Submission to Statutory Review of Boarding Houses Act 2012

Newtown Neighbourhood Centre 1 Bedford St/PO Box 19, Newtown NSW 2042 |ABN 96 884 462 833

E [email protected] | P +61 2 9564 7333 | W newtowncentre.org

Submission to Statutory Review of Boarding Houses Act 2012 Policy and Regulation Division, Department of Customer Service McKell Building 2-24 Rawson Place Sydney 2000 Newtown Neighbourhood Centre submission

Introduction

“The key purpose of the Boarding House Bill 2012 is to protect the rights of residents living in all

boarding houses…particularly for people who may otherwise struggle to afford private

accommodation”

“The bill will address longstanding issues in the industry and decades of inaction by government,

issues impacting on the safety, welfare and well-being of boarding house residents…”

“Ultimately we as a community cannot continue to stand by and allow any environment in which

people are subjected to abuse or find themselves in completely unacceptable and unhygienic slummy

conditions….”

We welcomed the words of the Hon Andrew Constance MP when he introduced the Boarding House

Bill 2012 to the NSW Parliament in October 2012.

Located in an area with one of NSW highest density of unlicensed boarding houses (as they were

termed) we were aware of how neglected the sector had been and of the urgent need for reform and

oversight.

Boarding Houses are a form of accommodation that are in demand, sometimes, as housing of last

resort for those unable to access alternate housing options. They have an important place in the

housing supply continuum for the community. The model plays a role in increasing the supply of

accessible housing, and helps relieve the pressures on the inadequate supply of social housing. They

help to prevent street homelessness, as well as being a source of homelessness due to the tenure

insecurity and fluidity of the sector.

Boarding houses play a significant role in housing some of the most vulnerable people in the

community including those recovering from a mental illness, leaving custody, and older people forced

out of the mainstream private rental sector or people with traumatic histories.

If appropriately managed and maintained, and with appropriate oversight and regulatory compliance

the sector can be an essential part of the housing system. However to realise its full potential

Government agencies (both local and State) need to play a proactive role in the sector.

The hopes for the 2012 Act are for the most part, unrealised. The Act was intended to provide better

protection for residents of boarding Houses, but life and tenure security has changed little for the

residents of Sydney’s Inner West boarding houses and in fact across much of the State.

The Boarding house industry should not be regarded as a marginal sector. A conservative estimate of

its annual value is in excess of $130,000 000, across the State. A significant slice of this market

operates under the radar. In failing to come to grips with the sector the State Government is failing



not only the residents but the entire community in allowing poor housing environments to continue

and tax income foregone.

The problems

Complexities of definition (types of premises) New Generation and monitoring adherence to

affordability

The traditional view of a boarding house is fast fading, and we might be seeing a generational change

in such operators. We can no longer be certain that when we are discussing boarding houses we

share the same understanding of the type of premises we are talking about.

Why does this matter? Perhaps there are at least four reasons:

• First, it is very hard to tell if the objectives of the Act are being achieved if we don’t know

what we should be counting. This is very clear when it comes to difficulty in answering basic

questions like whether the sector has grown and is it providing an affordable and appropriate

option for those who are excluded from the private market and a grossly inadequate supply

of social housing (Martin 2019).

• Second, if the regulation of the boarding house sector under the Act is to be effective, we

need to be clear who it applies to. The current lack of clarity about how many premises or

operators are currently unregistered, but should be, suggests that this is not the case.

• Third, it is clear that the responsibility for providing oversight of the general boarding house

sector, which lies with local government is very unevenly implemented, allowing among other

things, the continued existence of sub-standard boarding house dwellings. However, if the

definition of a general boarding house is ambiguous, then, combined with the lack of

resources for local government to administer the regulations, it is understandable that it can

sometimes be seen as just too hard.

• Finally, the risk of an unclear definition is that it may result in residents being inappropriately

excluded from the rights and protections they should have access to, in particular, the

protections under the Residential Tenancies Act. Even more fundamentally, it fails to make

explicit the nature of the occupancy and the rights and protections that should be

commensurate with it. A simple example of the former is the initial confusion with the

introduction of so-called ‘new generation boarding houses’ under the ARHSEPP over whether

there should be occupancy agreements or tenancy agreements. The latter gives rise to an

unresolved debate about what level of certainty should exist regarding the security of the

tenure of a boarding house resident.

