Rights on Paper, Eviction in Practice

Vulnerable Tenants and the Missing Support Between Crisis and Homelessness

Nancy Earl is a Tenant Advocate at the Central Coast Tenants’ Advice and Advocacy Service, with over seven years’ experience. Nancy has worked extensively with a wide range of tenants, including private renters, social housing tenants, and land lease community residents, assisting people with their everyday renting rights and with the NSW Civil and Administrative Tribunal (NCAT).
 

Vulnerable tenants are often expected to navigate housing problems at the very moment they are least able. At the NSW Civil and Administrative Tribunal (NCAT), vulnerable tenants may present with serious issues such as threatened eviction, rent arrears, access issues, hoarding, unauthorised occupants, failure to attend a hearing, and more. However, in practice, these issues are usually linked to a wide range of other factors, including disability, mental illness, trauma, hospitalisation, cognitive impairment, family violence, lack of support, sudden loss of capacity, and others. These underlying factors may not be apparent in the NCAT application itself.

When this happens, the tenancy process continues through NCAT even if the tenant is unable to participate properly. Notices are issued, hearings are listed, and orders are made. Deadlines pass. By the time someone steps in to help, the tenant may already be facing possession orders, the risk of an eviction warrant, substantial debt, or the loss of social housing.

We know that tenancy obligations are important to landlords and housing providers. Social housing providers also manage a limited housing stock and have responsibilities to other tenants, neighbours, and the broader community. However, what happens when a tenant’s ability to meet their tenancy obligations is affected by vulnerability, incapacity, or unmet support needs?

Tenancy processes often assume that a person can read and understand notices, seek advice, gather evidence, attend NCAT, negotiate, comply with orders and coordinate support services. For many vulnerable tenants, this assumption is not valid. A person who is in hospital, recovering from serious illness or injury, experiencing mental illness, living with a cognitive impairment or dealing with trauma may not be able to respond as the system expects.

This is where rights on paper can differ greatly from those in practice.

The Residential Tenancies Act contains important protections against unlawful eviction. A landlord cannot remove a tenant without following the legal process. Under the Civil and Administrative Tribunal Act, NCAT is intended to provide an accessible forum for resolving tenancy disputes fairly, quickly, cheaply and with as little formality as possible. The NCAT Member Code of Conduct also recognises that barriers such as disability, low literacy, language and cultural background may affect a person’s ability to present their case. However, these protections only help if the tenant can understand what is happening, access support and respond before the situation escalates. Where a tenant has no support person or advocate, the protections are much harder to use in practice.

A tenant who misses a hearing because they are unwell, hospitalised, or unable to give instructions technically has options. They may be able to seek a stay, apply to set aside orders, request an extension of time, provide medical evidence, or ask the Tribunal to consider whether a Guardian ad Litem is needed. However, each step requires someone to know what to do, prepare the documents, lodge them, pay the fee, communicate with NCAT, and act before enforcement occurs. For a tenant in crisis, that can be almost impossible without support.

Advocates often encounter vulnerable tenants whose problems have been developing for years before they become a legal crisis. A home may slowly deteriorate. A tenant’s health may decline. Hoarding or property care issues may worsen. Other people may move into the property, and the tenant may be unable to manage the situation safely. Arrears may accumulate while income, rental subsidies, Centrepay, or other payment issues remain unresolved. A tenant may lose work, have their hours reduced, become unwell, or be unable to meet Centrelink or employment services mutual obligation requirements because of illness, disability, or reduced capacity. A payment issue can become rent arrears, which can lead to termination proceedings, leaving the tenant trying to fix their income and save their tenancy at the same time.

By the time the matter reaches NCAT, the application may be framed as rent arrears, access, property care, or damage, and the landlord may seek to terminate the tenancy. However, the deeper issue may be that the tenant did not receive the much-needed support earlier to stabilise the tenancy, address risks, and prevent escalation to eviction.

If a tenancy ends in those circumstances, the consequences can extend beyond the loss of a home. A tenant may also face barriers in the private rental market if they are listed on a residential tenancy database. For a vulnerable tenant seeking another home after eviction, this can be an additional practical barrier to securing housing.

Social housing is sometimes seen as the ‘housing of last resort’ for people who cannot access or sustain private rental housing. If a vulnerable tenant loses social housing, the realistic alternatives are extremely limited. Temporary accommodation in NSW is short-term. Homes NSW states that most people can stay for a few days, with extensions available if needed. A separate Homes NSW policy states that emergency temporary accommodation may be available for up to three months to people who are not eligible for social housing but are experiencing a short-term housing crisis, and that this assistance is only available in extreme situations. Other pathways, such as transitional housing, refugee or supported accommodation, may exist for some people, but they are not immediate, guaranteed or available to everyone. Temporary accommodation is not secure housing, and without a realistic pathway into stable accommodation, vulnerable people are often at risk of homelessness after short-term crisis options have been exhausted. 

