Further, when you look at the Act itself and the construction of the Act and the history of the Act and it was never envisaged that a Social Housing tenant would be treated differently than a mainstream tenant and as recently as say 2016 ....it even says in [an explanatory statement[10]], "Give the tenant a mainstream experience." It would be discriminatory to treat them otherwise

[The tenant] was afforded an opportunity. He was eligible for housing. He is no longer eligible for a rental rebate. He is not in the same position he was when he was accepted. He is financially capable of going into the private market because he's at a market rate as is his daughter. That's share-housing. Nobody is entitled to have their own home. Thousands of people in Canberra share-house especially people who have children 23 years old.[11]

1. The Commissioner's representative also make reference to the 'thousands of people' on the wait list for public housing: "people from CALD backgrounds, escaping abuse, they have a lot of problems, that pay their rent, that could be good tenants and we want to make stock available for them and [the tenant] has abused that trust."[12]
2. The CCL lawyer's submissions focused on the 'painful' personal circumstances that the tenant had experienced during his life. She asserted that:

There are several traumas and personal crises that have contributed to his mental illness some of which are disclosed in [the tenant's] witness statement. Others that are too painful to bring up in a forum such as this without the risk of retraumatising [the tenant] and it wouldn't be safe to do that.[13]

1. These kind of vague assertions and associated submissions leave the Tribunal in a very difficult position, and I say more on that below.[14]
2. Moreover, the CCL lawyer's also submissions included assertions about the consequences of a medical condition - depression. There was no credible expert or other evidence of either the existence of the condition or the consequences of it before the Tribunal[15]. The medical evidence consisted of referral to a psychologist and associated 'GP Mental Health Plan' prepared by a general practitioner on 27 July 2017. The document stated that the tenant had suffered depression and anxiety since 2007 and requested that he psychotherapy and counselling. On this basis, the CCL lawyer submitted:

One does not have to be an expert in psychology to understand that a history of childhood abuse and trauma leaves its scars on a person's psyche well into adulthood and when stress piles up and other painful or stressful experiences occur such as a relationship or such as relationship break-ups, as [the tenant] has experienced, that person can plunge into a depressive episode and depression depletes that person's capacity to cope and to carry on a normal life. That person often copes by avoidance and withdrawal just to stay "safe".

1. While such statements may well be true at a general level, they did little to assist the Tribunal understand this particular tenant's circumstances, let alone assist with the assessment of the factors in section 49(4).
2. The tenant gave some evidence, informally, that he had recommenced antidepressant medication, "for less than a week"[16] and that he had an appointment to see Everyman.[17] Much of the rest of the information about his situation was advanced from the bar table by the CCL lawyer rather than him. It was vague in parts, although I acknowledge that was largely due to the CCL lawyer's concern to not re-traumatise her client. The information did not sufficiently explain how the tenant had fallen into arrears, or what had changed such that he would now be able to pay the rent and arrears, when previously he could or did not.
3. Consequently, the Tribunal adjourned the matter until 28 September 2017 to enable the tenant to:
   • (a) demonstrate a capacity to pay rent;
   • (b) make a contribution to arrears;
   • (c) demonstrate that his daughter and co-resident could and would pay rent; and
   • (d) produce evidence as to the medical condition that resulted in him being unable to pay rent or engage of the respondent and what has changed.
4. The Tribunal did not set a timeframe for the filing of additional evidence, the consequences of which are also discussed below.
5. I also note here that when requested to provide further medical evidence, the CCL lawyer questioned whether it was "...reasonably necessary to put on evidence and to mount arguments about causal links for a residential tenancy matter to the level that ... one would in a personal injury type case, tort case..."[18] I will also address this concern further below.[19]
6. Late in the evening of 26 September 2017 CCL filed and served a range of additional documents in support of the tenant's case. This evidence included payslips, Care Financial documents and other evidence of income and medical certificates and other reports from health care professionals. The covering email stated that CCL law had obtained a psychological report for the tenant, and that CCL would file that report with the Tribunal, but would not serve it on the respondent until further direction of the Tribunal. The approach was said to be similar to an approach taken the Tribunal in a previous, similar matter.
7. On 27 September 2017 - that is, the day before the hearing - CCL filed a psychological assessment prepared by Ms Alicia Morris, a forensic psychologist at Forensic Psychology Canberra (the report). The report was dated 12 September 2017. It was filed in an envelope marked "confidential", and it was apparent from the covering letter that it was not served on the Commissioner.
8. The filing of the report in a confidential envelope, for the consideration of the member at first instance, is not a practice in relation to which I have any particular concern. In most cases, there would be time for the case-managing member to review the report and make the necessary directions. However, the last-minute submission of the report in this case meant that was not possible to make such directions, and the Commissioner's representative only received a copy of the report on 28 September 2017, the day of the third hearing (third hearing). He read it in the waiting room before entering the hearing.
9. Having read the medical report prior to the third hearing, at the commencement of that hearing, I made an order under section 39 of the ACAT Act that hearing be in private. I noted that in the event that reasons needed to be published, the decision would be anonymised.
10. At the third hearing, on 28 September 2017, the tenant gave evidence and was cross-examined. Neither the tenant's daughter, nor Ms Morris, were available for cross-examination. I admitted the report into evidence, over the respondent's objections, for reasons set out below.
11. At the conclusion of this hearing I made a CTPO rather than a TPO.