So what are the difficulties with the definition of a ‘boarding house’?

It is ambiguous

The most basic is that it fails to unambiguously identify the criterion that distinguishes ‘boarding-

house-like’ arrangements – although it relies on an implicit understanding that this class of premises

are not ‘dwelling houses’, but are “let in lodgings” (Martin 2019). The case law broadly defines a

‘dwelling’ as being occupied in the same way as a family group would occupy it – and that means

occupied under their own control with all the appropriate amenity.



Parts of the definition in Section 4 of the Act are straightforward:

boarding premises means premises (or a complex of premises) that:

(a) are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and

(b) provide boarders or lodgers with a principal place of residence, and ….

(d) have rooms (…) that accommodate one or more boarders or lodgers

However, the definition goes on to confuse the issue by opening the definition to aspects more

reasonably associated with a dwelling.

(c) may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and

(d) have rooms (some or all of which may have private kitchen and bathroom facilities)

That is, the definition could include, or be entirely comprised of, premises with no shared facilities

and private kitchens and bathrooms, which should more properly be covered by the Residential

Tenancies Act.

The excessive generality (indeed ambiguity) of the definition of ‘boarding house’ or ‘general boarding

house’ is further demonstrated by the need in Section 5 (Meaning of Registerable Boarding House)

for 17 exclusions.

Of course, this is not an argument to reduce the conditions of boarding house residents by preventing

operators from providing private kitchens or bathrooms. But it does suggest that there should be

greater clarity about when premises cease to be a boarding house.

New generation boarding houses

This is clearly the case for the so-called ‘new generation boarding houses’. These have proliferated

under the provisions of the Affordable Rental Housing SEPP (ARHSEPP). While there is no formal

definition, according to the Department of Planning, “The AHSEPP encourages both the traditional

form of boarding houses, being those with shared facilities as well as new generation boarding

houses, being those that are buildings with self-contained rooms”. It is clear that these are simply

studio apartments that attract planning concessions.

While they meet a demand from a number of groups, they generally do not provide accommodation

that is affordable to those who are most acutely exclude from the private rental market. Quite

properly, most provide tenancy rather occupancy agreements. However they should be explicitly

excluded from coverage of the Act or any data on boarding house supply.

‘General boarding houses’ and ‘regulated assisted boarding houses’

Section 5 (Meaning of Registerable Boarding House) defines the two types of boarding houses that

are required to be registered – ‘regulated assisted boarding houses’ which provide accommodation

and services for residents with additional needs, and ‘general boarding houses’.

The regulation and supervision of assisted boarding houses seems to be generally appropriate.

However, an issue arises at the boundary of the two types of registered boarding houses.



A general boarding house may accommodate a resident with additional needs. But if there are two

such residents the Secretary may declare those premises to be an assisted boarding house. (Section

39) The qualification is that: “the making of the declaration is necessary to ensure the wellbeing of

the residents of the premises”.

It seems that no such declarations have been made, even though it seems reasonable to believe that

many general boarding houses accommodate more than two residents with additional needs. This

raises the question of whether the sharp distinction between the two types of boarding houses

provides the right assurance of protections and supports for residents with additional needs in mixed

boarding houses, or whether it provides a disincentive to either notify or make a declaration.

Alternatively, aspects of the supervisory regime for assisted boarding houses could be extended to

residents of general boarding houses with additional needs without a full change of registration type.

The informal sector

The landscape is further complicated by the growing ‘rent a room’ sector or informal sector. There

are properties advertised daily on gumtree, and a host of other websites that meet the technical

definition of a boarding house - unrelated people individually renting a bed space sharing a premises.

In part this simply compounds the existing problem of non-compliance with and non-enforcement of

the Act. But the arbitrary nature of the threshold for registration – and hence the application of the

protections, both in terms of standards and occupancy rights (agreements) – which is limited to

premises with “5 or more residents” unrelated to the proprietor or manager leaves significant scope

for an unregulated informal sector offering no protections to residents, as well as creating incentives

at the boundary to evade or not comply with the Act.

In Queensland the Residential Services (Accreditation) Act 2012 has the following definition:

A service is a residential service if—

(a) the main purpose of the service is to provide accommodation, in return for the payment

of rent, in 1 or more rooms; and

(b) the room or rooms are occupied, or available for occupation, in the course of the service

by at least 4 residents; and

(c) in the course of the service, each of the residents— (i) has a right to occupy 1 or more

rooms; and (ii) does not have a right to occupy the whole of the premises in which the

rooms are situated; and (iii) does not occupy a self-contained unit; and (iv) shares other

rooms, or facilities outside of the resident’s room.

