Rent Subsidy Non-Disclosure Policy

1. Background

The Department of Communities and Justice (DCJ) may grant a rent subsidy if a tenant with a low or moderate household income applies for a rent subsidy. The rent subsidy will reduce the amount of money the tenant pays in rent.

The rent subsidy is the difference between the market rent and the rent the tenant pays based on their household’s assessable income. DCJ does not pay the rent subsidy to the tenant, but deducts it straight from the market rent.

DCJ calculates subsidised rent according to the tenant’s household size, type and gross assessable income. For more information, see the Charging Rent policy.

Tenants who receive a rent subsidy must advise DCJ of any changes to their household circumstances within 28 days of the change occurring. They must do this even if they are in the Centrelink Income Confirmation Scheme.

The intent of this policy is to:

• ensure that tenants are receiving the correct rent subsidy
• minimise fraud
• outline appropriate action when DCJ finds that a tenant is receiving a rent subsidy they are not entitled to.

The Tenancy Charges and Account Management policy supplement provides further information to support this document.

2. Scope

This policy applies to all tenants living in properties owned or managed by DCJ, including tenants of the Aboriginal Housing Office.

In situations where there is evidence that subsidy fraud has occurred, DCJ will approach these matters in accordance with the standard provisions for criminal prosecution.

3. Policy statement

DCJ has the authority to grant a rent subsidy under the provisions of the Housing Act 2001.

A tenant is responsible for showing DCJ that they are entitled to receive a rent subsidy. If DCJ receives information that a tenant may be receiving a rent subsidy they are not entitled to, it will assess the situation to determine if:

• no further action is required, or
• rent subsidy non-disclosure has occurred, or
• rent subsidy fraud has occurred.

To find out more about how DCJ may receive information, go to Receipt of information by DCJ.

Rent subsidy non-disclosure occurs where a tenant has failed to advise DCJ of any change to their household circumstances but has not done so deliberately.

Rent subsidy fraud occurs where:

• a tenant is aware of their obligation to advise DCJ of any change to their household circumstances, and
• deliberately does not advise of the change. This can occur either by deliberate omission, or through a false, incomplete or misleading statement.

Where DCJ investigates an allegation of rent subsidy non-disclosure, it will apply the principles of procedural fairness. This means that a tenant will:

• have the right to an impartial hearing, and
• be advised of the relevant policy and what is required of them, and
• be told about the information and any documentary evidence DCJ has obtained, and
• be given a reasonable opportunity to respond to any allegations made against them, and
• be advised of the outcome of the investigation and their right to appeal.

Where DCJ finds that a tenant has received a rent subsidy they are not entitled to, it may take a range of actions, depending on the circumstances. These actions may include cancelling or adjusting rent subsidies, through to termination of the tenancy and/or criminal prosecution. DCJ can take these actions under the provisions of the Housing Act 2001 the Residential Tenancies Act 2010 and the Crimes Act 1900 (NSW).

Dealing with an alleged failure to disclose a change in household circumstances

A tenant may be receiving a rent subsidy they are not entitled to if they have not told DCJ about:

• all household occupants or a change to the household occupants
• all of the income received by the household occupants (including the tenant)
• a change to the income of any household occupant (including the tenant)
• all of the financial interests of the household occupants (including the tenant), for example, shares, savings, an inheritance
• all property ownership interests of the household occupants (including the tenant).

Where DCJ receives information that a tenant’s household circumstances may have changed, or may not be correct, and the tenant has not told DCJ, it will investigate the matter by:

1. Where relevant, asking the person who supplied the information (informant/complainant) if they are willing to provide their information in writing.
2. Conducting an initial assessment of the allegation to determine if possible rent subsidy non-disclosure or fraud has occurred.

Where this initial assessment indicates that possible rent subsidy non-disclosure has occurred, DCJ will continue to investigate the matter by:

1. Where relevant, making inquiries. For information on how and when DCJ will make inquiries, go to Inquiries related to alleged subsidy non-disclosure.
2. Advising the tenant in writing of the details of the allegation and giving them an opportunity to respond to the allegations during an interview.
3. Interviewing the tenant and giving them a reasonable opportunity to respond to any allegations. The tenant may have a support person present at the interview. If an interpreter is required, DCJ will arrange for one to be present.
4. Assessing the information. DCJ will take a range of information into account when deciding whether a tenant’s alleged failure to disclose information about their household circumstances is an unsubstantiated allegation, rent subsidy non-disclosure or possible rent subsidy fraud. For more information, go to Assessment criteria and evidence for determining subsidy non-disclosure.
5. Deciding on the action to take based on the outcome of the assessment. For more information, go to Outcome of assessment.

Evidence requirements for deciding the outcome of an investigation

DCJ will consider a range of evidence when deciding:

• whether a tenant’s alleged failure to disclose information about their household circumstances amounts to an unsubstantiated allegation, rent subsidy non-disclosure or possible rent subsidy fraud
• if any mitigating or extenuating circumstances apply, including domestic and family violence.

4. Legislation and compliance

DCJ is able to grant, re-assess or cancel rent subsidies and/or undertake criminal prosecution in accordance with the provisions of the Housing Act 2001 and the Crimes Act 1900 (NSW). DCJ is able to pursue any debt resulting from a rent subsidy cancellation or re-assessment in accordance with the provisions of the Residential Tenancies Act 2010.

The Housing Act 2001 prescribes a maximum penalty of 20 penalty units (that is the equivalent of $2,200 at the date of publication of this policy) and/or three months imprisonment for:

• wilfully making a false statement or representation to claim a rent subsidy to which the tenant is not entitled, or
• failing to notify of a change of circumstances with the intention of retaining or continuing to obtain a benefit, which the tenant knows they are not entitled to.

Privacy and confidentiality

DCJ will protect the identity of an informant/complainant at all times and cannot disclose information about the informant/complainant without their permission, unless required by law, for example, as part of a criminal proceeding.

In order to protect the tenant’s privacy, DCJ will not tell the informant/complainant about the outcome of the investigation.

Criminal proceedings

Where an assessment indicates that possible rent subsidy fraud has occurred, DCJ will investigate this with a view to criminal prosecution. The standard procedures for criminal investigations will apply.

The Residential Tenancies Act 2010 provides that NCAT must make an order terminating a tenancy if the tenant has been found guilty, in a criminal proceeding, of an offence under Section 69 or 69A of the Housing Act 2001.

5. Further information

Appeals and review of decisions

If a tenant disagrees with a decision DCJ has made, they should first discuss their concerns with a Client Service Officer. The next step, if they still believe DCJ made an incorrect decision, is to ask for a formal review of the decision. For information on how reviews work, the tenant can ask the Client Service Officer for a copy of the fact sheet Appeals and reviewing decisions, or read the Appeals policy.