Defending public housing maintenance claims

Under Victorian rental laws both private and public housing renters have duties to:

• Keep, and leave, their rental property in a reasonably clean condition [section 63]
• Not damage their rental property or any common areas [section 61]

If you breach these duties and the rental provider (landlord) for public housing, Homes Victoria, needs to undertake repairs or cleaning because of this, they can make a claim against you for any losses of costs they incur because of your breach [sections 78, 79, 209 and 210]. Homes Victoria (also known as the Director of Housing) is a division of the Department of Families, Fairness and Housing (DFFH).

Note that on this page sections in brackets, such as [section 63], refer to sections in Victoria’s Residential Tenancies Act 1997. See the Resources section at the bottom of this page for links to the laws.

For private rental properties, claims for cleaning or damage are often made by rental providers as bond or compensation claims. In public housing properties Homes Victoria, as the rental provider, more commonly makes claims for cleaning and damage as ‘maintenance claims against the tenant’ (MCATs), also called maintenance charges or vacated maintenance charges.

Despite the differences in how a claim may be made, defending against these sorts of claims is the same in many areas. If a maintenance claim is made against you we recommend you read our page Defending bond and compensation claims. The information on that page may assist you in defending the claim.

We also recommend you read our page Condition reports, as you cannot be held responsible for damage that was recorded on the condition report or that was there when you moved in.

You should also report any repairs needed or damage to the property to Homes Victoria as soon as possible to help you defend against any later claims that may be made for damage that are its responsibility to fix [sections 72AA and 62]. See our page on Repairs for public housing.

The operational guidelines for public housing provide that costs for property damage will not be claimed if the damage is due to these causes:

• Fair wear and tear caused by normal use
• An accident or actions which could not be reasonably prevented – for example, the renter or a member of the household has a disability (physical or intellectual), a mental health condition or is a victim of family violence
• Previous repairs undertaken by Homes Victoria that did not meet the required standards
• The criminal actions of a third party, and it was beyond the control of the renter to prevent it from occurring
• Police intervention, if they were called to attend the property
• Natural disasters, such as storms or floods
• The property is vacant, and it cannot be determined with sufficient certainty who is responsible for the damage

The guidelines also provide that certain circumstances of the renter, which might reduce or remove their liability, need to be taken into consideration. These circumstances include:

• Family violence
• Disability or health condition
• Mental health
• Children with behavioural disorders

The guidelines include examples where the maintenance claims were not made against renters. They include these circumstances for renters where:

• They had to leave the property at short notice because of family violence and were unable to clean before they left and take all their belongings
• They have a physical disability that made it difficult for them to scrub the bathroom
• They have to use a wheelchair, which damaged the floor
• They had an acute psychotic episode, during which they caused damage to the property

A meeting may be held with the renter to develop a plan to minimise the risk of damage or uncleanliness happening again.

If Homes Victoria makes a maintenance claim against you it is important that you do not ignore it, even if you are no longer living in public housing – especially if you believe you are not responsible for what is being claimed, or that a possible exemption applies.

You do not need to agree to pay a maintenance claim just because one is made. If you do not agree you are responsible for the claim Homes Victoria needs to apply to VCAT (Victorian Civil and Administrative Tribunal) for an order requiring you to pay. If that happens VCAT will schedule a hearing which you will be able to attend to give your side of the story and defend yourself against the claim.

The claims process

The operational guidelines set out the processes that must be followed if Homes Victoria wants to make a maintenance claim against you.

Notices

After investigating the cause of the damage at the property, and any possible exemptions, if Homes Victoria decides you are responsible for damage, it may send you a:

• Notice of repair
• Notice of cost of repairs

The notice should include specific details of what they think is wrong with the property, the works that have been, or will be carried out, to fix the damage, and the costs of fixing it.

If a ‘Notice of cost of repairs’ is sent it will include an ‘Acceptance of liability’ form. Do not sign this form if you do not think you are responsible for the damage or think the amount of the claim is not reasonable. You will have an opportunity to defend the claim or negotiate the costs during the claim process.

If you have not caused any damage to the property but have breached your duties relating to cleanliness and damage Homes Victoria may instead send a ‘Breach of duty’ notice [section 208]. If you receive this notice, see our page Renter breaches.

Negotiation

After sending you a notice about the claim, Homes Victoria must make reasonable attempts to contact you to arrange a meeting to negotiate the claim.

During this meeting, Homes Victoria will take into account factors such as the age of the damaged item and its condition and depreciation as well as any other relevant circumstances. These might include family violence, disabilities, and mental health conditions that affect you and members of your household, including children.

Before attending this meeting, we recommend you read our page Defending bond and compensation claims. Bond and compensation claims are similar to public housing maintenance claims and the information on this page may assist you with your negotiations.

You are also entitled to have your own representation at the negotiation meeting. If you want representation, you can contact us on our Social Housing Tenants number, 1800 068 860, or your local Tenancy Plus support provider.

Useful contacts

• Tenants Victoria [our contact page]
• Tenancy Plus Support Program [Housing Vic website]

Agreeing to the claim

If you agree you are liable for the claim, and agree with the amount being claimed, you have 2 options:

• Pay the amount in full
• Enter into a maintenance payment agreement to pay the amount off in weekly or fortnightly instalments

If you are experiencing financial hardship, we recommend you pay the amount off in instalments that you can afford. The minimum amount payable under a payment agreement is $5 a week or $10 a fortnight.

Disputing the claim

You do not need to agree to pay the claim just because Homes Victoria wants you to pay it.

If you agree you are responsible for some of the claim, but not all of it, you can try to negotiate a lesser amount.

If you do not agree you are responsible for any of the claim Homes Victoria is required to review its decision to make a claim against you.

After it has reviewed its decision, you will receive a letter saying whether or not the claim has been changed. If it has not been changed the negotiation process will continue.

If you still do not agree you are responsible for any of the claim Homes Victoria needs to apply to VCAT if it wants you to pay.

You can also appeal the review decision if you do not agree with the outcome. The HousingVic website has information on this.

Or you can make a complaint to the Victorian Ombudsman, who can help resolve complaints about maintenance and repairs in public housing.

If Homes Victoria applies to VCAT

If Homes Victoria applies to VCAT, it will schedule a hearing.

At the hearing Homes Victoria will need to prove its claim, including that you are responsible for the damage and that the amount being claimed is reasonable.

If you do not agree that you are responsible for the claim, or think the claim is not reasonable, you will get a chance to state your reasons and provide any evidence to support your reasons.

To prepare for the hearing, make notes outlining what you want to say and gather all your evidence. Being organised is the key to presenting a good case.

Make sure you take to the hearing a copy of the rental provider’s application, their evidence, your own evidence and your notes.

For more information on getting ready for a VCAT hearing, see our pages Defending bond and compensation claims and VCAT.

Public housing
Rents for public housing
Repairs for public housing
Renter breaches
VCAT
Moving out