We would suggest the definition used in Queensland has less ambiguity than the current NSW BH

definition.

What we would like to see

The traditional understanding of a boarding house is a premises where a person rents a room and

shares facilities with other unrelated occupants in the property. If these conditions do not apply the

premises should not be considered a boarding house.



We would therefore suggest these self-contained properties (especially those developed under

Affordable Rental Housing SEPP (ARHSEPP) are no longer referred to as boarding houses. Apart from

the poor reputation of a ‘boarding house’, and the difficulties these developments encounter in the

DA process there is a considerable difference between a self-contained studio apartment, or micro

unit and a dwelling where a room is rented.

Tenure security

Boarding house residency is often precarious as residents have weak tenure rights (Chamberlain,

2014: 6). In NSW this means evictions can occur ‘with reasonable written notice’ without grounds

(NSW Boarding Houses Act 2012, Occupancy Principles 10 (1)). Residents have little control over living

space and landlords are recognised as having mastery of the premises.

Boarding house residents are spending their limited funds in the private rental market for the right to

occupy a single room. The NSW Residential Tenancy Act (RTA) excludes them from its protections.

New South Wales is the only State on the Eastern seaboard to exclude boarding house residents from

the basic tenancy legislation afforded other private sector tenants across Australia. Boarding house

residents in Queensland, South Australia and Victoria are afforded the same basic legal protection as

other private sector tenants. Why are the boarding house residents of New South Wales less worthy

than other renters across the country?

A basic universal principle should be that everyone purchasing a product is entitled to the greatest

protection the law can provide. If people are paying market rents for a product they should be

entitled to the same rights as others, regardless of the size of the product.

Nothing within the RTA would diminish the rights of a BH landlord to regain possession of their

property or carry out an eviction. Indeed many real estate managed boarding houses provide

residents with a Residential Tenancy Agreement, rather than the recommended occupancy

agreement already. Whilst they charge a 4 week bond, rather than the prescribed 2 weeks deposit

within the occupancy principles, we believe residents feel a greater sense of security and protection,

and many BH operators ignore the 2 week security deposit obligations in any event.

Occupancy Agreements and Residential Tenancy Agreements

There are a number of acute problems with the occupancy principles framework that would be

remedied with the extension of the RTA.

• There is no prescribed or mandatory template, leading to a wide variety of agreements, none

of which have been tested in a tribunal. Introducing a prescribed established template

eliminates uncertainty for both landlords and residents.

• The term reasonable is used in relation to occupancy principles. But there have been no test

cases to explore the meaning of the term. Current boarding house residents generally assume



they will not have ‘reasonable’ rights, or fear retaliatory evictions for taking a case to Tribunal.

In our experience residents prefer to move than endure a legal process to enforce basic

‘reasonable’ rights. The Act is failing in its stated intention of protecting the rights of boarding

house residents.

• There is no enforcement or monitoring of the use of Occupancy Agreements. In some cases

residents are issued with a list of house rules and told this is the occupancy agreement. These

often fall far short of the basic occupancy principles.

• Less than 60% of residents in the Evaluation of the Boarding Houses Act 2012 Final Report

reported receiving an agreement. By extending the RTA as a default agreement, (or some

such other mandated agreement) as exists across the rest of the private sector. All parties

would have clarity on the default contractual position.

• There is little evidence that boarding house residents have felt empowered to exert any

rights, under occupancy principles. Only 8% of the 200 residents surveyed in the ACU

research “Evaluation of BH Act 2012” quoted NCAT as the place for resolving disputes with

operators, and only two thirds of occupants had any knowledge of the Act. By making the RTA

the default occupancy agreement for boarding house residents, clarity of rights and

protections would be achieved.


Bringing all private renters under one regime i.e. the Residential Tenancy Agreement (RTA) would

avoid any ambiguity around the rights of different “classes” of private renters.

1. We urge that the RTA be applied across the private rental sector, and boarding house

residents be afforded the same legal protections as other private sector renters.