1. My findings on the facts, whether contested or not, are set out below.
2. On 20 July 2000 the parties entered into a residential tenancy agreement with the tenant in respect to a property in Belconnen (the premises). The tenant had resided at the premises, with his daughter, since that date. That is, the tenant had resided at the property for 17 years.[20]
3. Prior to these proceedings, the tenant had never been before the Tribunal for any residency-related matter.
4. The tenant is a single man in his early 40s. He has experienced a range of moderate mental health issues over the past decade and has few social supports.
5. The tenant is very attached to his daughter. He raised her, as a single parent, since she was a small child. She is now an adult in her early twenties. She continues to reside at the premises and they share the care of two dogs. The tenant is strongly attached to both his dogs, and he was very concerned about what would happen to them were he evicted. Both his daughter and his dogs provide him with psychological strength and support.
6. For the vast majority of his tenancy, the tenant paid rent more or less regularly, until things started to go awry in February 2016 when his rent payments suddenly fell behind. The Commissioner did not immediately seek eviction, or a Tribunal order, but rather commenced a series of interventions intended to get the respondent back on track with his rent. I accept that these interventions were extensive, and that officers within the Commissioner's office did their best to try to get the tenant back on track. No criticism should be made of these efforts. I also accept that the tenant did not truly engage with Housing during this periods, despite being given every opportunity to do so.
7. It is useful to briefly outline this process, so that there can be little doubt that Housing personnel genuinely pursued every reasonable avenue to assist the tenant.
8. The Commissioner acted promptly when the tenant first fell into significant arrears in early 2016. On 11 February 2016 the Commissioner sent the tenant an 'arrears notification" which advised him that he was required to pay rent of $255.60 every fortnight, that as at 6 February 2016, his account was in arrears, and that to bring the account up to balance he was required to pay $894.60 by 19 February 2016. In the letter, the Commissioner encouraged the tenant to make an appointment with his housing manager. The letter also provided contact details for Care Financial Counselling (Care Financial), which was described as an "independent and confidential service" that "assists people in financial difficulty to explore their financial options in a supportive and non-judgmental manner."
9. On 25 February 2016 the Commissioner served the first notice to remedy. The notice stated that the tenant was, as at 20 February 2016, $639.00 in debit, and that to be two weeks in advance he was required to pay an additional $255.60. The notice advised that if the arrears were not paid, a notice to vacate may be issued. The notice also repeated the advice about contacting his housing manager and Care Financial.
10. On 3 May 2016, the Commissioner issued the tenant with a notice to vacate requiring that the property be vacated by 19 May 2016. The reason cited was that the tenant was in arrears by $894.60 as at 30 April 2016.
11. It appears that after the notice to vacate was served, the tenant made some payments, and he was (albeit briefly) in credit by 8 May 2016, although he at no time paid two weeks in advance.
12. On 29 June 2016 the Commissioner issued a further arrears notice, requiring payment of $761.40 by 8 July 2016. In that letter, the tenant was advised that if he did not contact his housing manager by 8 July 2016, legal action may commence.
13. A further letter, with the same notation, was sent on 19 July 2018. By this time, the arrears were $1778.00. The letter also noted that the fortnightly rent had increased to $700, presumably as a consequence of a reduction to his rebate. It appears from the rental ledger that the tenant attempted to make regular payments of the $700 rent in July and August 2016, but that the transactions failed. From this time, the arrears started to accumulate quickly.
14. On 8 August 2016 the Commissioner sent the tenant a letter stating that he was now $2828.00 in arrears, and advising him of the time and date of a scheduled meeting with his housing manager. He was warned that a notice to vacate may be issued and legal action taken unless he attended the appointment. Nonetheless, the tenant failed to attend the appointment. The tenant's evidence was that he was unaware of the appointment.[21]
15. On 18 August 2016 the Commissioner sent the tenant yet another letter, this one advising him that, as he had missed an appointment with his housing manager, legal action would now be taken. A further notice to remedy was sent the same day, this one stating that the tenant was $1778.00 in debt, and that to bring his account up to date he would need to pay $2478.00. Again, the tenant was advised to contact his housing manager and Care Financial.
16. On 2 September 2016 the Commissioner served the respondent with a further notice to vacate by 21 September 2016. The notice stated that if the tenant did not vacate by that date, the Commissioner would apply to the Tribunal for a termination and possession order.
17. Following this, the tenant finally made contact with Housing, and entered into an arrears agreement dated 7 September 2016. The agreement cited rent arrears of $1911.60 and set out a payment plan, including instalments of $30 per fortnight. The tenant appears to have complied with the agreement for some weeks, but then compliance began to lapse, with numerous purported payments made being declined or reversed. Significant arrears once again began to accumulate quickly.
18. The Commissioner took several steps to engage with the tenant. For example, his housing manager texted him on 20 October 2017 to advise of the failed payment of 9 October 2016.
19. By way of letter dated 21 November 2016 Housing advising the tenant that his matter had been referred to the Housing Assistance and Tenancy Review Panel (HATRAP). The letter advised him to lodge any additional information with a housing officer, located at Centrelink at Tuggeranong, by Thursday 1 December 2016. The tenant's property is in Belconnen.
20. The tenant's housing manager attended his property on 19 December 2016. When he did not answer, she left a calling card and a message to call her as he was paying full market rent and his rent debt was increasing.
21. On 23 December 2016, Housing sent a letter to the Tenant advising that:

The panel noted your willingness to sustain your tenancy by engaging with Housing ACT staff and also making rent payments. We have recommended that your tenancy if referred back to Tenancy Operations for close managing and engagement. During that time if you do not engage with Housing ACT staff or fail to keep your rent account up to date, the matter may be referred back to Operation Services for consideration.

