SDA in Victoria: Re-gazettal further information
Over recent weeks, as organisations have started preparing for implementation of tenancy lease changes arising from new Victorian legislation, a number of issues and queries have arisen, in part reflecting the complexity and variability of circumstances relating to housing for people with disability in Victoria.
In response to some of these concerns, DHHS has opened applications for the re-gazettal of Victorian group homes back under the Disability Act 2006 to ensure residential rights are protected after 1 Jan 2020. This is open to government and non-government owned dwellings and is a short-term arrangement while NDIS access issues and other factors are resolved.
This update provides background information on this complex issue and insight as to why re-gazettal may be an appropriate action for some residential service providers. NDS has received a number of questions concerning the re-gazettal and the operational and organisational implications, and is currently seeking further clarification from DHHS.
Key issues raised by NDS members:
- Delays in NDIS processing impacting people who are eligible for SDA but are yet to receive funding in their plan.
- SDA allocated inconsistently in first and subsequent plans.
- The Residential Tenancies Act Part 12 A assumes all SDA participants live together and does not allow for SDA participants to live with people who are not SDA eligible, without forgoing the extra protections they are entitled to as SDA eligible participants.
- The Residential Tenancies Act Part 2 standard agreement is not appropriate for unrelated people living together where all tenants are equally responsible for the entire dwelling.
- The Residential Tenancies Act Part 2 assumes that all people who are not SDA can independently enter into an agreement, and does not offer appropriate protections.
- Residential protections for some people with disability who are not eligible for SDA, but who may require greater protections than provided by the standard RTA lease.
Under 2019 Victorian legislative changes, Specialist Disability Accommodation (SDA) was removed from the Disability Act and included in the Residential Tenancies Act under Part 12 A. SDA providers were given six months to change from the lease type requirements of the Disability Act (a residential statement) to the requirements of the Residential Tenancies Act. The six-month transition ends on 1 January 2020, when all existing residential statements become void.
If an SDA provider has not entered into or established an appropriate agreement with their residents to meet the requirements of the Residential Tenancies Act by 1 Jan 2020 when existing residential statements become void, those residents will no longer have protections under the Disability Act nor the Residential Tenancies Act.
Definition of an SDA resident
An SDA resident is “(a) a person who is an SDA recipient; or (b) a person who is a CoS supported accommodation client”. Where a Commonwealth-supported CoS client is living in an SDA enrolled dwelling, the provider is able to enter into or establish an SDA agreement with this person.
Lease type per dwelling
A single SDA enrolled dwelling cannot have SDA residency agreements and standard tenancy agreements ‘under the one roof’:
- Tenancy agreements under Part 2 of the RTA are agreements that are made for the occupation of a whole dwelling, where no exclusive occupancy of individual rooms exists.
- SDA residency agreements under Part 12A of the RTA, as for rooming house agreements, enable exclusive occupancy of individual residents of a room, with shared access to common areas of the dwelling with other residents.
- Tenancy agreements can not legally exist in a dwelling where SDA agreements are in place. Similarly, SDA residency agreements cannot exist where a tenancy agreement for the whole dwelling is in place.
Lease type implications
If a shared SDA dwelling has, for example, one person who is waiting for SDA, or who is not SDA eligible, the provider:
- can not offer that participant an SDA agreement because legally they do not yet have SDA in their plan, or they are not eligible for SDA;
- can not offer that participant a Part 2 standard residential tenancies agreement unless all other people in the dwelling also forgo the SDA agreement and have the standard agreement; and
- can not offer the standard agreement to an individual who cannot independently understand their rights and sign the agreement on their own behalf. If providers offer Part 2 agreements and residents are unable to understand their rights and sign, the agreements will not be legally valid.
Contact DHHS if you think the above implications are relevant to your properties. Re-gazettal applications close on 30 November 2019. Email Jessie Webb at or call 9096 8284, or call Patrice Evans on 9096 9141.
NDS will continue to monitor tenancy protections and lease arrangements for SDA and SIL participants, and welcomes feedback from members.