VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST 	VCAT REFERENCE NO. R2023/10256 & R2023/11437
CATCHWORDS	
Application for possession by Homes Victoria on the grounds premises occupied without consent – subsequent application for creation of tenancy by resident – sections 344, 91S and 91T of the Residential Tenancies Act 1997 (Vic) –possession granted - creation of tenancy application dismissed.	

In proceeding R2023/10256		
APPLICANT	Homes Victoria	
RESPONDENT	Suzanne Bertram	
In proceeding R2023/11437		
APPLICANT	Suzanne Bertram	
RESPONDENT	Homes Victoria 	
WHERE HELD	Melbourne	
BEFORE	Member D Lucas	
HEARING TYPE	Hearing	
DATE OF HEARING	8 May 2023	
DATE OF ORDER	12 October 2023	
CITATION	Bertram v Homes Victoria (Residential Tenancies) [2023] VCAT 1160	

Order
R2023/10256
VCAT finds:
1.	The premises have been rented premises under a residential rental agreement within the period of 12 months before the date of the application.
2.	There are reasonable grounds for believing that the premises are occupied solely by a person (not being a renter under a residential rental agreement) who entered into or remained in occupation of the premises without licence or consent.
3.	The applicant is a person who is entitled to possession of the premises.
VCAT orders and directs:
1.	The applicant is entitled to a possession order.
2.	The principal registrar shall issue without delay, and without fee, a warrant of possession against all persons for the time being occupying the premises to be executed within 30 days after the date of issue.
R2023/11437
For the reasons provided in writing, the application is dismissed.

D. Lucas
Member			

APPEARANCES:	 	
For Suzanne Bertram	Ms J. Duffy, Justice Connect	
For Homes Victoria 	Ms R. Morgan and Ms A. Prigg	

REASONS FOR DECISION
Background:
1	In R2023/10256, on 3 April 2023 Homes Victoria, as a residential rental provider, applied to the Tribunal on under section 344 of the Residential Tenancies Act 1997 (Vic) (“the Act”), seeking orders of possession on the basis that the premises were occupied without their consent by Ms Susanne Bertram (“the occupant”). The application stated:
On 3 December 2010 Mary-Ann Bertram started a rental agreement with the Director of Housing (Director). On 19 January 2023 the renters rental agreement with the Director was terminated by agreement in accordance with s91C of the RTA. On 17 January 2023 Suzanne Bertram (the undeclared occupant) was advised she was residing at the Property without the Directors consent. The undeclared occupant remains in occupation of the Property without the consent of the Director. The Director brings this application under s344 of the RTA and seeks an order under s345 of the RTA for the Tribunal to make a possession order.
2	In R2023/11437, on 13 April 2023 the occupant in turn made her own application seeking orders requiring Homes Victoria to enter into a rental agreement with the occupant pursuant to section 91S of the Act. 
3	The premises relevant to the proceedings involve a two bedroom dwelling located in Warrnambool, owned and administered by Homes Victoria, as a state institution responsible for social housing. 
4	The following historical background provided in written submissions for the occupant relevantly involves the following:
a.	the occupant has never been named as a renter on any rental agreement associated with the premises; 
b.	the occupant’s mother resided in the premises as a renter on a rental agreement with Homes Victoria (then “Department of Housing”) from 3 December 2010 until the mother passed away in September 2022;
c.	over that 12 year period, the occupant’s only permanent address maintained during her many years working at sea in the fishing industry was this premises rented by her mother; 
d.	during 2020 the occupant moved into the premises to perform an ongoing role as her mother’s carer, until her mother’s passing on 5 September 2022; 
e.	the occupant had since been residing in the premises owned by Homes Victoria as her principal place of residence, the address of which is registered as her own address with Centrelink; 
f.	before her mother’s passing in September 2022, the occupant contributed $100 per month towards utilities, and since September 2022 she pays for utilities alone, although the bills remain in her late mother’s name; and
g.	the occupant has attempted to pay rent to Homes Victoria on two separate occasions since her mother’s passing by making physical payments at the relevant office for Homes Victoria in Warrnambool, although these rental payment attempts have been refused.