2. No resident should be evicted without an NCAT order, except in exceptional circumstances

where there may be a threat of injury or damage. The original intention of the Act was to

provide boarding house residents with greater protection (from abuse and exploitation), this

basic and minimal right can only be achieved if there is at the least some minimal external

legal oversight to curb the absolute excesses of power that are well known to occur.

3. If the RTA cannot be extended to include BH residents, we recommend that protections from

retaliatory evictions which exist in the RTA should be included within occupancy agreements

framework.

4. If no other tenure change is possible a prescribed ‘occupancy agreement’ template should be

introduced. This exists within the rest of the private sector in the Residential Tenancies Act,

and should be introduced as a default and basic template for all boarding house occupancy

contracts.



Poor environments / No minimum standards

There is research to suggest that the link between high mortality and low socioeconomic status is strong and while it is known that education, occupation and income have a significant impact on our material conditions the type of housing we live in may also contribute to our life expectancy (Hwang, 2009). In a Canadian study spanning eleven years it was found that the life expectancy for men living in marginal housing was 11 years shorter than the average population and nine years shorter for women in marginal housing (Hwang, 2009). While this data shows the extreme consequence of social exclusion, Australian research into marginal housing shows that residents in this type of accommodation generally experience much higher levels of disadvantage than the population as a whole (Eastgate et al., 2011).

The Act was a missed opportunity to introduce minimum standards for Boarding house environments.

In 2019 is it acceptable for a property housing several people in individual rooms and no cooking

facilities?

We know of several boarding house premises that do not have kitchens. There are also examples

where the communal kitchen is so small only one person at a time can use it. We understand that this

may be an issue that should be addressed under the planning and development controls of the local

council, and indeed many have guidance around boarding houses that covers amenity and room ratio.

The challenge for us on the ground is existing properties, where planning regulations cannot be

applied retrospectively.

Within these long established properties it is not uncommon for us to find a boarding house premises

of 10 or 12 rooms that do not have any provision for a shared kitchen. Some are without wash basins

in each room and there are some properties where only one shower and toilet is provided for 12

rooms. Furthermore many residents are known to have a disability or be ageing. The shared and

poorly maintained facilities are not always suitable or accessible to these residents.


Whilst we do want to see the closure of boarding houses where people are living, we would like to

see some change and improvement in terms of the provision of reasonable shared facilities in many

boarding houses.

1. Much like the subsidies available for essential fire safety works, subsidies should be available

for existing BH properties to ensure reasonable kitchen facilities are available to upgrade

existing BH properties that do not have this most basic of provisions.

Lack of oversight and enforcement

Local Government areas with high concentrations of boarding houses have no additional resources to

undertake the delegated tasks presented by the Act i.e. enforcing registration, ensuring the use of

occupancy agreements, and looking out for vulnerable residents with ‘additional needs’.

The workload and financial impact on some local government authorities is of particular concern. For

example, Inner West Council has over 200 boarding houses registered with Fair trading, while there

was one in Coffs Harbour (Source: Fair Trading list).

The uneven cost of enforcement between LGAs, due to the uneven spatial distribution of boarding



houses across the state, must be addressed.


Many of the responsibilities of the Act were passed to Local Government, with no recognition of the

costs involved. Boarding houses are not uniformly spread across the State and the burden has fallen

more heavily on some authorities than others.

The following recommendations have been jointly supported by the Tenants Union:

1. An accommodation standards and accreditation system for General Boarding Houses be developed.

2. Agencies with responsibility for accreditation, compliance, registration and regulating General Boarding Houses are funded appropriately to improve and enforce the standards of General Boarding Houses

3. Consideration should be given to additional funding (from registration income) to ensure

councils ability to comply with requirements. It should be possible for State Government to

work out a formula of funding those with significant numbers and ensure duties are carried

out by local councils.

Affordability

The boarding house sector is the most affordable housing option, other than social housing, for single

people not in the labour force in high rental urban housing areas such as Sydney. Over 25% of people

seeking assistance from our Boarding House Outreach Service do so because of housing affordability

stress.

Whilst boarding houses can be seen as a form of affordable housing they are still a part of the private

rental market; landlords/operators are running them as a business and therefore to make a profit. As

such boarding house prices will remain at the discretion of said landlords and operators, they will also

be influenced by the same economic factors that other properties in the private rental market.

As boarding house residents are not under the Residential Tenancy Act there is no limit to the amount

of times a landlord can issue a fee increase. This can be a limiting factor for those individuals most

likely to reside in boarding house accommodation (low income or those on fixed government

assistance) as rent increases can force residents out of the boarding house sector and into

homelessness.

