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Q: Can one house accommodate a combination of SDA residency agreements and residential rental agreements in Victoria?

No. Under the Victorian Residential Tenancies Act 1997 (RTA), there can only be one form of lease agreement in place in a dwelling at any given time i.e. Either the SDA Residency Agreement or the Residential Rental Agreement. The SDA Residency Agreement under Part 12A of the RTA provides strengthened protections specifically designed for people with disability living in SDA enrolled dwellings. The Residential Rental Agreement under Part 2 of the RTA provides for medium-or longer-term tenures, and provides mainstream rental protections for the broader private and government rental sectors, however, provides a lesser level of protection for people in disability residential settings.

Q: What should you do if someone’s application for SDA has been rejected due to ineligibility, but their intellectual disability compromises their capacity to independently sign a rental agreement?

This issue points to concerns with the existing lease agreement options and their applicability or otherwise to individuals living in SDA settings. The SDA Residency Agreement was designed to provide strengthened protections for people with disability living in group or individual rental settings and currently ties eligibility to SDA funding eligibility under the NDIS. NDS continues to advocate to government to amend the RTA to enable all people with disability access to appropriate tenancy protections. It is noted that Easy English agreements and information statements can now be found on the Resources for SDA providers - Consumer Affairs Victoria webpage

Q: How should SDA providers manage multiple services entering the property?

Under the NDIS the provision of Supported Independent Living (SIL) and SDA services has been separated. This separation of functions aims to improve the choice and control of SDA residents by enabling them to choose who provides their housing and who provides their support. It is critical that SDA and SIL providers enter into collaborative agreements for how they will work together in supporting residents, and to agree on and document roles and responsibilities in relation to supporting individual residents and households more broadly. This is particularly important for managing multiple support arrangements in a household.

Q: Should SIL providers pay occupancy fees?

No. The On-site Overnight Assistance (OOA) is funded through the NDIS Participant’s plan to the SDA provider. Hence, the SIL provider must not be requested to pay rent or other expenses relevant to occupancy of an SDA enrolled dwelling.

Q: Can a resident of a supported residential service (SRS) use their NDIS funds to contribute to their rent/fees payable to the SRS?

NDIS participants are responsible for their day-to-day living costs including rent, groceries etc. There are some limited circumstances where the NDIS may make a contribution to these costs. See the NDIA Home and Living Supports and Services webpage for more information.

Q: What are the implications for SIL Providers being gazetted under the Disability Act? Are there audits under both the DFFH Standards and the NDIS Commission Standards? 

In 2019 many Victorian disability houses were re-gazetted by the Victorian government under the Disability Act 2006 in response to issues with the residential lease options available to Supported Independent Living (SIL) funded residents in Victoria. This has meant that some SIL providers are subject to the regulatory requirements of the Disability Act 2006 in addition to the requirements of the national Quality and Safeguarding Framework. This means that such organisations are subject to independent audits under the NDIS Quality and Safeguards Commission if they are NDIS registered as well as audits under the Human Services Standards.  SIL providers operating in non-government owned properties may choose to withdraw from gazettal, but this may result in their residents receiving fewer residential protections. 

NDS has expressed concern about the duplicative nature of this requirement in its advocacy with the state government. 

Q: How well aligned are the requirements of the classification of buildings under the Building and Construction Code, the SDA Design Standard and the AS 1428.1 Australian Disability Standard? 

The requirements relating to classification of buildings under the National Construction Code (NCC) do not appear to be well aligned to the SDA Design Standards. It also appears that some disability quality auditors are not focused on the NCC requirements. This is resulting in differing advice in the marketplace, leading to confusion about building requirements, and specifically whether all disability accommodation needs to be built to Class 3 in the NCC. In the NDS submission in response to Homes Victoria’s Ten-Year Social and Affordable Housing Strategy we recommended that government implement robust governance arrangements to ensure alignment of State and Federal building legislation and requirements. 

Q: When unrelated people reside in a dwelling and require assistance to evacuate is there a requirement for the building to be Class 3 under the National Construction Code?  

Under the DHS Government’s Capital Development Guidelines (2017), the building regulations require all buildings, regardless of age, to be classified in accordance with the Building Code Australia (BCA) - Class 3 (sub-group [d]) accommodation for the aged, children or people with disabilities. This has an impact on expected fire safety requirement, as Class 3 has more stringent requirements (e.g. sprinklers installed, etc.) than lower Class buildings.  

Q. Can a rental property be used to provide accommodation for groups of people with disability? 

NDS understands that if providing accommodation for two or more unrelated people with disabilities who need sleepover support, a Class 3 dwelling is required in Victoria. Strict interpretation of this requirement indicates that providers are unlikely to be able to use rental accommodation to house such residents, as such dwellings are unlikely to meet Class 3 dwelling requirements, and would be costly to adapt to Class 3 level.  

It is noted that there are multiple cases of providers renting dwellings for temporary purposes in relation to individuals with disability. Given the limited availability of suitable Class 3 dwellings for such purposes, DFFH has advised that rental accommodation for individuals that is assessed as safe and suitably appointed has been considered acceptable for shorter term arrangements, and where suitably classified dwellings are unavailable at a given point in time. 

DFFH has emphasised that private rental accommodation is not appropriate for medium- and longer-term disability housing, given the mandatory Class 3 requirement. 

Q: How do we resolve the issue of multiple SDA vacancies due to NDIS participants not receiving SDA in their plans? 

NDS and DFFH both continues to advocate to the NDIA regarding issues of access to SDA funding. For residents of existing non-government owned group homes and legacy dwellings who have yet to access SDA funding, providers are strongly encouraged to continue to advocate to the NDIA on behalf of their residents. 

Q: Are properties with TAC funded clients or others without SDA funding able to cease being gazetted under the Disability Act? 

SDA providers can choose to have their properties gazetted under the Disability Act, as this provides higher tenancy protections for houses which are not able to receive an SDA lease under the Residency Tenancies Act (RTA), or may choose to not have the property gazetted. The government as an SDA provider has decided to continue with gazettal status for all its properties not subject to SDA leases. 

Q: What rights does an SDA provider have to evacuate a resident living in their SDA dwelling who is COVID-19 positive, both in Disability Act gazetted properties and under an SDA lease?  

Under the Residential Tenancies Act 1997, an SDA provider may give an SDA resident written notice of temporary relocation from an SDA enrolled dwelling, however, it is our understanding that a ‘Notice of Temporary Relocation’ is not the appropriate course of action to be used if a resident tests COVID-19 positive. Under these circumstances, the resident and any close contacts are required to follow public health directions to either isolate or quarantine in their own homes or hotel quarantine. 

NDS has identified this as a pressing issue requiring urgent consideration by the sector and government, particularly now that we are aware of aerosol transmission and the Delta strain of the virus. We are currently engaging with providers and government on this issue.

If you have a question about Specialist Disability Accommodation, please visit the NDS Helpdesk.

Questions posted to the Helpdesk are triaged to the staff member with the appropriate expertise and we aim to respond within 72 business hours.