Robinson v Department of Family & Community Services

NCAT Administrative and Equal Opportunity|2013-08-13

Introduction 1Ms Robinson seeks leave pursuant to s.96(1) of the Anti-Discrimination Act, 1977 (ADA) for her complaints of disability discrimination to proceed before the Tribunal. The Tribunal has determined that leave should be refused. 2Ms Robinson lives with her mother in accommodation rented from the Department of Family & Community Services (the Respondent). She has the benefit of a rent subsidy. 3Ms Robinson alleges that the Respondent has discriminated against her in the provision of goods and services and accommodation on the grounds of her disability in the calculation of her rental payments. She alleges that she is prevented from working regular hours by the reason of her disability and that by application of its rent policy the Respondent has overcharged her for rent. 4Ms Robinson also alleges that the Respondent's policy of calculating rental income for irregular wage earners indirectly discriminates against her on the ground of a disability by reason that she is unable to work in the same way as those who do not have her disability. 5The initial complaint was lodged with the President of the Anti-Discrimination Board (ADB) on 29 January 2013. 6A further complaint was lodged on 18 February 2013 alleging disability discrimination in accommodation and making reference to events which post-dated the first complaint. Additional information was provided on 20 February 2013 and on 28 February 2013 and 2 April 2013 which repeated the allegations. 7On 29 April 2013, Ms Robinson provided the ADB with a copy of the decision of a first tier appeal to the Housing Appeals Committee. This confirmed that her rent had been calculated incorrectly. Additional material was filed with the ADB on 21 May 2013. 8The ADB declined the complaints on 23 May 2013 as lacking in substance and because another more appropriate remedy had been, or was being, or should be, pursued in relation to the complaint or part of the complaint. 9By letter received on 3 June 2013, Ms Robinson requested the ADB to refer the complaints to the Tribunal under s.93A of the ADA. 10Ms Robinson's application was listed before the Administrative Decisions Tribunal for hearing on 13 August 2013. On 1 January 2014, the Administrative Decisions Tribunal was abolished and its jurisdiction was acquired by the New South Wales Civil and Administrative Tribunal. This matter is a "part heard proceeding" within the meaning of clause 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (CATA). This Tribunal may exercise all the functions which the Administrative Decisions Tribunal had immediately before its abolition. The provisions of the Administrative Decisions Tribunal Act, 1997, which would have applied to these proceedings had CATA not been enacted, continue to apply: Clause 7(3) Schedule 1 to CATA.

Ms Robinson's complaint 11Ms Robinson's disability is said to be that she suffers from Type 1 diabetes, anxiety and depression, headaches and migraines, iron and vitamin D deficiencies, sleep disorder and osteoporosis with severe arthritis in her spine. 12Ms Robinson alleges both direct and indirect discrimination. 13As to the claim for direct discrimination, on 1 October 2012, Ms Robinson commenced part-time work and from that date until 2 January 2013 was to pay 15% of her income to the Respondent for rent. On 11 February 2013, Ms Robinson and her mother went to see Jenny Speakman of the Respondent to discuss rent contributions. At that time they provided payslips noting that 15% of her income had been allocated to rent in the period. After reviewing the material Jenny Speakman informed Ms Robinson that the Respondent had taken another $1,800 for rent and asserted that the Respondent was owed a further $300. When asked why the Respondent had taken the further money Ms Robinson says she was told: "Jessie has a disability and under the fact of Jessie's disability the Government has permission to do 15% in a different way" [sic]. 14When Ms Speakman was asked what she meant by this she said: "Because Jessie has a disability Ryde Housing will decide what rent she pays and when she pays and there will be no question of this and this is what she'll do, that is why we've taken the money." 15The matter was raised with Central Sydney Housing Services Division. Ms Robinson received a letter from a Mr O'Reilly on 21 February stating that he had personally checked all the relevant figures, that they were in line with the Housing Department policy and that he was sure that the right rent had been paid and that nothing else had come into it. 16After further complaint, a letter was received on 5 April 2013 from a Mr Neylan, the Executive Director of the Respondent. This letter stated: "Accommodation of increased rent charges and the falling into arrears has been calculated in circumstances which are regrettable and distressing to Ms Robinson who is in arrears." 17The letter states that: "The household's subsidy entitlement and rent have been calculated through careful application of the New South Wales Rent Policy." 18The gravamen of the complaint appears to be that her rent was calculated on a three month basis where because of her disability Ms Robinson's income may fluctuate from week to week. She says that calculation of rent by reference to a three month period results in a higher rate of rent payable than for those tenants who have their rent calculated against weekly earnings and that she has effectively been overcharged by the Respondent for rent. She says that this has had a negative impact on her health and financial situation and that of her mother with whom she lives. 19By her complaint dated 29 January 2013, Ms Robinson seeks the refund of overpayments of rent; rent to be calculated on a yearly basis, based on how much she can work; compensation for her treatment and an apology to her and her mother. 20By her further complaint dated 18 February 2013, Ms Robinson seeks an apology to her and her mother; overpayment of rent refunded; rent to be calculated "each Wednesday"; the same treatment as people without a disability; the same treatment as illegal tenants and reimbursement for work she cannot do because of "stress due to this". 21The claim for indirect discrimination is that by reason of the application of the rental policy, the way in which rent is calculated discriminates against disabled persons who do not earn regular income.