The parties’ arguments
5	It has been submitted on behalf of the occupant that she would suffer severe hardship if required to leave the premises, and that the hardship she would suffer would be considerably greater than any hardship that may be suffered by Homes Victoria if the order was made creating a rental agreement with the occupant. This submission is based upon:
a.	the occupant’s particular connection to the premises, where her mother had lived for over a decade and where her mother had recently passed away;
b.	The premises having been the occupant’s only ongoing and stable place of residence over the last decade, and her full-time residence in the premises from 2020 as her late mother’s primary carer until her mother’s passing in September 2022 and then continuing to the present; and
c.	the occupant’s pre-existing mental health concerns including historical substance and alcohol abuse issues; the close proximity of the premises to important medical and social supports for the occupant; her particular vulnerabilities and the risk of relapse if removed from her stable accommodation context.
6	The evidence of Homes Victoria at hearing was to the effect that:
a.	although they did not assess the occupant as eligible for transfer of lease in the current premises, they had assigned the occupant priority status for re-housing in 1-bedroom Homes Victoria accommodation in Warrnambool; 
b.	that the occupant had already been offered and had refused 4 alternative housing placements; 
c.	that by reference to her age being now over 55 years, the occupant qualified for single occupancy rental assignment in condominiums with the same general age demographic, as opposed to blocks accommodating public housing renters of all ages; 
d.	that Homes Victoria would assist with relocation logistics such as meeting removal costs and arranging for electricity connections; 
e.	Officers of Homes Victoria in attendance at hearing further confirmed that in view of the priority status afforded to the occupant by reference to her age, she was eligible for the choice between two alternative placements rather than only being offered one; and 
f.	It was further confirmed that under no circumstances would the occupant be removed from her current place of residence until the next alternative was entirely ready for immediate occupancy. On this basis, there was no risk of homelessness that would arise as a result of any order of possession made in favour of Homes Victoria
7	Homes Victoria confirmed their underpinning housing policy mandate is fundamentally utilitarian, in that it is aimed at delivering the greatest amount of benefit concerning housing outcomes to the greatest number of eligible Victorians. 
8	It was submitted on behalf of Homes Victoria that the waiting list they were required to administer was significant. It was agreed on the part of the occupant that the public housing waiting list existed, that it was large, and involved extensive waiting periods. 
9	In written submissions for the occupant, the Charter of Human Rights and Responsibilities 2006 (Vic) (“Charter”) was raised, insofar as it may apply to Homes Victoria’s decision to seek possession orders under section 344 of the Act (premises occupied without consent). Submissions in particular argued that this decision was incompatible with the occupant’s human right to a home under section 13(a) of the Charter.
10	It has been decided that the Tribunal has no jurisdiction to rule upon a challenge to the merits of a decision made by Homes Victoria and consequently the Tribunal here will make no findings in relation to the application of the Charter to the decision or antecedent conduct of Homes Victoria. 
11	In any event also, as expressed by the Tribunal at hearing, the Charter submissions appeared misconceived, as they were premised upon a risk of homelessness, where no such risk existed. This was so given the stated position of Homes Victoria – as accepted by the Tribunal – involving a commitment to direct transfer and relocation of the occupant from the current premises to a more suitable Homes Victoria property within Warrnambool. 
12	It was accepted on behalf of the occupant that in light of this, the Charter submissions concerning homelessness were no longer pursued. 
Medical Evidence submitted on behalf of the occupant
13	A letter dated 27 April 2023 from Dr T Slattery of Cambourne Clinic in Warrnambool confirms that the occupant had 
…acted as the primary career for her mother…at [the premises] in the years prior to her death on 5/9/2022.