1. The same letter set out contact information for Care Financial and CCL, as well as for the HATRAP contact officer.
2. On 17 February 2017 the tenant's housing manager again attended his premises for a home visit. The tenant was not in attendance, but she left a message advising him to make urgent contact as a notice to vacate would be issued the next week. Another such message was left on 1 March 2017.
3. On 6 March 2017 the Commissioner served the tenant with another notice to vacate. As at that date he was $7207.20 in arrears.
4. By way of letter dated 24 April 2017, the tenant was advised that his matter was again being referred to HATRAP.
5. By way of letter dated 6 June 2017, the tenant was advised that the outcome of the HATRAP matter was that a recommendation had been made that the Commissioner seek a termination and possession order.
6. As at 9 June 2017, when the Commissioner completed the application to commence these proceedings, the respondent's arrears were $12,147. At this time the respondent was charged weekly rent of $360. The most recent rent payment had been received on 23 March 2017, which was a payment of $710 plus $30.
7. On the date the matter came before the Tribunal, 6 July 2017, the respondent's arrears were $13,587.20. He had not made a full payment of rent since October 2016, when he paid $255.60 (although the CCL Lawyer advised the Tribunal that the tenant had paid $200 the day before the Tribunal hearing).
8. There was no dispute that, at the time the Commissioner lodged this application, the respondent was consistently not paying, or underpaying, his rent and that his account was significantly in arrears. The validity of the notices and the service of those notices was not in dispute. On any view, it was open to the Tribunal to make a TPO under section 49(1), and indeed the tenant did not did not oppose the making of an order, but sought a CTPO rather than a TPO.
9. For completeness, I note that, on 1 August 2017 the tenant was advised that his application for a rental rebate had been declined, and that he would be required to pay full market rent. A determining factor appears to have been the income of his daughter.

1. A preliminary issue at the third hearing was the weight to be given to the report of the psychologist, Ms Morris.
2. The Commissioner's representative objected to the Tribunal accepting the report into evidence on the basis that the late filing and service of the document amounted to an abuse of process and a denial of natural justice.[22] The concern about natural justice, certainly, was well founded. While not a breach of any direction, the late filing was at the very least discourteous, and it had the potential to undermine the hearing.
3. The report was dated 12 September 2017. Even allowing for some days in the mail to CCL, there was clearly ample time for CCL to file and/or serve the document some days prior to the hearing. The excuse proffered by the CCL lawyer was that she was seeking her client's instructions about service prior to filing the report.[23] That may be so, but when confronted with such a dilemma, she should have at least taken some steps to minimise the impact on the Commissioner and the Tribunal. Someone from CCL could have, for example, contacted both the Commissioner and the tribunal and advised of the nature of the evidence and the reason for the delay, and made arrangements to deal with the sensitive nature of the material.
4. Unfortunately, none of these steps were taken. The Commissioner's representative received the medical report with little notice, and the Tribunal was left with the situation of having been given a highly relevant document in circumstances where the other party had little notice of it.
5. No doubt, a party who is unable to challenge evidence filed by another party may be denied natural justice, but, particularly in a Tribunal hearing, the gravity of that denial must be weighed against other factors, including the Tribunal's obligation to ensure that its procedures are simple and inexpensive and as quick and informal as is consistent with achieving justice.[24] As Justice Keith Mason observed in his essay, in Bounds of Flexibility in Tribunals (AIAL Forum no 38):

Tribunals are not Courts. What is more, they are not intended to act as if they are courts. If tribunals slide into the legalistic, adversarial judicial model they will be thanked by neither courts nor government.

1. To 'courts and government' may well be added 'parties'. We, as members, do parties no favours if we apply an inflexible or legalistic approach to proceedings, including the submission of evidence.
2. However, this flexibility must be weighed against the Tribunal's obligation to ensure natural justice and procedural fairness.[25] A party to a proceeding is entitled know the case that they are required to meet, and have an opportunity to meet it. Permitting a party to rely upon evidence, particularly expert or technical evidence, filed shortly before the hearing, in circumstances where the other party cannot reasonably respond, may amount to an unacceptable denial of procedural fairness.
3. Still, a range of factors would need to be considered. As was observed by the AAT in Re Barbaro and Minister for Immigration and Ethnic Affairs [1980] AATA 76; (1980) 3 ALD 1 at [5]:

In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.[26]

1. The NSW Supreme Court in Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd[27] at [32] observed, albeit in the context of a small claims matter, that:

There may ... be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether that is or is not so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any agreement as to the way in which the proceedings are to be conducted. It is for the relevant tribunal, in this case the Small Claims Division, to determine this in the light of its obligations to act fairly.

