Re-gazettal of Victorian residential services regardless of SDA enrolment
This information is relevant to me because:
- I operate a new or existing residential service that will not be SDA but supports people with disability who cannot independently understand and sign a residential tenancies agreement under the Residential Tenancies Act 1997 (RTA).
- I am a SIL provider delivering service in properties which were previously registered under the Disability Act 2006 and where residential statements are in place.
- I am an SDA provider.
Victorian group homes are gazetted under the Disability Act, which provides residential protections under residential statements. Group homes will be automatically de-gazetted on 1 January 2020 when, until recently, it was anticipated that all residents and properties would be ready to transition to SDA.
Transition to SDA and protection of right under Part 12A of the RTA is dependent on two factors:
- Properties are SDA enrolled dwellings.
- All residents have SDA in their plans or are Continuity of Support (COS) clients.
It is now known that many residents will not be ready to transition by 1 January 2020.
To ensure residential rights are protected for existing residents and new residents who are waiting to transition to SDA after 1 January 2020, properties will be re-gazetted as group homes under the Disability Act and existing residential statements for residents will remain valid.
This is a short-term measure while access to SDA and other impacting matters can be resolved between the NDIA, DHHS and providers.
Re-gazettal will mean that providers will continue to operate under the Disability Act rather than moving residency arrangements under the RTA, and residents’ rights will continue to be protected under residential statements. Providers will also retain their Disability Act registration.
Part 2 tenancy agreements
Existing and new disability service providers who will not be enrolling dwellings as SDA, may enter into residential tenancy agreements, where mutually agreed with residents, under Part 2 of the Residential Tenancies Act 1997 (RTA).
If residents cannot independently understand, enter into and sign a residential tenancies agreement, that form of agreement is not appropriate and will be invalid for those residents.
As a standard Part 2 residential tenancies agreement will not be appropriate for many residents, those residents who are not yet able to transition to SDA will need continued protections under the Disability Act while access to SDA and other impacting matters can be resolved.
Request for information
The Department of Health and Human Services (DHHS) is requesting providers of residential services that have not formerly gazetted properties before and/or have yet to transition to SDA, to contact them to discuss gazettal of these services or the re-gazettal of existing arrangements in place.
I am an SDA provider. Do I need to gazette/re-gazette my properties?
Re-gazettal may not be required in the event that:
- an SDA provider is registered;
- an SDA provider has successfully enrolled the dwellings as SDA;
- all residents have SDA in their plan;
- SDA providers and residents have entered into or established SDA residency agreements under Part 12A of the RTA; or
- SDA providers and residents have entered into a residential tenancies agreement under Part 2 of the RTA where all residents have mutually agreed and can independently understand and sign that agreement.
Can we create our own or use another type of agreement?
No. Providers cannot create their own or use a different type of agreement - for example, a rooming house agreement - because of similar implications as above and others.
If appropriate, can we still claim the SDA payment?
Yes, the re-gazettal will not affect SDA payments.
Can we de-gazette at any time?
Yes. The re-gazettal is an administrative process which will ensure protections for both the participant and the provider. Once SDA transition issues have been resolved for your property, for example all participants have SDA included in their plan, the SDA provider can enter into or establish the appropriate CAV agreement and then apply for de-gazettal. Once this occurs, the provider would then be operating under the RTA.
What do I need to do?
NDS recommends that all providers operating a residential service, SDA, SIL or otherwise, contact DHHS as a matter of priority to discuss their particular situation. DHHS will advise case-by-case whether re-gazettal is required in order to maintain appropriate tenant safeguards and organisational compliance.
Who do I contact?