14	A further report was provided dated 24 April 2023 from Dr Clare Mooney of WRAD Health Inc. (formerly Western Region Alcohol and Drug Centre Inc.). Relevantly, it states as follows:
[the occupant] has been a long standing patient at WRAD Health with recurrent mental health issues.
[the occupant] has recurrent symptoms of depression & has at times required medication. This has been aided since [the occupant] has been living with and caring for her mother.
Although [the occupant] was one of ten children, only five of them lived locally & [the occupant] was the residential carer.
Although she had been caring full time for her mother for many years, [the occupant]'s name was not on her mother's sixteen (sic.) year rental housing agreement.
After her mother died [the occupant] was informed that she was going to be evicted. So along with the grief and trauma of losing her mother with whom she had lived and cared for, for many years, [the occupant]'s mental health is being put under more stress by the eviction notice. As a result [the occupant] feels she is being harrassed & intimidated at a time when she struggles to leave the home even for grief counselling.
[the occupant] has been the person who has kept the home in [Warrnambool] clean and tidy, managed the garden & taking pride in caring for this property.
I would request that in these circumstances, after such a long period of time living in the family home that there should be exception made to support [the occupant] and not affect her mental well-being by evicting her, and forcing her into the quagmire of homelessness.
The application for creation of a rental agreement - R2023/11437
Legislative scheme - Creation of a residential rental agreement - sections 91S & 91T
15	The Act under section 91S(1) provides for an application to this Tribunal for orders requiring the creation of a residential rental agreement in circumstances involving the death of a sole renter as follows: 
(1)	A person who has been residing in rented premises as that person's principal place of residence and who is not a party to a residential rental agreement applying to those premises may apply to the Tribunal for an order requiring the residential rental provider of the premises to enter into a residential rental agreement with the person if—
*	*	*
(e) 	the renter has died and there is no surviving renter.
16	It is not in contention that the occupant satisfies section 91S(1)(e) of the Act following the death of her mother in September 2022. It is also not in contention that the occupant remains in the premises that had for some time many years previously been rented by her late mother. Indeed, the application for possession by Homes Victoria has been brought to this Tribunal and is maintained precisely on the basis that the occupant remains residing in the premises, albeit without the licence or consent of Homes Victoria. 
17	Having met the requirements under section 91S(1)(e) to apply for orders creating a rental agreement, the occupant is also required to satisfy each of the three conditions stipulated in section 91T(1) of the Act. It is only upon meeting section 91T(1)(a)-(c) of the Act cumulatively that the Tribunal’s discretion to make an order creating a new rental agreement becomes enlivened:
91T Order of Tribunal to enter into residential rental agreement
(1) 	The Tribunal may make an order requiring the residential rental provider to enter into a residential rental agreement with the applicant under section 91S if satisfied that—
(a)	the applicant could reasonably be expected to comply with the duties of a renter under a residential rental agreement to which this Act applies; and
(b)	the applicant would be likely to suffer severe hardship if the applicant were compelled to leave the premises; and
(c)	the hardship suffered by the applicant would be greater than any hardship that the residential rental provider would suffer if the order were made.
Capacity to comply with the duties of a renter - Section 91T(1)(a) of the Act
18	It is accepted by the Tribunal that the occupant has been residing in the premises rented by her mother periodically, although unofficially since 2010 at times when she was not at sea in her employment, that she resided at the premises on a full-time basis in the premises with her mother from 2020, and following her mother’s passing in September 2022 she has resided in the premises alone. There have been no complaints or concerns raised in relation to the condition of the premises or conduct of the occupant before or since the death of her mother, and Homes Victoria has made no submissions in relation to these duties of a renter.
19	One of the fundamental duties of a renter is the obligation to pay rent. It has been submitted on behalf of the occupant that she receives a regular income of approximately $280 - 300 per fortnight in the form of a Centrelink JobSeeker allowance and that she is comfortably able to meet relevant rental obligations to Homes Victoria for the property. She also gave evidence at hearing that she undertakes some employment. 
