Public housing tenants take on WA’s Housing Authority in Supreme Court in action which could end no ground evictions

A court has been told of the shocking circumstances a mum-of-four had to endure after her fixed-term tenancy was terminated by the housing department, leaving her unable to reunite with her children. The 29-year-old woman’s story was revealed in Western Australia’s Supreme Court after public housing tenants who were handed termination notices took on the Department of Communities’ Housing Authority. Two tenants launched legal action against the housing body, arguing it acted unlawfully. SCALES Community Legal Centre solicitor Kate Davis said the argument of legal unreasonableness was more about the impact on children in public housing. “One the tenants is a mum whose kids are in care, but the Housing Authority’s termination of her tenancy threatens the capacity for her kids to come back to her,” Ms Davis said outside court. “The argument is that is legally unreasonable and therefore unlawful.” Ms Davis said over the past decade they had seen a rise in the number of fixed term tenancies and no grounds terminations in public housing. “In the six years to June 2022, at least 3070 children were evicted from public housing,” she said. “Public housing evictions are devastating for children – it’s a pipeline out of education and into juvenile detention, child removal, health and mental health problems, and we have seen children die homeless. “Fixed term tenancies is the second leading cause of evictions from public housing. “Evictions from public housing are almost certainly evictions to homelessness.” The mum’s case involved her being advised by the Housing Authority that her fixed term tenancy would be terminated. Prior to entering her first tenancy agreement the mother’s children were put into the provisional care of the Department of Communities. After her first tenancy agreement expired, she had two officers show up at her house and advised her she needed to sign an extension of her tenancy agreement. The mother was not made aware she did not have to sign the form or could have requested a tenancy agreement that was not time limited. She was also sentenced for driving offences last year but was given parole after three months. Soon after she was advised her tenancy agreement would be terminated, with her lawyer Mr Albert arguing she was denied procedural fairness and the decision by the authority was legally unreasonable. “Without a home she does not get to be reunified with her children,” Mr Albert said in court. “There was no indication at all that matter was considered, let alone weighted prior to the termination decision. “The authority is clear where a decision maker fails to properly engage with something of importance, the decision can be found to be legally unreasonable.” Ms Davis said if the tenants win their case it would mean the Housing Authority would need to review its practices. “We hope in that rethink there would be a shift to better support services to sustain tenants as well to avoid evictions.” The other case involves Indigenous elder Barry Garlett, who is a public housing tenant in Perth. His lawyer Matthew Albert argued in court the Housing Authority had a duty to apply procedural fairness to a tenant before making a decision to terminate a fixed term tenancy. Mr Albert argued because Mr Garlett was denied procedural fairness making the termination invalid. A lawyer representing the Housing Authority said they were seeking an order from the court to terminate the agreements and to regain the premises that were being occupied by the tenants. A Department of Communities spokesperson said there were more than 66,000 people living across more than 32,000 public housing tenancies in WA, of which 877 were fixed term agreements. In the past decade there had been about 1200 evictions from public housing premises in Western Australia, the spokesperson said. “‘Without Grounds’ or ‘no-grounds’ is a limited legal term which does not mean there are not substantiated reasons for eviction to proceed,” the spokesperson said. “Termination action, including following the non-renewal of fixed term tenancies, is considered a measure of last resort, only to be taken to ensure the safety of the community, especially adjoining neighbours when all other efforts to preserve the tenancy have failed. “Without grounds terminations are rarely issued and are usually the outcome of significant community safety concerns where the tenant has failed to address or remedy these issues. “It is important to note that the decision to terminate a tenancy agreement ultimately sits with the Magistrate, who will only make an order for vacant possession if satisfied that there has been a breach of the tenancy agreement, and that the tenant has been given every opportunity to rectify the breach and has failed to do so. “In most cases, where engagement occurs, clients can remedy their termination notice. “Termination proceedings are only initiated when tenants repeatedly or egregiously fail to utilise all the opportunities provided to them to resolve tenancy concerns.”