Some research by Drake (2018) assessing the affordability of boarding house rooms found that almost

40% of residents were paying over half their income on rent and around 14% were paying more than

70%. Only 14% of residents pay what is considered an affordable rent of less than 30% of income.

One quote from the same research demonstrates the difficulties faced by boarding house residents

when renting in the private market:

“No, its not affordable. Its $220 a week. For a pensioner, that’s a lot. Its $440. Half of my

pension just about. They’re going to be moved out because what used to be $170 a week is

now going up to $230-$240 just by a couple of strokes of paint and tarting up the bathroom.”

(BHR31).



Our service is seeing this happen more and more and without adequate regulation around

determining what a fair rental increase is, we are seeing an increase in the number of boarding house

residents being squeezed out of the market.

How residents pay their rent and therefore manage their finances when on very low incomes will also

have a bearing on affordability. Under the RTA landlords are required to provide a tenant with various

methods of paying, yet this right is not extended to boarding house residents. Those dependent on

very low incomes and welfare benefits should have the right to pay their rent by Centrepay

deductions i.e. directly from their benefits. Many landlords refuse residents this method, and we can

only assume this is so they remain under the radar. This is problematic for many people struggling on

very low incomes, and missing rent payments is a great temptation, when the choice for someone on

Newstart could be as stark as buying food or having to attend a funeral vs paying rent.

One way of increasing affordability would be raising the amount of government allowance afforded to

those on Newstart and Disability Support Pension and is something that is being advocated for

separately. We would suggest that even if this were to happen the only effect on the boarding house

market would be that landlords would increase the rent accordingly and residents would be no better

off financially.


1. A fair rent clause be embedded within the current Boarding House Act. For certain tenancies

in the United Kingdom, a fair rent system exists where by tenants may apply to their local

authority rent officer and a fair rent for the property registered. To qualify a tenant must have

a regulated or secure tenancy. A landlord or a tenant can apply to have a fair rent registered

and the rent registered by rent officers is the maximum rent a landlord can lawfully charge.

For this to work within the boarding house sector in NSW there would need to also be a

change to the way occupancy is managed within boarding houses as currently residents do

not have a regulated or secure tenancy.

2. Introduction of a rental cap would be another way of ensuring that even if, through the

review of the act, boarding houses remain outside the Residential Tenancies act landlords are

unable to increase the rent beyond a set amount and/or within a given period. By introducing

a rental cap you will offer some protection for residents against being priced out of the

market. Residents would also need to be given access to NCAT, including a reasonable

timeframe within which to challenge any rent increases beyond the limit imposed by the cap.

During this time or ‘cooling period’ restrictions would need to be placed on landlords that

would eliminate their ability to evict the resident.

3. If a rental cap is decided against then at the very least we would request that a landlord is

unable to raise the rent more than once a year to afford residents some kind of protection

against un-manageable rent increases that force them to leave.

4. Boarding house owners must register with Centrepay and cannot refuse this as a method of

paying rent for any resident.

The utility of the register

There is growing use of the NSW Fair trading Boarding house register. But all the properties listed are

not the same, as a number of registered boarding houses now fall under the definition of ‘new

generation’ boarding houses



NSW Fair Trading host the register but do not ‘manage’ it. They simply record who has applied to

register. There is no filtering (beyond the two tier system) and some properties, ‘New generation’

boarding houses, for example, should be removed. Initial compliance inspections are delegated to the

local council and in theory once a property is registered with Fair Trading, the local council is notified

and an inspection takes place to ensure compliance with relevant standards. We understand there is

no mechanism by which Fair Trading alerts a local council to a new registration and Local Government

officers we have met with report they are not notified of new (or existing) registrations. Further what

avenues are there for local councils to report back to Fair Trading?

The register is rightly used as a prerequisite to other benefits such as receiving approval to receive

rent bond payments from Housing NSW, and eligibility for boarding house incentive schemes such as

land tax exceptions. Registration is also imperative if a resident is to have access to Centrepay

(providing the operator is willing to accept this method of payment, as some do not), an important

mechanism to avoid falling into arrears when finances are extremely tight. This has already been

discussed in more detail in the ‘affordability’ section.