1. The same overriding principle to act both flexibly and 'fairly' applies to the Tribunal.[28]
2. What did that obligation 'to be fair' require in these circumstances?
3. No doubt, the late service of the medical report meant that the Commissioner's ability to respond to the report was compromised. The usual approach to the late filing of evidence, being an adjournment (with the possibility of costs under section 48 of the ACAT Act in an extreme case), is no answer to that complaint, because the burden of that adjournment falls on the Commissioner.
4. Where the filing of a document late in the proceedings amounts to a substantial breach of procedural fairness it may be that the only way to relieve that breach is to refuse to admit the document into evidence. However, such an approach should not be a first resort, particularly where the document is clearly relevant and where, as here, the exclusion of the evidence is likely to have profound consequences for one of the parties. Other remedies, including limiting the use of the evidence, adjournment or even, potentially, a costs order under section 48 of the ACAT Act may address breaches more effectively in other cases, but none of those alternative options were appropriate, or sought, in this case.
5. While I acknowledged the inconvenience and prejudice to the Commissioner, I ultimately decided to admit the report because I was satisfied that the balancing of interests favoured its admission. Relevant considers were that:
   • (a) the report was of significant probative value and went directly to matters of fact in issue, including matters directly raised by the Tribunal;
   • (b) the Commissioner was on notice that medical evidence was required by the Tribunal - so while the exact terms of the report may have been a surprise, the overall content and tenor was not;
   • (c) I did not understand any of Ms Morris' report to be seriously challenged. The Commissioner conceded that the tenant had challenging mental health conditions - the question was what relevance those conditions have to the questions to be decided by the Tribunal;
   • (d) the report appeared to be a rather frank one, and some of the content was adverse to the tenant's interests; and
   • (e) on balance, the probative value of the evidence to the Tribunal outweighed the prejudice to the Commissioner.
6. I have set out the use I made of the report below.

1. Before considering the evidence before the Tribunal, it is timely to deal with the other undesirable practice that has arisen in the termination and possession list - that of parties making of submissions that are unsupported by evidence. It is notable that it was submissions of this kind, made by the CCL lawyer at the second hearing that led the Tribunal to request the filing of evidence about the tenant's medical condition. However, certain assertions made by the Commissioner's representative about the waiting list, and the relative merits of the other applicants on it (compared to the tenant), arguably also fall within this description.[29]
2. As noted above[30], the CCL lawyer questioned whether it was appropriate for the Tribunal to require "evidence ...about causal links for a residential tenancy matter to the level that .... one would in a personal injury type case, tort case..."? I take this opportunity answer that question.
3. Section 8 of the ACAT Act makes it clear that the Tribunal is not bound by the rules of evidence, and section 26 of the ACAT Act provides that the Tribunal may inform itself in any way it considers appropriate in the circumstances. This flexibility, as noted above, is one of the things that distinguishes the ACAT from a more traditional Court. However, a legislative licence (indeed, mandate) to be flexible does not mean that the Tribunal should ignore existing legal wisdom, including common sense principles of evidence, fairness and process that have developed over hundreds of years. Where, as in this case, the Tribunal is required to make findings of fact, it must have before it relevant and probative evidence that may rationally prove or disprove those facts.
4. What is required in a given case will be a matter of fairness and reasonableness. As was observed by President Neate AM in Sarbandi v Sharif [ 2017] ACAT 57 at [58]:

The freedom to take into account all of the relevant testimony, materials and circumstances known to it, removed from the strictures of the rules of evidence, is not freedom at large. It is a freedom to be fair.

1. 'Fairness' requires that the Tribunal be cautious about accepting, in other than the most general terms, expert opinion evidence from persons unqualified to give it.
2. The CCL lawyer, during the hearing on 10 August 2017, effectively asserted that the tenant had a serious and relevant medical condition - depression - and that this condition was a cause of his failure to pay rent. The Tribunal was asked to accept on the basis of 'common knowledge', that depression could be a cause of this kind of executive dysfunction and avoidance. Yet, as the Commissioner's representative pointed out, presumably relying upon similar 'common sense' principles, "plenty of people have depression and still pay rent."[31]
3. In a recent case, the Federal Court of Australia ruled that it was not appropriate to give weight to those parts of an affidavit sworn by a lawyer which included opinion evidence in relation to another discipline.[32] The basis upon which the lawyer gave the opinion evidence (or expert evidence) was not set out, although reference was made to, amongst other things, "published literature".[33] There was no evidence before the Court as to whether she had any relevant expertise.[34] The ruling in that case concerned material that a party's lawyer sought to use as evidence in conventional litigation, which, for reasons set out above, is quite different to litigation before a Tribunal. Still, the reasons the Court gave for declining to give weight to that material can also be adopted in Tribunal proceedings, although not as a hard and fast rule against any statement from a party's legal representative.
4. In short, the cause of the tenant's failure to pay rent, and what had changed, were fundamental questions arising in the case. This is precisely the kind of assertion that requires probative - and indeed expert - evidence.
5. The Tribunal does not suggest that a forensic psychological report will be necessary in all cases. However, where an assertion is made about a matter that is usually the subject of expert opinion, that assertion will usually be given minimal weight if it not supported by evidence from a relevant expert. The form that evidence takes, and the nature of the expert, are a matter for the party making the assertion.
6. Finally, I note that the general tenor of the some of the submissions made by the CCL lawyer was that the ACAT should be cautious about requiring specific evidence where doing so may 're-traumatise' a party. She filed submissions and documentation referring to restorative justice in support of her contentions.[35] While I appreciate her concern for her client's welfare, I cannot accept that a 'restorative' approach to justice (assuming it is appropriate in the context of this matter) requires or permits the Tribunal to proceed without evidence. Litigation can be stressful, and parties will inevitably be affected by the giving of evidence, some to a greater degree than others. The Tribunal and the parties can develop effective and sensitive means of dealing with the problems of obtaining evidence in a way that reduces trauma to the party giving it. Many techniques are available to the Tribunal. A party need not be present during the giving of evidence that has the potential to re-traumatise them. It might be possible for some of the evidence to be provided through an expert medical report, as it was in this case. Attendance can be facilitated by telephone or video-link. Cross-examination may be conducted by the member, rather than directly by the other party or their advocate. As also happened in this case, an order may be made under section 39 of the ACAT Act that the proceedings be conducted in private. Parties should identify these issues early in the proceedings, so that appropriate directions can be made to avoid the kind of difficulties that arose in this proceeding.