The Respondent's position 22As to the claim for direct discrimination the Respondent denies that the statement alleged of Ms Speakman was made. At no time was the Applicant told that she would be treated differently because of her illness or disease. It is submitted that the Applicant appears to have misconstrued an explanation of the Respondent's Charging Rent Policy which sets out how irregular wages are assessed for the purposes of re-assessing rental rebates. 23It is submitted that Ms Robinson would have had explained to her that because her work was casual and since she cannot provide the Respondent with information about regular income her income would be calculated in accordance with the rules appearing in the Charging Rent Policy under the heading "Assessing Irregular Wages". It is submitted that the Applicant misconstrued this explanation as meaning that because she has a disease and as a result works on an irregular basis her income would be assessed differently to those people who have no disease. 24In accordance with the Charging Rent Policy where a person receives a varying income, such as income received through casual work, Housing NSW will discuss with the tenant how best (within a 26 week period) to predict that person's future weekly income. It may do this in one of two ways: (1)averaging income according to the amount of time worked; (2)using the actual amount received in the first pay and reassessing in 2 months' time. The tenant must submit an application and evidence of further pay for this reassessment. 25Ms Robinson's rental income was calculated using her average weekly wage from October 2012 to January 2013. To average her income over the preceding 26 weeks would not have been accurate. The Respondent says that Ms Robinson advised it in January 2013 that her income had decreased and the relevant subsidy was reviewed to reflect this change. 26The Respondent also denies the claim for indirect discrimination. It says that it has implemented standard policies regarding persons who are in Ms Robinson's position, that is, people in irregular employment who turned 21 during the relevant period and that the policy does not discriminate against people with disability.

Alternative relief 27Ms Robinson has made an application to the Housing Appeals Committee which found she was overcharged $43 a week for the period 1 October 2012 to 6 January 2013 and $1.70 a week from 7 January 2013 to 7 April 2013. It is said that this does not cover the entirety of the money which she has been overcharged and that there is in the order of a further $1,000 owing to her by way of refund of overpayment of rent. Ms Robinson has also commenced proceedings in the Supreme Court of New South Wales regarding the alleged miscalculation. She has an entitlement to seek a second tier review through the Housing Appeals Committee which has not been undertaken.