Furthermore only basic information is made publically available online from the register:

• The name and address of the boarding house

• The name and the residential or business address of each proprietor of the boarding house

• If the boarding house is a general boarding house or an assisted boarding house.

Practical (user friendly problems include):

• Proprietors’ address details are not always provided. Many owners are using the addresses of

real estate agencies, rather than their own contact details.

• No telephone or email contact details are provided. Providing phone numbers and/ or email

contacts would allow people seeking accommodation an easy route to enquiring about

possible vacancies. It is not feasible to visit properties by foot, reducing the utility of the list

for accessing accommodation.

• The register has a search facility, but it can only display 100 properties in any Local

Government area. Local Government Areas that have more than 100 boarding house

properties registered, are denied full information.

• Closed properties are not always removed from the register. Details of the date of the last

property update should be included.

The Victorian public register of rooming houses is maintained by Victoria’s Business Licencing

Authority (BLA), an independent regulator within the Victorian State Governments Justice

Department and records the date that the property was registered, including the following details:

Address, Business owner name, ABN of business, registration status and the relevant council email

contact to report a concern about the boarding house or operator. The current NSW register should

be reviewed to see how it can be improved.



The greatest challenge within the sector is the number of unregistered properties and it should be

noted no operators are known to have been fined as a result of not registering. We believe up to 30%

of boarding houses remain unregistered in some areas.


There should be a particular focus on how registration rates can be improved. The illegal market

removes depth from the legal market and destabilises the sustainability of a healthy supply of

compliant and registered boarding houses

A coordinated publicity campaign around registration aimed at boarding house owners, with support

for local authorities with high concentrations of boarding houses to improve registration rates. The

campaign could promote a time-limited amnesty, with a compliance blitz in the period post campaign.

This may be helped with the prosecution of a proprietor for non-registration that receives media

coverage, and encourages owners to register.

Improved functionality of the register which utilises updated software and that details

telephone or email contact details, and the capacity to list all boarding houses beyond the 100

maximum would be welcome.

1. An indication that the property is known to the Local Council and has the appropriate

Development Application approval would be helpful for those concerned about tenure

security and legality. Documenting those owners who breach the law in the management of

their boarding house.

2. The date information was last updated would be a useful guide for identifying if the

information presented is up to date

3. If the property has mobility access

4. If the property had a caretaker on site

5. If Centre-pay is accepted

6. If meals are provided would be useful

7. A commitment to maintain and update the Register on a regular basis.

People with additional needs

Section 36 of the Act is problematic. The consultation paper has correctly identified the challenge of

definition regarding a person with additional needs and the definitions of disability and impairment

found in the NDIS scheme.

In some cases, DCJ staff are involved in assessing a person’s fit with this definition. However, in other

cases boarding house owners, caretakers, or real estate agents are utilising their judgement. These

people are usually without any training to undertake this role.

Boarding houses are home to some of the most vulnerable people in the community. They often

have been affected by traumatic events in their lives, and also have mental health and/ or drug and

alcohol issues, which may impact on their ability to confidently manage themselves at all times. This

issue may be episodic, but appear to be permanent, and they may need support for a period of time



in their day to day lives, but who will assess this or determine the difference between episodic vs

permanent and therefore who falls under the definition of ‘a person with additional needs’.

An unforeseen consequence of the Act has led to the tenure insecurity of people aging in place, or

recovering from a mental illness and undergoing a treatment program. Many older people may have

lived in a property for significant periods and be settled with what they identify as appropriate

supports. The needs of a person with additional needs, can also be met outside of the NDIS if they

are over 65 i.e. support may be provided by a Commonwealth Home Support Program provider.

Furthermore boarding houses may not be ideal environments for an older frail person whose

condition is likely to be permanent and who may require assistance with daily care. A boarding house

that has two older residents requiring daily assistance with meals or medication could, on paper, find

itself falling foul of the law (S41) and in order to avoid prosecution or penalty would possibly evict

somebody from what may have been their home for many years.

The ACU Evaluation study found that 35% of residents reported there are people in their property

who respondents believe require daily assistance. While this is a subjective, individual resident

response, it demonstrates the prevalence of people with some support needs living in boarding

houses, but who may not be the intended targets of Section 36.

There are also people with support needs (on Community Treatment Orders, or in receipt of Home

Care Packages) who would fall within the definition of a person with additional needs, as outlined in

the act, but whose needs are being met. The question would therefore be is there a difference

between met and unmet needs?