1. In considering whether to make a CTPO under section 49(4) of the RT Act, the Tribunal needs to consider, as a starting point, how the tenant fell into arrears, and then what had been done to address those problems such that it is a 'reasonably likely' that the tenant will be able to pay the arrears and rent that becomes payable in the future.
2. The tenant's position was that he had experienced a number of extraordinary personal circumstances, which were cumulatively overwhelming and which in turn led to his disengagement with Housing and his uncharacteristic failure to pay rent.
3. Over the course of the two hearing dates, and his witness statement, the tenant gave evidence as to those causes as follows.
4. The first factor was the tenant's loss of his rental rebate, largely due to the continued presence his adult daughter in his home. Under the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1), the income of all members of 'the household' must be considered in calculating a tenant's rebate[36], and the tenant's daughter was clearly able to contribute at least something toward the rent. Both the tenant and his daughter said they had difficulty getting their employers to fill in the necessary forms to apply for a rebate[37], but ultimately the tenant was no longer eligible for a rebate because of his daughter's income.
5. Although his daughter was earning considerably more than him, the tenant was reluctant to ask her for any money to contribute toward the rent:

I couldn't ask my daughter for money because I was too ashamed to. I didn't want to pursue her for full rent. I wanted her to have a good start with her work and have a working career. I saw rent as an expense that I should shoulder not her and I didn't want her to leave home. I was afraid that asking her for money for rent would drive her away.[38]

1. The tenant explained that he had cared for his daughter, as a single parent, since she was a small child. It was evident from the tenant's evidence that he felt very close to her and a very protective and perhaps indulgent father - he said that he "always felt the need to protect her as she is a delicate".[39]
2. The tenant's relationship with his daughter is best contextualised by the medical evidence. The medical report confirms the tenant's long history of moderate mental health and social issues. He has struggled with depression and anxiety and has limited social engagement - he had lived a 'hermit life' for some years. He has held a variety of casual and unskilled jobs over the years, but for most of his daughter's childhood he was primarily her carer and received a Centrelink sole parent pension.
3. How the daughter feels about the relationship with her father I do not know, as she was not called to give oral evidence.[40] She did, however, file an (unsigned) witness statement, confirming some of what her father said about his personal circumstances.[41] At as the date of the third hearing, the tenant had spoken to her about their situation, and she was helping him pay rent, contributing $400 a fortnight.[42] She was not, however, present at either hearing to give an undertaking to pay rent.
4. The first issue was compounded by a second - being the tenant's own loss of employment and income. In the 26 weeks from July 2016 to December 2016, he earned $4,224. His PAYG payment statement for 2616 to 2017 financial year stated that he earned $5,966. The tenant said that it was a "down period" in his trade and "because of the depression and just feeling so broken I was not able to even build the motivation to get myself to Centrelink until recently." He said his rent was not getting paid because of a combination of these factors: "I just didn't have money as I didn't earn much. I didn't communicate to housing what was going on because I was too afraid to."[43]
5. The tenant's loss of income was intertwined with a third issue - a bout of depression that, he said, "made it really hard to get on top of things."[44] His evidence was that his depression was triggered by the breakup a relationship, amongst other personal issues. While the recent incident was not the first bout of depression, he was:

...having the worst period of depression now that I have ever had. I feel ill and just not healthy. I don't like leaving the house, I don't like talking to people. It's been like this for a long time. I can barely get out of bed in the mornings. There are days when I just couldn't get up, get breakfast or have a shower.[45]

