr Breakspear's objections to the offer of the second tenancy as "a rejection of a reasonable offer". The letter went on: We have made this decision because, after considering your reasons for rejecting the offer, we believe that those reasons are based on personal preferences, which do not change your basic housing requirements. We consider a reasonable offer to be one that matches the number of bedrooms your household requires, your chosen area (not suburb) and any special needs or medical/disability requirements demonstrated on your application. 1. Mr Breakspear was told that if he disagreed with the decision, he should first discuss his concerns but if he was not satisfied, he could ask for a formal review of the decision. I understand that he did not ask for a review. Consideration 1. I have assumed that the conduct about which Mr Breakspear is complaining is that the Department characterised his rejection of the offer as the rejection of a reasonable offer. This conduct could be characterised as subjecting Mr Breakspear to a "detriment": Anti-Discrimination Act, s 49N(2)(c). If that is correct, the question is whether, by characterising the rejection in that way, the Department has discriminated against him on the ground of disability. Disability discrimination is defined in s 49B: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … 1. Section 49B(1)(a) refers to what is known as "direct" discrimination. The person must be treated in the same way as a person who does not have that disability would have been treated. In other words, a person providing accommodation must treat the person's disability as being an irrelevant consideration when dealing with that person: Rees, Rice and Allen, Australian Anti-Discrimination & Equal Opportunity Law, (3rd ed, 2018, The Federation Press) at [2.5.2]. 2. Mr Breakspear was asking the Department to treat him more favourably than other tenants, not to treat him in the same way as it would have treated other tenants. The direct discrimination provisions are of little assistance to Mr Breakspear because his argument is that the Department should have accommodated his disability by not exposing him to the stress of tenants who were noisy and disruptive. 3. Section 49B(1)(b) refers to what is known as "indirect" discrimination. The four elements of indirect discrimination are that: 1. the Department has required Mr Breakspear to comply with a requirement or condition; 2. a substantially higher proportion of people who do not have his disability comply or are able to comply with that requirement or condition; 3. Mr Breakspear is not able to comply with the requirement or condition; 4. the requirement or condition is not reasonable having regard to all the circumstances. 1. As an example, this kind of discrimination occurs when the person providing the accommodation requires everyone applying for housing to comply with the same condition or requirement. If such a requirement has a substantially disproportionate effect on tenants with a disability and is not reasonable in all the circumstances, the requirement will be unlawful. 2. Mr Breakspear did not characterise his complaint as one of indirect discrimination. The Department denied that it had imposed a requirement or condition that Mr Breakspear live in the second tenancy because the Department has no power to tell any person where to live: Douglas v Department of Land and Housing [2011] FMCA 1028. As Mr Breakspear has not identified a requirement or condition that the Department imposed on everyone in his situation, a complaint on this ground lacks substance. 3. It is apparent from the terms of the consent order made in the Tribunal that the Department offered Mr Breakspear the second tenancy because they had agreed to offer him alternate social housing accommodation, which suited his needs, at another location. The Department regarded the offer as meeting Mr Breakspear's special needs or medical/disability requirements demonstrated in his application. Mr Breakspear does not agree that it meets his needs. 4. The definition of disability discrimination in s 49B of the Anti-Discrimination Act does not impose a positive obligation on a landlord to treat a tenant more favourably than it treats a person without that tenant's disability. While the landlord cannot impose a requirement or condition of all tenants which has a disproportionate effect on tenants with a disability, there is no obligation to accommodate a tenant's disability. 5. The legislation is somewhat confusing because there is an exception available to landlords which apply when a person would require special services or facilities. Section 49N(4) provides that: (4) Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent. (Emphasis added.) 1. But exceptions such as this only apply when the landlord has breached a substantive provision such as s 49N by discriminating against the tenant either directly or indirectly. Unless a tenant can prove that the treatment is on the ground of his or her disability, or that a requirement or condition which meets the test for indirect discrimination has been imposed, the exceptions, such as those in s 49N(4), do not arise for consideration. 2. I am not satisfied that Mr Breakspear would be able to prove that the Department has discriminated against him either directly or indirectly. Because the exception in s 49N(4) does not arise for consideration, it is not fair or just for this part of the complaint to go ahead. Third tenancy Background 1. On 14 December 2016 Mr Breakspear was evicted from the first tenancy pursuant to a warrant following further proceedings in the Consumer and Commercial Division of the Tribunal. Following his rejection of the offer of the second tenancy, the Department arranged for him to stay in a motel for four nights from 15 December 2016. According to the Department, Mr Breakspear was provided with the terms and conditions of the temporary accommodation. Mr Breakspear denies that that was the case. 2. On 17 December 2016 the Department says that it received information that Mr Breakspear had breached the terms and conditions of his temporary accommodation by allowing a friend to stay with him in the room and by engaging in anti-social behaviour. On that basis, the Department declined Mr Breakspear's access to ongoing temporary accommodation. 3. According to Mr Breakspear, a woman used the bathroom in the motel six times but did not stay in the room. Mr Breakspear says that if he had known what the terms and conditions of the temporary accommodation were, he would have abided by those terms. Consideration 1. I have assumed that the conduct about which Mr Breakspear is complaining is the decision to decline to provide him with ongoing temporary accommodation. If that can be characterised as refusing his application for accommodation, or subjecting him to a detriment under s 49N(1)(a) or s 49N(2)(c), Mr Breakspear would still have to prove that the conduct constitutes direct or indirect disability discrimination as defined in s 49B. 2. The Department submitted that it declined ongoing temporary accommodation on the basis of Mr Breakspear having breached the terms of that accommodation. There is no basis for drawing an inference that a reason for that decision was that Mr Breakspear has a disability. 3. The Department acknowledged that it had imposed a requirement or condition on Mr Breakspear to abide by the terms of his tenancy agreement. Whether compliance with the terms of a contract amount to the imposition of a requirement or condition is an open question. If it is a requirement or condition, there was no evidence or submissions made that it was not reasonable in all the circumstances. In fact, Mr Breakspear agreed that if he had known about the terms and conditions of the temporary accommodation, he would have abided by them. In those circumstances, leave for this part of the complaint to go ahead should be refused. 4. For the reasons I have given, I make the following order: Leave is refused for the Applicant's complaint of disability discrimination to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2018