The question also arises as to whose responsibility it is to support any residents to find new housing if

they are judged to have additional needs and to be the ‘second such resident’ living in the boarding

house. If more than one person with additional needs resides in a boarding house the operator is

liable to register the premises as an Assisted Boarding House. This is problematic for many operators

who are confused around the meaning of additional needs, and can cause obstacles to people seeking

to access accommodation.


1. As suggested in the consultation document 25.2.1 where a person with additional needs

resides there should be free and unhindered access to premises for service providers and

enforcement officers. We have witnessed several cases where a person with early signs of

dementia or who is particularly vulnerable due to poor mental health has been exposed to or

at risk of exploitation and coercion in a boarding house setting. It has been incumbent on our

service to involve the Trustee and Guardian to prevent issues of exploitation.

2. Remove the requirement to change the registration of the whole boarding house if there are

more than two residents with additional needs and instead have a requirement to notify

authorities about those particular residents and ensure the appropriate supports are made

available.

Other Considerations

Lack of awareness of the act amongst residents



The Evaluation of the Boarding House act by Newtown Neighbourhood Centre and Catholic University

(2014-2018) found consistently low knowledge by residents of the act and their rights. Over the

course of the four years of data collection on average around 50% of residents surveyed had no idea

that the act even existed. Knowledge around specific aspects of the act were also very low in terms of

residents knowledge and notably only 14% of those surveyed in 2014 were aware that operators were

required to give 4 weeks written notice prior to any rent increase. This declined to only 5% in 2017

which is extremely low.

We believe there is a need for ongoing funding to provide community education to residents and

support agencies on the terms of the act and particularly with any changes that come about from this

review. This would be an ideal time to make sure that residents are aware not just of these changes

but of the act in general as knowledge is power particularly when it comes to exercising an

individuals’ rights. We would therefore ask there is a commitment to the ongoing funding of

education initiatives for BH residents and support services to deliver this education and information.

Licensing Operators

A licensing system has great appeal and we would welcome something similar being introduced in

NSW. There are two other Eastern seaboard states that are worth looking at that have employed

different systems around licensing:

Victoria:

Rooming House Operators Act 2016

The purpose of this Act is:

(a) to foster professionalism and reduce exploitative and undesirable practices within the rooming

house sector by—

(i) Establishing a licensing scheme for rooming house operators; and

(ii) ensuring that licences are only granted to persons who are fit and proper within the meaning of

the Act; and

(iii) holding licensed rooming house operators to account for their conduct and the conduct of

persons involved in the management or operation of their rooming houses; and

(iv) protecting the rights of rooming house residents; and

(b) to make consequential amendments to the Australian Consumer Law and Fair Trading Act 2012,

the Business Licensing Authority Act 1998, the Estate Agents Act 1980 and the Residential Tenancies

Act 1997.

Queensland

In Queensland the Residential Services (Accreditation) Act 2012 has the following definition:



A service is a residential service if—

(a) the main purpose of the service is to provide accommodation, in return for the payment

of rent, in 1 or more rooms; and

(b) the room or rooms are occupied, or available for occupation, in the course of the service

by at least 4 residents; and

(c) in the course of the service, each of the residents— (i) has a right to occupy 1 or more

rooms; and (ii) does not have a right to occupy the whole of the premises in which the rooms

are situated; and (iii) does not occupy a self-contained unit; and (iv) shares other rooms, or

facilities outside of the resident’s room.

(1) The object of this Act is to regulate the conduct of residential services to—

(a) protect the health, safety and basic freedoms of residents; and

b) encourage service providers to continually improve the way they conduct residential services; and

(c) support fair trading in the residential service industry.

(2) The object is to be achieved mainly by—

(a) establishing a registration system, under which a residential service is registered only if— (i) the

service provider and associates are suitable; and (ii) the premises in which the service is conducted

are safe and otherwise suitable; and

(b) establishing an accreditation system, under which a residential service is accredited to provide a

type of service only if that service is provided in a way that meets minimum standards.

The Queensland model is notable because:

• Only a fit and proper person can obtain a license to operate. This may be an option worthy of

consideration in NSW given the vulnerability of some residents in general boarding houses,

and the known rogue landlords who repeatedly breach their obligations.