20	No issue has been taken by Homes Victoria in relation to this aspect of the criteria, and the Tribunal accepts that section 91T(1)(a) of the Act is met. 
Would the occupant suffer severe hardship if compelled to leave the rented premises? Section 91T(1)(b) of the Act
21	Forrest J in Cosic v Director of Housing (“Cosic”) - when considering an appeal of an application for the creation of tenancy under sections 232 and 233 of the Act as it stood prior to March 2021 (equivalent to the present section 91S) - stated that in considering hardship "that any appreciable detriment is relevant". The court then cited and affirmed the statement by Asprey J in F.G. O'Brien Ltd v Elliott:
There is no definition of 'hardship' in the Act. In its context I would be of the opinion that 'hardship' would comprehend any matter of appreciable detriment whether financial, personal, or otherwise. Each case must depend upon its own particular facts.
22	The legislation does not specifically define "severe” in the context of hardship. Ordinary usage of the meaning of severe includes circumstances having consequences such as ‘very great pain, difficulty, worry, damage etc.; very serious.’ Useful guidance on interpretation of the compound phrase “severe hardship” is found in this Tribunal’s decision in Director of Housing v Infinity Sic [2013] VCAT 2043, (which considered the previous section 233(1), the equivalent of the current section 91T(1) of the Act):
In one sense, the dislocation and disorientation occasioned by losing one’s accommodation will cause a person to suffer some form of hardship. That hardship will be emotional, it may be physical and it may create psychological hardship for some. [Section 233(1)] seems to recognise that an applicant will suffer some hardship if he or she were compelled to leave the premises. By way of reinforcement, it embeds adjectival emphasis by incorporating the word “severe” into the hardship that the applicant must show… In other words, the hardship must be proved to be severe and by “severe” the section means a high level of hardship.
23	The Tribunal accepts that removal from her present place of residence will present difficulties for the occupant, and the medical evidence concerning the occupant’s history of mental health concerns, historical substance/alcohol abuse, and her psychological connection to a premises that her mother had rented for many years, are important considerations which the Tribunal has carefully weighed. 
24	However, the Tribunal in this case makes clear findings that the occupant faces no risk of homelessness whatsoever, in view of the undertakings made by Homes Victoria concerning re-location of the occupant to a suitable single occupancy dwelling in an age-suitable demographic block. This is a matter not apparently contemplated in the 24 April 2023 WRAD letter that refers in its conclusion to any eviction forcing the occupant into the “quagmire of homelessness”. Whilst the Tribunal accepts that the WRAD Centre itself is particularly proximate to the premises currently occupied by the occupant, the evidence is that Homes Victoria have already identified several potentially suitable single person dwellings as alternatives for the occupant, all of which are still located within the town of Warrnambool. The Tribunal does not accept that by being relocated elsewhere within the same town to premises less proximate to the WRAD Centre would result in the occupant effectively losing access to such a service, even if public transport became necessary to facilitate ongoing access. 
25	Whilst sympathetic to the occupant in her personal connections to the premises previously rented from Homes Victoria by her late mother, and whilst accepting that the totality of her circumstances including these and her other pre-existing mental health concerns may cause her some hardship, being mindful that no risk of homelessness arises, the Tribunal is not satisfied that any potential hardship faced by the occupant, if forced to leave the premises, would be likely to amount to a hardship that is capable of being objectively characterised as severe, for the purposes of section 91T(1)(b) of the Act.
Comparative hardship
Section 91T(1)(c) of the Act
26	In view of its findings above that the occupant will not be likely to face “severe hardship” if compelled to leave the rented premises, and given that the requirements of section 91T(1) are cumulative, it is not strictly necessary for the Tribunal to separately weigh whether any hardship the occupant may face if possession if ordered would be greater than the comparative hardship Homes Victoria would face if the occupant retained possession of the premises. 