1. In addition to having depression, the tenant was struggling with anxiety. For a period of time he "wasn't checking mail out of fear of debt collection collectors and fear of my debts." He would spend days "not waking up until after business hours, then... Sit[ting] there just stressing about the debts... I'd just hide from the world."[46]
2. The report of Ms Morris does not confirm a diagnosis of depression or anxiety, but does indicate other mental health conditions that give rise to similarly avoidant behaviours.
3. Ms Morris stated in the opening passages of the report that she had spent 90 minutes talking to the respondent and in addition the respondent had completed a psychological test. She confirmed that she had read and agreed to be bound by the expert witness code of conduct. Notwithstanding that Ms Morris spent minimal time with the applicant, I have no reason no doubt her medical opinion, and the Commissioner did not seek to impugn it (although I note, again, the limited ability of the Commissioner's representative to do so given the late service of the report).
4. Ms Morris commenced her review by noting that the respondent's recollection of his history was not always consistent during his interview or when compared information he had provided to his legal representative. Nonetheless "... when considered in light of [the tenant's] level of functioning it appears that these discrepancies are the result of poor insight engagement of emotional difficulties rather than intentional deception."[47] I have no reason to doubt this explanation, although I note that with more time, the Commissioner's representative may have made submissions on the consequence of this observation for the weight given to the report.
5. The report set out the respondent's family, relationship, educational and occupational history. I do not need to set these out in detail. He denied drug use, mental illness or criminal history in his youth. He had some learning difficulties particularly with reading and writing. He was always in trouble. Although he clearly experienced personal challenges, no aspect of his background was particularly unusual in the context of a social housing matter.
6. The report stated that the tenant used marijuana recreationally, and that this had had an effect on his cognitive functioning. Ms Morris considered that he met the diagnostic criteria for cannabis use disorder, severe.[48] Ms Morris set out a number of criteria for diagnosis of the condition and bolded six of those criteria - a technique I understand to mean that the respondent met those particular criteria. Relevantly the criteria met by the tenant included:
   • (a) Recurrent cannabis use resulting in a failure to fulfil major role obligations at work home or school.
   • (b) Important social, occupational, or recreational activities are given out or reduced because of cannabis use.
   • (c) Recurrent cannabis use in situations in which it is physically hazardous.
   • (d) Cannabis use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by cannabis.
7. Having considered the tenant's childhood events and early adulthood events, Ms Morris also opined that he met the diagnostic criteria for post-traumatic stress disorder. Again she highlighted a number of diagnostic criteria in bold and I understand this to mean that the respondent was demonstrating those criteria. Relevant criteria included:
   • (a) Avoidance of or efforts to avoid distressing memories, thoughts or feelings about or closely associated with traumatic events. Ms Morris noted the tenant would try not to think about a dramatic incident he witnessed he would use cannabis to attempt to avoid such thoughts.
   • (b) Inability to remember important aspects of the dramatic event.
   • (c) Persistently exaggerated negative beliefs and expectations about himself.
8. Ms Morris noted that the tenant continued to feel that the world is not safe for him and maintains his anxiety and avoidance of public and social situations. The psychological assessment outlined a number of other situations in which he engaged in avoidant activities.
9. On the basic personality inventory (BPI) test the respondent evidenced responses of clinical concern in 10 of the trial scales measured. Ms Morris noted that he would experience his symptoms as "overwhelming".[49]
10. Mr Morris concluded that the tenant:

... presented as a generally open man who uses passive and avoidant methods to manage his life. His history was relatively consistent throughout the interview, although he showed a lack of insight into his current situation. [His] life has been marked by number threats to safety, and each appears to have made in less able to cope the next.

He impresses as being without adaptive coping skills, including help seeking. [The tenant's] mood reportedly deteriorated in mid-2016 however this contradicts information provided to legal representation. [The tenant's] psychological presentation suggests that it is more likely that he lacks insight and chronological awareness than that he has attempted deviance and misdirection. This is supported by [the tenant's] willingness to make payments and attend appointments. [He] is likely to require ongoing encouragement maintains level of engagement to prevent a reoccurrence.

[The tenant's] reports of his history indicate that he meets the criteria for Post-traumatic Stress Disorder and Cannabis Use Disorder, Severe. He does not meet criteria for any other psychological condition or personality disorder at present. [The tenant] would likely benefit from ongoing support in maintaining his engagement. This would likely be through psychological invention financial counselling and life skills including household maintenance.

1. A medical report from his GP that indicated that the tenant had in past years suffered from depression and that he had been prescribed antidepressants. The report indicated that he had seen general practitioners at the surgery for mental health issues like depression and anxiety since 2012 and a psychologist on site in 2014. He was on an anti-depressants for a period but could not tolerate them and had to stop. The tenant was admitted to the adult mental health unit in August 2017 for 1 ½ weeks due to his low mood and suicidal thinking, but this had been his only admission to hospital for mental health reasons.
2. I am satisfied, on the basis of the medical evidence, that the tenant's failure to engage with Housing was symptomatic of his "pervasive patterns of avoidance, helplessness and self-destruction" identified by Ms Morris.[50] I am satisfied that a medical condition contributed to this behaviour.
3. This evidence explains, to my satisfaction, the circumstances under which the tenant fell into arrears. A number of factors converged, and the tenant's underlying mental health conditions and generally avoidant personality led him to put his 'head in the sand' and fail to deal with those issues.
4. Being satisfied as to the circumstances that led the tenant to fall behind his rent, I must now consider what has changed, such that he will not do so again.
5. In his statement, the tenant explained what has changed as follows:

having this matter before the Tribunal has made me realise I need to take more action. It has helped me do things, talk to difficult people, reach out for support and realise that there are people out there to help. If I had known this before and been able to connect the support I would have done it earlier so that I wouldn't be facing eviction.[51]