• It has a three tiered model of registration:

1. accommodation only 2. accommodation and meals 3. accommodation, meals and services

• It recognises boarding house residents as a subset of generic private sector tenancies and has a mandated tenancy template

• The State undertook a focussed registration campaign. They provided a period of amnesty allowing time for people to act and register their BHs after the campaign, and after this period ended, they increased penalties for unregistered BHs

Supporting operators

Many Boarding house operators are aging and trying to do the best they can. They are housing some

of the poorest in the community, and those that although may be eligible for Housing NSW

accommodation or community housing cannot access social housing.



There are a few schemes in place to assist operators such as the Boarding House Financial Assistance

Program, and Fire Safety that provides grants of up to $60,000 to help owners and operators of

boarding houses undertake essential fire safety works.

We propose:

1. That consideration be given to introducing additional financial subsidies and forms of

assistance to enhance the viability of the sector, including financial incentives to increase

boarding house accommodation for people with a high risk of becoming homeless, such as

women 55 years and older and women escaping domestic violence. Or grants to improve the

quality of accommodation with basic facilities such as kitchens

2. A robust regulatory system which puts the poor and illegal operators out of business helps

the operators attempting to assist people who cannot access other forms of housing by

establishing a level playing field.

Vulnerable Female Residents

The sector is overwhelmingly male (see census and Fair Trading data). For women living in the boarding house sector there are serious concerns around safety and security. Male dominated boarding houses can be rowdy, showers and toilets can have ill-fitting locks (if any) and privacy compromised. We have seen some people can thrive and want to live in a boarding house environment, but how we can best encourage woman only spaces needs to be considered and encouraged across the sector. The significant gaps in the rights provident by occupancy agreements under the Act mean that residents still remain highly vulnerable and yet still heavily reliant on this type of housing as their only means of relatively affordable accommodation. The lack of clarity and security is particularly highlighted for women living in boarding houses who are significantly more at risk and vulnerable in this environment (Murray, 2009). For women living in mixed, boarding houses, the constant threat and fear of gendered and sexual violence as well as living in substandard accommodation can greatly affect their sense of safety and wellbeing (Sydney Women’s Homelessness Alliance, 2017).

The challenges of reform

Improving this sector requires making consequential amendments to other laws and planning

regulations. The Government were bold in being the first Government tackle this difficult issue and to

introduce a law to improve the rights of BH residents, which had been ignored for so long. They need

to be bold in taking the steps required to ‘getting it right

No doubt there will be claims from some sectors that increased regulation is increased red tape and

rents will rise and investors will flee. The same claims were made when the Residential Tenancies Act

was first introduced (and similar modest improvements to renters’ rights). These claims and scare

mongering should not stop Government from its role of protecting some of the most vulnerable in

the community.



References

Drake, G. (2018) Boarding Houses Act Evaluation: Final Report, Family and Community Services,

Sydney.

Eastgate, J., Hunter, J., & Wallace, H. (2011). Marginal Tenures–A National Picture. A policy paper on boarding houses, caravan parks and other marginal housing tenures. Canberra, National Shelter.

Hwang, S. W., Wilkins, R., Tjepkema, M., O’Campo, P. J., & Dunn, J. R. (2009). Mortality among residents of shelters, rooming houses, and hotels in Canada: 11-year follow-up study. Bmj, 339, b4036.

Martin, C. (2019) Boarding houses in New South Wales: growth, change and implications for equitable density A research report for Shelter NSW Shelter Brief No. 64. City Futures Research Centre. UNSW

Murray, S. (2009). Violence against women in mixed-gender rooming houses. Parity, 22(5), 15.

Sydney Women’s Homelessness Alliance. (2017). Older Women’s Studio Development Project: A Co-

Design Project to Inform Design Guidelines Suitable to the Housing Needs of Single Homeless Older

Women. Retrieved from https://www.homelessnessnsw.org.au/sites/homelessnessnsw/files/2017-

06/Older%20Women%27s%20Studio%20Housing%20Project-Web-Version.pdf

https://www.homelessnessnsw.org.au/sites/homelessnessnsw/files/2017-06/Older%20Women%27s%20Studio%20Housing%20Project-Web-Version.pdf

https://www.homelessnessnsw.org.au/sites/homelessnessnsw/files/2017-06/Older%20Women%27s%20Studio%20Housing%20Project-Web-Version.pdf

Submission to Statutory Review of Boarding Houses Act 2012

Documents

Transcript of Submission to Statutory Review of Boarding Houses Act 2012