The operation of s.96 ADA 28S.96 of the ADA provides as follows: "96 Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A(1), ... may not be the subject of proceedings before the Tribunal without the leave of the Tribunal." In its terms s.96 gives the Tribunal an unfettered discretion to grant leave: see Jones & Anor v. Ekermawi [2009] NSWCA 388 at [57] referring to the decision of Schmidt AJ in Ekermawi v. Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [17]. 29The Respondent submitted that there had been no further evidence adduced by the Applicant (other than unfounded allegations that the Respondent had deliberately lied to and mislead the Tribunal) to challenge the finding of the President that there had been no discrimination by the Respondent of the Applicant on the basis of her disability. 30It was submitted that the Applicant had not established that the President's finding was incorrect or satisfied her onus "to convince the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacked substance." 31The Applicant submitted that the facts to be taken into account by the Tribunal in determining whether to grant leave under s.96 where those considered in Xu v. Sydney West Area Health Service [2006] NSWADT 3. These include that the purpose of s.96 was primarily "to prevent complaints that are unmeritorious from proceeding to hearing" Xu at [8]. It was further submitted that the principles applied by the Federal Court when hearing applications for leave to appeal from decisions by the Federal Magistrates Court (as it then was) were applicable to applications under s.96, namely: "(i) generally, an application for leave will not be allowed unless the parties seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attendant with sufficient doubt to warrant it being reconsidered; (ii) To amount to a substantial injustice the complaint must have some prospect of success including, where relevant, some evidence that at least one of the reasons for the treatment about which he or she complains was a ground of discrimination; (iii) The evidence about the reasons for the treatment cannot be based solely on the applicant's version of events - there must be some direct evidence or evidence from which an inference can be drawn which supports that perception." See Xu at [14]. 32The decision in Xu, at least to the extent to which it might be summarised as standing for the proposition that an applicant must satisfy the Tribunal that there is a "substantial reason" for leave to be granted, was considered by the New South Wales Court of Appeal in Jones. 33Although not determining whether or not any requirement for an applicant to show a "substantial reason" for leave being granted was adding a gloss to the words of the statute, Sackville AJA, with whom McColl JA and Handley AJA agreed, held that care should be taken by the Tribunal in construing the operation of s.96 of the ADA not to use language that might be interpreted as altering the "meaning and effect" of the statutory criterion: at [56], [62]. This followed the approach of Gleeson CJ in Salido v. Nominal Defendant (1993) 32 NSWLR 524 albeit in relation to a different statutory leave requirement. In Salido, His Honour held that it would be a "gloss" on the statute to require something other than a determination that it would be "fair and just" to grant leave in the particular circumstances of the case: at [531] - [532]. 34Having regard to Salido, the approach of the Tribunal on the question of leave should be that leave is to be granted or refused depending on what is "fair and just" in the particular circumstances with the onus falling on the applicant to establish that the leave should be granted: see Jones at [59] referring to Ekermawi at [40]. See also Mitry v. Abbas [2013] NSWADT 214 at [32], Gardener Roberts v. State of NSW (Department of Attorney General & Justice [2013] NSWADT 167 (Gardener Roberts No. 1) at [2] per Hennessy DP, Gardener Roberts v. The GEO Group Australia Pty Limited [2013] NSWADT 166 at [1] per Hennessy DP and Hillie v. Henson Properties Group [2012] NSWADT 194 at [2] per Furness JM. 35The Tribunal must have in mind that refusal of leave will finally determine the rights of the parties under the legislative scheme which is dealing with important human rights: see Waters v. Public Transport Corporation (1991) 173 CLR 349 referred to in Ekermawi at [32]. 36The Applicant need not establish a "clear case" for leave to be granted: Jones at [36]. 37A major consideration on an application for leave is whether the alleged conduct of the Respondent if established by the evidence would amount to discrimination on the grounds of disability. That is, the potential merits are relevant. See Gardener Roberts No. 1 at [2]. 38The complaint has been characterised by the President as disability discrimination in goods and services and accommodation within the meaning of ss. 49A, 49B, 49C and 49N of the ADA. These sections provide as follows: "49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 49M Provision of Goods and Services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in the section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 49N Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by refusing the person's application for accommodation, or (b) in the terms on which the person is offered accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person, or (c) by subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if: (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) the accommodation provided in those premises is for no more than 6 persons. (4) Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent. (5) Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members. (6) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation."