27	However, for the sake of completeness the Tribunal will consider the comparative hardship question in section 91T(1)(c) of the Act, as this would form an independent and alternative basis for finding that the occupant fails to meet all of the three cumulative criteria in section 91T(1) of the Act.
28	Justice Forrest held in Cosic, cited above, that any interference in the administration of the waiting lists of the Director of Housing would be a detriment which would constitute hardship. Cosic is good authority for the relevance of, and need to consider, the impact on Homes Victoria’s management of the waiting list in the allocation of public housing. It is well accepted that Homes Victoria can suffer “hardship” as a result of any impact on the waiting list that may occur. The Tribunal accepts Cosic as authority for the proposition that it is the hardship of Homes Victoria in the management of the public housing waiting list, and not the hardship of those who happen to be on the waiting list, which are to be the subject of comparison with the hardship of applicants such as the occupant.
29	The Tribunal accepts that in its administration of the public housing waiting list, Homes Victoria faces a detriment where a single occupant may take up accommodation with two bedrooms that is otherwise intended and designed for at least two persons, and that such a circumstance is logically contrary to prevailing departmental policy concerning access to two bedroom accommodation. 
30	In balancing competing hardships, the Tribunal is mindful of the observations made by Emerton J. in the Supreme Court case of Giotopoulos v Director of Housing (“Giotopoulos”), where it was noted that
There will plainly be levels or types of hardship that will justify disruption to the orderly administration of the waiting lists. 
31	The Tribunal considers that this balancing consideration would be influenced by a circumstance where the occupant faced any appreciable risk of homelessness as the result of a possession order. The Tribunal has found on the basis of Homes Victoria’s evidence that there is no such risk of homelessness in the occupant’s circumstances, and the Tribunal accepts that efforts have been undertaken on the part of Homes Victoria to rehouse the occupant notwithstanding that the occupant is not presently a renter with Homes Victoria, nor recognised as having resident rights (such as may accrue under policy after a period of 12 months declared occupancy), nor even apparently the occupant being on any public housing waiting list herself. In this regard, it appears that the occupant’s age demographic (over 55 years) has itself brought her within a separate policy for priority in public housing allocation. the occupant will not face homelessness, simply a different home, in the same town, designed for single as opposed for dual occupancy. 
32	Written submissions for the occupant concede that to create a tenancy in favour of the occupant would be inconsistent with the Homes Victoria’s policy concerning access to two bedroom accommodation, but that policy alone is insufficient to satisfy the Tribunal that the hardship faced by Homes Victoria is greater than the hardship faced by the occupant. 
33	In the important weighing exercise of comparative hardship, each of the hardship factors and likely detriment for the occupant must be carefully considered by the Tribunal, inclusive of her historical and familial connections to the premises; her pre-existing mental health condition and substance dependency history. As Cosic clearly establishes, so too must the Tribunal weigh the administration of the public housing waiting list by Homes Victoria as a relevant consideration. The detriment that may flow to Homes Victoria’s capacity to perform one of its prime statutory mandates, where one person may occupy a premises capable of accommodating more than one person, is not theoretical, nor abstract, despite it not being referable to hardship in any direct or personal sense. As noted above, it is not contested and the Tribunal finds that the public housing waiting list is well-documented, is contemporary and is objectively substantial, as are associated waiting periods for eligible persons on that waiting list. 
34	Per the authority in Cosic, the adverse impact on the administration of the public housing waiting list - of which associated policy is only one part - is a concrete detriment, and therefore a legitimate part of the Tribunal’s task of weighing competing hardships. 
35	When all of the circumstances are taken into account concerning the occupant, the Tribunal is not satisfied that this is such a case contemplated by Emerton J Giotopoulos – the Tribunal is not satisfied here that the level of hardship that may be experienced by the occupant if a possession order were made justifies the disruption to the waiting lists administered by Homes Victoria that would result in an order for possession not being made. 