1. At the second hearing, the tenant set out steps he had taken since the previous hearing date that, including:
   • (a) engaging CCL;
   • (b) CCL having made a warm referral to Everyman for counselling;
   • (c) putting in an application for Centrelink and getting a medical certificate from his GP;
   • (d) engaging with Care Financial, who are helping him to manage his finances.
2. The tenant also relied on a letter from Everyman confirming that he had engaged positively with counselling and had booked a further appointment for a date after the hearing.
3. Additionally he had spoken to his daughter about the rent problems and told her that they could be facing eviction. She now wants to contribute.[52] The daughter's (unsworn) written evidence was that she and her father had reached a plan which she would pay 25% of her income for rent and he would pay 25% of his.[53]
4. The tenant said that, going forward, he would pay the total rent out of his Centrelink through Centrepay and would get his daughter to reimburse him and use that money for other household expenses.
5. The tenant provided a Care Financial report indicating a budget with a surplus of slightly less than $50 a fortnight. This is not a large margin for error, but indicates that, even while unemployed, he has capacity to pay rent, albeit with minimum left at the end of the week. Repayment of arrears on such a slim margin will be difficult, and will require many, many years, but it is not impossible, particularly if the tenancy continues for as long as it has already.
6. Much of the other evidence given by both the tenant and, particularly, his daughter was self-serving and hyperbolic. Untested claims by the daughter that, if evicted, she would have to "live with my friend and her abusive brother who treats her like a slave" are entirely unhelpful. I have paid them no mind.
7. I acknowledge the issues raised by the Commissioner in its opposition to a CTPO, including the difficulties in monitoring CTPOs, the uncertainty that arising from breaches, and the limited financial return to the Commissioner from instalments orders that required small repayments of large debts. These are not irrelevant considerations, but they were not sufficiently persuasive to outweigh the other considerations that are clearly required by the statutory test.
8. A further consideration was the Commissioner's submission that a public housing tenant should be given a 'mainstream experience'[54]. Drawing upon this submission, the Commissioner's representative posed the following question:

So for all intents and purposes we are LJ Hooker. We are the private landlord. It is expected that - it was put to you just a moment ago that it was just one year in a tenancy. That's quite a bit thing to owe $13,000.00 in arrears in a year. That's a lot of rent. Would you expect a private landlord to wear that?[55]

1. This kind of hypothetical comparison between public and private tenants is neither helpful nor, indeed, possible. No two cases are likely to be sufficiently similar that the kind of comparison suggested by the Commissioner's representative could be made. Also, numerous Tribunal decisions recognise the Commissioner's role as a social housing provider of 'last resort' as a relevant consideration in the exercise of discretion for at least some purposes under the RT Act.[56] However, even if I were to accept Commissioner's submission that the legislature intended that public tenants be treated identically to private tenants for the purposes of section 49 of the RT Act (such that the Commissioner's status as a public is not considered), it does not necessarily follow that the volume of the arrears would be the decisive factor in whether to make a CTPO. It is certainly one consideration, as it goes to the likelihood of the tenant being able to repay the arrears, but the circumstances under which the arrears arose, and the change in those circumstances since, would also be relevant, no matter the identity of the lessor.
2. I accept that the decision to grant a CTPO, rather than a TPO, has some minimal impact for the public housing waiting list. I also accept that waiting periods for public housing are lengthy, and that the Commissioner has an interest in managing its assets efficiently, so as to reduce that list. However, there was no evidence before the Tribunal about the other persons on the waiting list for public housing, or any evidence upon which I would make any assessment of the relative merits of any such person, when compared with the tenant. Such is not the role of the Tribunal, in this jurisdiction, in any case. That is not to suggest that management of public resources is an irrelevant consideration, but it is difficult to give that consideration any real or proper weight when put in abstract terms. In any case, there was no dispute that some kind of termination order was to be made in this case - the question was simply whether that order should be conditional. As such, my primary consideration was the factors relevant to that test.
3. The key considerations were that the tenant had a long, seemingly successful tenancy with the Commissioner. He also had a lengthy history of mental illness, but had generally managed his rent and other financial obligations reasonably well for 17 years. He recently experienced a more severe bout of an illness, and more extreme symptoms, perhaps brought on by a change in social circumstances and sudden financial difficulties, as well as a long term substance abuse problem. He disengaged, became avoidant, and fell considerably into arrears as a consequence.
4. It is to the Commissioner's credit that his personnel and representatives tried, on numerous occasions, and at some length, to engage with the tenant throughout his illness. It is unfortunate that he did not engage in turn, but the medical evidence before the Tribunal, and the tenant's own evidence, explains why this was the case. While not an excuse for non-engagement, it is an explanation.
5. In making the decision I did, I expressed, some concern as to whether the tenant had, genuinely, experienced a turnaround in his mental and emotional state, such that he would be able to pay rent as and when it fell due. However, I was satisfied that he wanted to do so, that he had taken some steps to put in place the supports needed to do so, and that he had the financial capacity to do so, whether or not his daughter remains in the premises.[57]
6. That the tenant had successfully managed the tenancy in the past, for such a lengthy period, and had no previous history of default, was at the forefront of my mind.
7. As was pointed out by the appeal tribunal in Clarke, I do not need to be convinced that the tenant will comply with the requirements of the CTPO, I only need to be satisfied that it is reasonably likely that he will do so. The balance of the considerations above were sufficient to permit me to be - albeit just - satisfied that there is a reasonable likelihood that he will comply. I was prepared to give him a chance to do so.
8. In the event that the tenant does not comply, the Commissioner may bring the matter back before the Tribunal, and seek a further TPO.