A former social housing tenant may also face barriers to future housing assistance. Homes NSW’s policy requires applicants to demonstrate they can sustain a successful tenancy, either without support or with appropriate support in place. This may involve assessing whether the person can manage rent and other tenancy-related costs, care for the property, manage personal care needs, and interact appropriately with neighbours and the community. This raises a difficult question: if a person is evicted from the ‘housing of last resort’ and their support needs are not identified or addressed early enough, where are they supposed to go next?

Similar issues can arise where housing and disability support arrangements overlap. A person may be at risk of losing their home while also being unclear about their legal rights to remain there. For example, Supported Independent Living (SIL) is often misunderstood as housing, but the National Disability Insurance Scheme (NDIS) describes SIL as support with daily tasks, not as the cost of housing. The NDIS separately identifies Specialist Disability Accommodation (SDA) as housing for participants with extreme functional impairment or very high support needs, and states that, except for SDA, it does not fund housing. NDIS guidelines also state that SIL does not include living costs unrelated to a person’s disability support needs, such as rent, board, utilities, or groceries.

This distinction matters because a person may receive support at home without the support provider being their landlord. In other cases, a provider, head tenant, company, or other entity may be connected to the lease or the right to occupy the property. If that arrangement breaks down, the people living in the property may not know whether they are tenants, sub-tenants, occupants, or have some other legal status. In some cases, the person with the most to lose may not even be named in the proceedings.

Mental illness and psychosocial disability can pose particular risks. A tenant experiencing serious depression, psychosis, trauma, anxiety, hoarding behaviours, or cognitive decline may appear “non-compliant”, when the issue may be that the person cannot manage the tenancy without support. Refusing access, avoiding correspondence, missing appointments, being unable to maintain the property, allowing unsafe occupants to remain, or falling behind on rent may all be treated as breaches of the tenancy agreement. However, they may also signal that the tenant’s capacity or support network has broken down. Treating these problems as simple non-compliance risks turning unmet support needs into homelessness.

In some cases, the landlord will pursue eviction. Before the tenancy reaches that crisis point, a safer approach could include a practical check on whether the tenant can meaningfully participate, whether disability or illness is affecting their capacity, whether meaningful support is in place, and whether there is a realistic pathway to prevent homelessness.

Practical safeguards could include three key steps...

First, vulnerable tenants should be referred to a Tenants Advice and Advocacy Service as early as possible, not only after eviction orders are issued.

Secondly, there needs to be a clearer pathway for situations where issues such as capacity, disability, mental illness, or possible exploitation may affect the tenancy. Referrals alone are insufficient if services operate in isolation. A holistic approach could include early referrals to appropriate supports, such as financial counselling, disability advocacy, health and mental health services, safeguarding where exploitation is suspected, and capacity-related support where needed. It should also include clear co-ordination so the tenant is not left to manage conflicting advice, repeated appointments, evidence requests, and urgent deadlines on their own.

Thirdly, clearer guidance is needed for provider-linked accommodation to prevent residents from being displaced before their legal status is properly understood. Where a service agreement, support arrangement, head lease or provider arrangement affects a person’s housing, there needs to be a clear pathway to identify who has the legal right to occupy the property, who is responsible for the tenancy, and what process must be followed before a resident is placed at risk of homelessness.

No single service can fix this alone. Housing providers are not health services. Tenant Advocates are not support co-ordinators. Health workers are not tenancy lawyers. However, each system needs to recognise when it is seeing only one part of the problem. A housing provider may see arrears. A support worker may see distress. A health service may see hospitalisation. A Tenant Advocate may see an urgent legal deadline. The tenant experiences all of this at once.

In these matters, it can be difficult to understand what is happening for the person based on the NCAT application alone. Procedural fairness is much harder to achieve if the person does not understand the process, cannot attend, cannot give instructions, or has no one able to help them respond before the risk of eviction becomes immediate.

Vulnerable tenants do not need a system that shifts responsibility away from them. They need a system that recognises when responsibility cannot be exercised without meaningful support.

A safe and secure home is a foundation that enables a person to stabilise, access treatment, engage with services, parent their children, manage disability, and regain control of their life. When that home is at risk, the question should not only be: has there been a tenancy breach? It should also be: what is happening here, who is supporting this person, and is there still a realistic pathway to prevent homelessness?