Conclusions regarding Creation Application R2023/11437 – the occupant’s application requiring Homes Victoria to enter into a rental agreement
36	After careful consideration, the application made by the occupant on 13 April 2023 is dismissed. 
Possession Application R2023/10256 – Homes Victoria’s application for possession on grounds the premises are occupied without licence or consent
37	The Act in Division 3—Recovery of possession of rented premises where occupied without consent provides as follows:
344 Application for possession order if premises occupied without consent 
(1)	A person who claims to be entitled to the possession of premises may apply to the Tribunal for a possession order if—
(a)	the premises have been rented premises under a residential rental agreement at any time within the period of 12 months before the date of the application; and 
(b) 	the applicant alleges that the premises are occupied solely by a person (not being a renter under a residential rental agreement) who entered into or remained in occupation without the applicant's licence or consent or that of any predecessor in title of the applicant.
38	It is not disputed that on 17 January 2023 Homes Victoria gave the occupant written advice that she was occupying the premises without licence or consent. Such consent has not since been forthcoming, and all attempts on the part of the occupant to pay rent on the premises have been refused. 
39	For the reasons above, the Tribunal has now refused the occupant’s separate application to require the creation of a rental agreement between the occupant and Homes Victoria in relation to the premises. 
40	The application to VCAT was made by Homes Victoria on 3 April 2023, a period within 12 months of the premises having been rented by the occupant’s late mother. 
41	The premises remain occupied by the occupant.
42	Homes Victoria as an applicant under section 344 of the Act is entitled to possession of the premises in question. There are reasonable grounds for believing that the premises are occupied by the occupant without the licence or consent of Homes Victoria, and indeed this matter is not in dispute. 
43	Under section 345 of the Act, in such circumstances, the making of a possession order is mandatory – “the Tribunal must make an order of possession” (emphasis added). 
44	Section 346 provides that a possession order for these purposes must either direct the principal registrar to issue a warrant of possession (section 345(a)) or alternatively that a show-cause notice in the prescribed form be served on all occupants of the premises (section 346(b)).
45	As under section 349 of the Act, a show-cause hearing is only provided to establish whether the applicant Homes Victoria is entitled to possession, and the right to possession has already been established, orders will be made for the immediate issue of a warrant according to section 346(a). In accordance with section 351 of the Act, the warrant must be executed within a period of 30 days from the date of issue of the warrant. 
Conclusions overall
46	The occupant is not entitled to have a rental agreement created between her and Homes Victoria related to the premises in the same terms and conditions as the tenancy agreement with the previous renter, being her late mother. 
47	The Tribunal is sympathetic to the circumstances of the occupant, and it is accepted without question that she will face hardship as a result of being forced to leave her current premises. However, the legislation requires a finding that such hardship would likely be severe, and on careful consideration of all of the circumstances, the Tribunal cannot make that finding. 
48	Separately, the Tribunal is not persuaded that the hardship the occupant would suffer would be greater than the hardship Homes Victoria would suffer if the Creation Application was successful and such an order was made.  
49	Accordingly, the occupant’s application must be dismissed.
50	Homes Victoria is in turn entitled to possession of the rented premises under section 344 of the Act. Section 346 of the Act provides that a possession order under Division 3 of Part 7 (which relates to recovery of possession where rented premises are occupied without consent) must direct the principal registrar to issue without delay a warrant of possession against all persons for the time being occupying the rented premises. 
51	Accordingly, the Tribunal has no discretion to delay the execution of the warrant in this matter but will allow 30 days for the warrant to be executed, so that arrangements can be put in place with Homes Victoria for the relocation of the occupant to one of the alternative places of accommodation identified as suitable.
52	Accordingly, VCAT has made the orders set out at the commencement of these reasons.

D. Lucas
Member