The direct discrimination claim 39To prove the complaint of direct discrimination, Ms Robinson will first need to establish that she has a disability. Second, she will have to identify the service or accommodation which the Respondent provided to her and that it falls respectively within the operation of s.49M or s.49N of ADA. Third, she will need to establish that the Respondent has treated her less favourably than it would have treated a person who did not have her disability in the same or similar circumstances. Ultimately, she will need to establish that at least one of the reasons for her less favourable treatment was her disability. 40The Respondent conceded for the purposes this application that Ms Robinson has a disability. It also conceded that the Respondent provides Ms Robinson with a "service" within the meaning of s.49M and s.4 of the ADA. There was no specific submission by either party concerning accommodation within the meaning of s.49N ADA. 41The treatment which Ms Robinson asserts is discriminatory is the application of the Respondent's policy of calculating rental income from irregular wage earners in her circumstances as a part-time worker. To establish differential treatment Ms Robinson will need to identify a real or hypothetical comparator. No submission was made as to the identity of a real comparator. For the purposes of this application the Tribunal accepts that a hypothetical comparator would be a person provided with services by the Respondent who is in irregular part-time employment and who does not suffer from a disability. 42Where the comparator is hypothetical, the differential treatment and causation requirements are to be answered as part of the same reasoning exercise: Dutt v. Central Coast Area Health Service [2002] NSWADT 133 at [65]. 43For the reasons which follow, the Tribunal is not satisfied that Ms Robinson can establish that the Respondent has treated her less favourably than it would have treated the hypothetical comparator in the same or similar circumstances and that one of the grounds for her treatment was Ms Robinson's disability. 44Ms Robinson says that in the meeting with Ms Speakman of the Respondent on 11 February 2013 she was told in direct terms that the allocation of her income to rent from 1 October 2012 to 2 January 2013 was because of her disability. This is denied by the Respondent. Even if Ms Robinson could satisfy the Tribunal that the conversation occurred in its terms, the words spoken do not of themselves establish that Ms Robinson was in fact treated differently to the hypothetical comparator and that one of the grounds for the treatment was her disability. 45The President's Bundle was before the Tribunal. There is contained in the Bundle a letter from the Respondent to the ADB dated 5 April 2013 which attaches the Charging Rent Policy for the Respondent as amended on 8 October 2012. Clause 2 of the Charging Rent Policy provides: "This policy applies to all tenants living in property owned or managed by Housing New South Wales, including tenants of the Aboriginal Housing Office." 46The Rent Charging Policy provided for the assessment of irregular wages as follows: "Assessing Irregular Wages Where a person will receive a varying income, such as income received through casual work, Housing NSW will discuss with a tenant how best to predict the person's future weekly income. Housing NSW may do this in one of two ways:

averaging the income according to the amount of time the person has worked (within a 26 week period), or
using the actual amount received in the first pay and re-assessing the rent subsidy in 2 months' time. If a tenant wishes to use this assessment method, they will have to resubmit a second rent subsidy and evidence of actual income received so that Housing NSW can conduct the reassessment. If this method is used and the estimated income is lower than the actual amount of income received Housing NSW will adjust the subsidy and the tenant will need to make up the difference in rent payable." 47The letter from the Respondent dated 5 April 2013 responds in terms to inquiries from the ADB concerning the complaint. Mr Neylan, the Acting Executive Director of the Respondent, states: "The household subsidy entitlement of rent had been calculated through careful application of the Housing NSW Rent Policy. I am satisfied that no other factors have influenced this calculation beyond the requirements of the rent policy. The policy is publicly available on the Housing NSW website." Mr Neylan continued: "Public Housing tenants who are eligible for subsidised rental pay a certain percentage of their gross weekly income in rent. Housing NSW calculates a person's rent based on their wages over the previous 26 weeks if they have been working throughout that period. For clients who have more recently commenced employment, an average of their wage can be determined in two ways:
averaging the income according to the amount of time the person has worked (within a 26 week period), or
using the actual amount received in the first pay and re-assessing the rent subsidy in 2 months' time. If a tenant wishes to use this assessment method, they will have to resubmit a second rent subsidy and evidence of actual income received so that Housing NSW can conduct the re-assessment. If this method is used, and the estimated income is lower than the actual amount of income received, Housing NSW will adjust the subsidy and the tenant will need to make up the difference in rent payable. The average weekly wage was used to determine the household income from October 2012 until January 2013. If Housing NSW considered Ms Robinson's income for the purpose of the previous 26 as opposed to the 14 weeks in which she was working, this would not have an [sic] accurately captured the true weekly household income. Following advice in January that the income had decreased the subsidy was reviewed to reflect this change." 48The letter went on to say that Housing NSW considered the income of the entire household in order to determine rent payable and that the combined income for Ms Robinson's household is classified as a moderate income and that the family should be charged 29% of their combined income in rent. 49The letter notes that although the rental charged since January 2013 had been based upon 29% of the household's income, Ms Robinson had in fact been charged 25% of the income she has brought to the household. This was the result of a programming error within the tenancy management computer system which impacted on clients no longer receiving a concessional rate, who belonged to a household with a moderate income. This issue was rectified and the Respondent will adjust subsidies automatically during the next automatic subsidy review in mid-April 2013. The letter noted that if there are no other changes to the household income there will be a further small increase. It noted that Ms Robinson had effectively paid a lower rate of rent since January 2013 and that as this was a Housing NSW error the undercharged rent has not been backdated. 50The letter from Mr Neylan further noted: "Housing NSW has utilised the charging rental policy accurately and refutes discriminating against Ms Robinson on either grounds of disability or for being a casual wage earner in general." 51For the purposes of this application, the Tribunal accepts the letter from Mr Neylan as evidence of the application of the Housing rent policy both generally and in respect of Ms Robinson. The operation of the subject policy is directed towards assessing irregular wages which in its terms contemplates persons receiving varying income "such as income received through casual work". Ms Robinson is such a person. 52The Tribunal can find nothing in the Charging Rent Policy on its face or in any other material before it which would be likely to establish either directly or by inference that at least one of the grounds for the application of the policy to Ms Robinson was on the grounds of her disability. She has been treated no less favourably than any other person receiving an irregular wage. The claim for direct discrimination in the provision of services has no grounds.