1. The tenant is to pay to the lessor the sum of $13,607.20 for arrears of rent, such payment to be made in instalments as follows:

[1] See RT Act, section 49(1)(b); Schedule 1, clause 92(b), (c) and (f)

[2] Miller v Minister of Pensions [1947] 2 All ER 372; Macquarie Dictionary, definition of 'likely'

[3] Commissioner for Social Housing v Moffatt [2015] ACTSC 4 at [65]

[4] [2015] ACTSC 4

[5] For example, Commissioner for Social Housing v Pesi [2015] ACAT 58; Commissioner for Social Housing v Game [2015] ACAT 59; Commissioner for Social Housing v Woodward [2016] ACAT 85

[6] Transcript of proceedings 10 August 2017 page 22, line 1 (evidence later suggested their tenure was 17 years)

[7] For example, see transcript of proceedings 10 August 2017 page 18 lines 35-45; page 19line 16 and page 20

[8] Transcript of proceedings 10 August 2017 page 16, line 30

[9] For example, see transcript of proceedings 10 August 2017 page 17, lines 40-45

[10] A reference to the Explanatory Statement to the Residential Tenancies Amendment Bill 2016

[11] Transcript of proceedings 10 August 2017 page 17, lines 25-30

[12] Transcript of proceedings 10 August 2017 page 17 line 45 to page18, lines 1-4

[13] Transcript of proceedings 10 August 2017 page 22, lines 6-12

[15] Transcript of proceedings 10 August 2017 page 22, lines 14-27

[16] Transcript of proceedings 10 August 2017 page 45, lines 34-35

[17] Transcript of proceedings 10 August 2017 page 45, line 41

[18] Transcript of proceedings 10 August 2017 pages 53-54

[20] Not the fifteen originally suggested - see paragraph 21 of these reasons

[22] Transcript of proceedings 10 August 2017 page 61, lines 40-42

[23] Transcript of proceedings 10 August 2017 page 59, lines 17-22

[24] ACT Civil and Administrative Tribunal Act 2008 section 6(b), (c); 7(a).

[25] ACT Civil and Administrative Tribunal Act 2008 section 7(b)

[26] Re Barbaro and Minister for Immigration and Ethnic Affairs [1980] AATA 76; (1980) 3 ALD 1 at [5], approved in United Bonded Fabrics Pty Ltd v Roseman (2000) EOC 93-049, [2000] NSWADTAP 13 at [27]; Cited in in Kevin v Minister for The Capital Territory (1979) 37 FLR 1 at 22

[27] [2000] NSWSC 1153

[28] See also Sarbandi v Sharif [2017] ACAT 57 at [52]- [59] per President Neate AM regarding the 'freedom to be fair'.

[29] Although the tribunal can accept, at a general level, that there is an extensive waiting list for public housing and that many, if not most, people of that list are in difficult circumstances.

[31] Transcript of proceedings 10 August 2017 page 44, line 35

[32] Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336

[35] Randall, M and Haskett, L, Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping (Fall 2013) The Dalhousie Law Journal 501

[37] Witness Statement of Tenant, 8 August 2017 at [25]

[38] Witness Statement of Tenant, 8 August 2017 at [7]

[39] Witness Statement of Tenant, 1 August 2017 at [13]

[40] The CCL lawyer stated that the daughter was at work but may be able to answer the telephone - Transcript of proceedings 10 August 2017 page 65, lines 44-46

[41] Witness Statement of Daughter, 8 August 2017

[42] Transcript of proceedings 10 August 2017 page 63, line 45

[43] Witness Statement of Tenant, 1 August 2017 at [23]

[48] Diagnostic and Statistical Manual of Mental Disorders, fifth edition SMB five, American Psychiatric Association, Washington DC, 2013, pages 509 - 10

[51] Witness Statement of Tenant ,1 August 2017 at [26]

[52] Transcript of proceedings 10 August 2017 page 89, line 10

[53] Witness statement of Daughter at [12]

[55] Transcript of proceedings 10 August 2017 page 68, line 45 to page 69, lines 1-3

[56] For example, see Commissioner for Social Housing v Jones [2016] ACAT 75; Commissioner for Social Housing v Jilbert [2015] ACAT 53 at [56]; Commissioner for Social Housing v Ryan [2015] ACAT 87 at [102]; Commissioner for Social Housing v Radovanov [2011] ACAT 12. Commissioner for Social Housing in the ACT & Canham [2012] ACAT 41 at [52]; see also Commissioner of Housing of the Australian Capital Territory v. Nicole Smith [1995] ACTSC 17 at [29 -[30] per Higgins J

[57] Noting that he will likely be eligible for a rental rebate if she moves out