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No home left behind!

Leo Patterson Ross • 24/05/2021

This piece was originally published in Parity, Australia's national homelessness publication.


As you sit, flicking through Parity, thinking about the kind of housing system you would create if it were up to you - would you intentionally design a type of home that is so small and offers such a poor experience that it counts as a form of homelessness? I hope that you would not.

And yet, we have come to see boarding or rooming houses increasingly moving to become accepted and embedded as a form of accommodation that is a person’s principal place of residence. This is quite a shift from the role that boarding or lodging agreements have traditionally played.

By definition they are not designed to be the person’s home. One of the few leading cases in Australia on the question of whether a person is a tenant or a lodger was the state of Western Australia attempting to prevent the continuing avoidance of tenancy responsibilities. This was not so long ago, in 2005, and Justice Hasluck summarised the difference between tenant and lodger as: “a lodger is entitled to live in the premises but cannot call the place his own. He resides essentially as an inmate in another person’s house.”[1]

In contrast a tenant does have the right to call the place their own. That is what a lease provides - a property right to hold possession of the premises. Much as those who loudly proclaim the importance of upholding property rights never seem to mean those that benefit tenants, this is what they have.

A home is a special place. It is more than somewhere to take shelter – it is your place to live life in whatever way seems most appropriate to you. To create memories, to inhabit in both physical and intangible ways. For many, though not all people the experience of returning to your childhood home is one of the most powerful ways this special character is felt.

People should always have access to shelter that meets their needs. A person fleeing a disaster, whether flooding, fire or violence might need temporary accommodation while they are between homes. A person travelling away from home for work might need a temporary base, but not to feel at home. For these situations, we may not need a contractual or regulatory set up that provides for the experience of home.

But people need stable homes too. Our focus should be on catering to the needs of the person looking for a home. We should ask ourselves, if an unregulated market is not meeting those needs, how can legislation or regulation be written to ensure those needs are met.

Everything else becomes a problem of how to achieve that outcome. We should rigorously examine what is and is not working for people seeking homes and ask how can we fix that. Responses to homelessness such as Housing First come from a person-centred approach. These approaches focus on supporting the individual’s ability to make decisions for themselves and requires flexibility of the services to support the person’s own choices. We should seek to extend person-centred approaches in other areas of housing as well.

In a truly person-centred approach, we wouldn't start with the premise of meeting landlord's operating or development costs and reducing those. We would start with identifying the housing need. Of course meeting that need leads to costs which need to be covered. If there isn’t a market-based solution that covers both needs and costs, then it is for government to cover those costs.

We can see glimpses of progress in NSW’s recent announcement that they will be introducing some affordability and management requirements for what are known as ‘new generation boarding houses’. This is part of a broader change to the planning instruments.[2]

The new-generation boarding houses are tiny micro-apartments that rely purely on their minimal size to deliver a reduced rent. The effectiveness of that theory has always been dubious. Rents in these studios are often not far off the rent for full-sized 1 bedroom units, because the need for a roof over one’s head is overwhelming and the supply of genuinely affordable alternatives so few.

It is telling that the non-affordability focussed near equivalent ‘co-living’ has been pitched at a fairly reasonable 30sqm for the private room, with the building still including significant communal areas. Are people who need affordable housing’s other housing needs lesser? Or have we fallen into the trap of reducing the cup.

At its root, this theory claimed that affordability comes by reducing the desirability of the home on offer. Is this an approach that civil society would find acceptable in meeting other fundamental needs?

Would we sell water to the thirsty in increasingly smaller cups, until a person is trying to sate themselves with just a drop? Is that charitable? I think that would rightly be seen as somewhat cruel. Would you even believe the thirsty person to be a shrewd negotiator over the price of the water, or would they give whatever they had?

Why is it that we are so comfortable telling people that they must accept smaller and smaller housing forms? If we are not comfortable, why are we doing it?

Does a person-centred approach mean we should oppose all micro-apartments? No! Someone might well decide that they like that. If there is sufficient demand for it, removed from the lack of any other option, the money will sort itself out. What we should oppose is a person being forced, through the lack of any other option, to make a false choice. A choice made under the duress of more or less severe homelessness can never really be called person-centred.

Another issue in these reforms is the potential loss of rights for people living in these homes. Despite their clear use as a principal place of residence, some discussion has been focussed on the use of occupancy agreements. The lesser rights afforded, including crucially no Tribunal oversight of evictions, have been avoided so far by many residents. The planning instrument and the residential contracts were sometimes in conflict with each other as the boarding houses required lodging licences, but the actual relationship was clearly one of a tenancy. The solution shouldn’t be to downgrade the residential contracts. Again, a person-centred approach makes this choice clear.

The progress comes in the recognition that size alone does not deliver affordability, and that the private sector is not well-suited to delivering it. For these reasons these micro-apartments will now be required to be priced at 80% of market rent, and be managed by community housing providers. Both of these are certainly moves in the right direction, but I worry that it is starting from a flawed premise because of what it is missing.

What is missing is the person-centred approach. We have started with the premise that smaller dwellings are cheaper to develop, and are twisting ourselves in knots to build them and to develop government and community support for them – but without asking, is this something a person wants to live in?

 

[1] Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229

[2] Department of Planning, Industry and Environment (2020) Proposed new Housing Diversity SEPP Explanation of Intended Effect accessed 30/3/2021 at https://www.planningportal.nsw.gov.au/proposed-new-housing-diversity-sepp