The Accommodation claim 53Although the President referred in the President's Report to Ms Robinson's complaint comprising discrimination in the provision of accommodation no submissions were received from the parties on this aspect of the complaint. It would seem that Ms Robinson's claim if it was to proceed under this head would be for a breach of s.49N(1)(b), namely discrimination on the ground of disability in the terms on which the person is offered accommodation or s.49(N)(2)(c) by subjecting the person to any other detriment. 54Ms Robinson happens to fall within the application of the Charging Rent Policy in respect of an irregular wage earner as do many others. For the reasons previously expressed, there is no evidence either directly or by inference that one of the grounds for the treatment which is the subject of complaint was Ms Robinson's disability. There is no evidence of differential treatment by reference to the hypothetical comparator. The Tribunal can see no basis upon which a claim for discrimination in the provision of accommodation would succeed on the basis of the evidence before it.

The indirect discrimination claim 55In order to establish indirect discrimination Ms Robinson must satisfy the Tribunal that the Respondent has discriminated against her within the meaning of s.49B(1)(b) of the ADA. She will have to prove that: (1)She has a disability within the meaning of the term in ADA; (2)The Respondent required her to comply with a requirement or condition and thereby subjected her to a detriment ; (3)That treatment consisted of imposing a requirement or condition on all persons in receipt of irregular wages provided with housing by the Respondent; (4)Ms Robinson cannot comply with that requirement or condition; (5)A substantially higher proportion of people without Ms Robinson's disability than people with her disability can comply with the requirement or condition; and (6)The requirement or condition is not reasonable in all the circumstances. See Court v. University of Western Sydney [2013] NSWADT 16 at [26]. 56The operation of s.49B(1)(b) was considered by the Appeal Panel in The State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16 in which it was held: "13 As a matter of policy and practice to date, the existence or non-existence of a reason for discrimination lies at the heart of the distinction between direct and indirect discrimination. As has been observed by the High Court in previous matters, indirect discrimination or "adverse effect discrimination" (see Street -v- Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461) "[signifies] that some criterion has been used or some matter taken into account which although it does not in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment has been accorded precisely for a reason of that kind"; Waters -v- Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 357 per Mason CJ and Gaudron J. See also Australian Iron and Steel Pty. Ltd. -v- Banovic & Ors [1989] HCA 56; (1987) 168 CLR 165. 14 It is in this sense that indirect discrimination was enshrined in legislation in most Australian States, that is, not premised upon the reasons underlying the perpetrator's imposition of the condition, which although "facially neutral", nevertheless had an adverse impact upon those persons who were not able to comply with the condition. Thus, the imposition of a requirement or condition that students not wear hats to school may be motivated by a desire to standardise students' dress, but if it adversely affects the Sikh population of the school, in so far as it conflicts with the cultural and/or religious dictates of those students, namely the wearing of turbans, then it constitutes indirect discrimination. In other words, the causal relationship between the imposition of the requirement or condition and the complainant's race is neither here nor there; it is the differential nature of the impact of the requirement or condition, that is, its effect, which is central to the notion of indirect discrimination. The only relevance of race is in relation to the reasons for non-compliance with the requirement or condition by the complainants." 57The detriment to which Ms Robinson says she is subjected is that, under the operation of the Charging Rent Policy in its application to those who are on irregular wages by reason of her illness, she will be left in the position of not having worked regularly with the result that her income is less than that estimated by the Respondent. In that event, she will pay a greater proportion of her actual income to rent. It is noted that any overpayment is subject to readjustment and refund as has occurred in Ms Robinson's case. 58Ms Robinson bears the burden of proof in relation to each of the elements of indirect discrimination: Deerubbin Local Aboriginal Land Council v. Hunter [2012] NSWADTAP 15 at [38]. No evidence was referred to by Ms Robinson or submissions made on the issue of indirect discrimination. 59While for the purposes of this application Ms Robinson's disability is conceded and on final hearing Ms Robinson might establish that she has been subjected to a detriment and that the treatment was imposed by operation of the Charging Rent Policy in respect of irregular wage earners to all irregular wage earners, the Tribunal cannot be satisfied that Ms Robinson would be able to establish that she cannot comply with the operation of the Charging Rent Policy with regard to those earning irregular wages. Nor is it likely that Ms Robinson will be able to establish that the criterion for calculating rent payable in the Charging Rent Policy has a differential effect on people with a disability. She complains that as a result of her disability she is only able to earn irregular income and that the policy in calculation of her rent in effect does not take this into account. The policy is said to require her to pay more rent as an irregular wage earner. On the material before the Tribunal, it is apparent that the policy directs itself to people who have irregular employment and that the applicant's rent is calculated in accordance with that policy. That policy aims to fairly calculate the rent of a person in irregular work. Any overpayment by reason of the calculation is refunded. Ms Robinson has to date complied with the policy. There is no evidence that the policy concerning irregular wage earners has a differential effect on people with a disability. 60Insofar as the Tribunal can understand it, without the benefit of evidence or submissions, the complaint of indirect disability discrimination is unlikely to succeed.

Whether the complaints are lacking in substance 61The criteria laid down in s.92(1)(a) of the ADA are relevant to the exercise of the discretion conferred by s.96 although not necessarily determinative of a leave application under that section. See Jones at [60]. 62S.92 provides: "92 President may decline complaint during investigation 1. If at any stage of the president's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance ... or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject matter of the complaint has been, is being, or should be, dealt with by another person or body, ... The President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint." 63A complaint will be lacking in substance where there exists no factual basis for the allegations, or the allegations lack merit: see Harding v. Vice Chancellor, University of NSW [2003] NSWADT 74 at [24] referring to Langley v. Niland & Anor [1981] 2 NSWLR 104 at [107]; Reyes Gonzales v. Sydney Institute of Technology (1998) NSW EOT (6 March 1998) at [6]. In Paramasivam v. Vice Chancellor, University of NSW [2003] NSWADTAP 2 at [25] the Appeal Panel found that: "The complaint, in legal terms, comprised the evidence that exists to support it. If that evidence does not support the factual allegations or, even if they do, if the factual allegations are not comprised a breach of the ADA, the complaint 'lacks substance'" 64Taking these authorities into account and having had regard to the material before the Tribunal including the material in the President's Bundle and the submissions of the parties, the Tribunal does not accept that the evidence proposed by Ms Robinson even taken at its highest would establish the allegation of differential treatment on the grounds of disability either in the provision of services or in accommodation. Nor for the reasons expressed will Ms Robinson be likely to make out her claim for indirect discrimination. On the basis of the authorities the Tribunal concludes that each of the complaints lacks substance. 65There was also evidence before the Tribunal that having made application to, and been successful before the Housing Appeals Committee resulting in a refund of overpayment of rent, Ms Robinson has commenced proceedings in the Supreme Court of New South Wales regarding the alleged miscalculation of rent. Additionally, she also has an entitlement to seek a second tier review through the Housing Appeals Committee. The Charging Rent Policy expressly contemplates at clause 6 that any concerns over rent charges should be taken by a tenant to their client services officer and if they still believe Housing NSW has made an incorrect decision to ask for a formal review of the decision. This is what has occurred. The Tribunal is satisfied that another more appropriate remedy has been or is being pursued in relation to the complaint or part of the complaint within the meaning of s.92(1)(a)(iv). The Tribunal is also satisfied that the subject matter of the complaint has been, is being, or should be, dealt with by another person or body within the meaning of s.92(1)(a)(v). 66The Tribunal has concluded that Ms Robinson's complaints are without substance, that another more appropriate remedy has been or is being preferred in relation to the complaint or part of the complaint and that the subject matter of the complaint has been, is being, or should be dealt with by another person or body. 67Ms Robinson has failed to satisfy the onus which is on her to establish that leave should be granted. The Tribunal is not satisfied that it is fair and just in the particular circumstances of the matter that leave should be granted.

Orders 68The application for leave to proceed is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2014

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Judgment (11 paragraphs)

Parties

Cases Cited (9)

Cited By (2)