AMAZON and DEPARTMENT OF HOUSING

[2012] WASAT 11

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   AMAZON and DEPARTMENT OF HOUSING [2012] WASAT 11

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   22, 23 AND 24 NOVEMBER 2011

DELIVERED          :   23 JANUARY 2012

FILE NO/S:   EOA 2 of 2011

BETWEEN:   FELICITY AMAZON

Applicant

AND

DEPARTMENT OF HOUSING
Respondent

Catchwords:

Equal opportunity - Indirect discrimination - Impairment

Legislation:

Disability Discrimination Act 1992 (Cth), s 24, s 25
Equal Opportunity Act 1984 (WA), Pt IVA, s 66A, s 66A(3), s 66K, s 66K(1), s 66K(1)(b), s 66L, s 66L(1), s 66L(1)(b), s 66L(2), s 66L(2)(d), s 83(4), s 83(5), s 90

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Ms L Eddy

Solicitors:

Applicant:     Self-represented

Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

State of New South Wales v Amery [2006] HCA 14

Waters v Public Transport Corporation (1991) 173 CLR 349

Winter and Commissioner of Western Australian Police Service [2006] WASAT 87

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant, a resident of a property owned by the Department of Housing, brought a claim against the Department on the basis that she was discriminated against on the grounds of impairment.

2. Ms Amazon is a 61­year­old woman who suffers from medical conditions including Multiple Chemical Sensitivity, who has been living in Homeswest accommodation since 1995.  In 2006, she made applications for priority transfer from her Mosman Park residence to a property in Denmark and was granted a transfer to a recently constructed aged persons' unit in Denmark in May 2008.

3. Ms Amazon lodged a complaint with the Commissioner for Equal Opportunity alleging discrimination on the basis of impairment on three grounds:

   •Indirect discrimination in relation to the provision of accommodation with a condition that she accept accommodation in a newly constructed property, which she believed would aggravate her Multiple Chemical Sensitivity condition, or face loss of a priority position on the Department's waitlist.

   •Unlawful discrimination in relation to the Department's refusal of permission to make reasonable alterations to the Department's property to alleviate the symptoms of her illness.

   •Indirect discrimination by requiring her to live in accommodation provided by the Department without the requested alterations.

4. The Commission dismissed the complaint as lacking in substance, and at the applicant's request, referred the complaint to the Tribunal.

5. There was an issue as to whether Ms Amazon's complaint made in earlier May or June 2009, was within the requisite 12 months after the occurrence of the alleged discriminatory conduct.  The Tribunal found that the complaint was lodged on 18 May 2009.  The Tribunal then examined the evidence presented by Ms Amazon and the representatives of the Department.  In dealing with the first complaint, the Tribunal considered whether a condition was imposed by the Department in making an offer to Ms Amazon and found that no such condition was imposed.  There was no basis upon which to find that the third complaint could be made out as Ms Amazon did not meet the criteria set out by s 66L(2)(d) so as to render the respondent's action unlawful.  As to the third complaint the Tribunal concluded that no unreasonable condition had been imposed on her entitlement to live in the accommodation provided.  Accordingly, the application was dismissed.

Introduction

1. The applicant, Ms Amazon, alleges that the respondent, the Department of Housing (Department), discriminated against her on the ground of her impairment.  Ms Amazon has suffered from a myriad of medical conditions, most relevantly for present purposes, a condition known as Multiple Chemical Sensitivity (MCS).  The precise formulation of her discrimination complaint will be discussed below, but in broad terms she complains that the Department failed to recognise her disability, and therefore required her to live in unsuitable accommodation, and then refused to either carry out, or permit her to carry out, alterations which would have alleviated the symptoms which she suffered by reason (in her view) of certain characteristics of the accommodation with which she was provided.

2. Ms Amazon, through the Sussex Street Community Law Service Inc, (Sussex Street CLS) referred her complaints about the Department to the Commissioner for Equal Opportunity (Commissioner). The precise date on which the complaint was made to the Commissioner is a matter of some significance and will be discussed later in these reasons. It occurred either in May or June 2009. The Commissioner obtained a response from the Department and unsuccessfully attempted to conciliate the complaint. Thereafter, the Commissioner considered the documentation relating to the complaint and dismissed it as lacking in substance. Ms Amazon then requested that the Commissioner refer the complaint to the Tribunal pursuant to s 90 of the Equal Opportunity Act 1984 (WA) (EO Act). The matter was referred to the Tribunal on 17 January 2011 for inquiry.

The date of the complaint

1. The date upon which it can be said that Ms Amazon's complaint was lodged with the Commissioner assumes significance in this case because of s 83(4) of the EO Act.  That subsection requires that a complaint be lodged within 12 months after the date on which the contravention of the Act which is the subject of the complaint is alleged to have been committed.  In relation to one aspect of Ms Amazon's complaints, the respondent submitted that the conduct had occurred more than 12 months prior to the date of lodgement of the complaint and the Commissioner had not, in accordance with s 83(5) of the EO Act, accepted the complaint outside of the 12 month limitation.

2. It was further submitted that, in any event, the alleged discriminatory conduct had not been the subject of the referral by the Commissioner to the Tribunal.  It is now well accepted that a Commissioner's refusal to extend the time for making a complaint to her is not reviewable by the Tribunal, and that the Tribunal's jurisdiction is limited to the complaints referred to it by the Commissioner and cannot include matters which were not the subject of the complaint dealt with by the Commissioner, but are raised later in the proceedings before the Tribunal ­ see for example Winter and Commissioner of Western Australian Police Service [2006] WASAT 87.

3. By letter dated 14 May 2009, the Sussex Street CLS wrote, on behalf of Ms Amazon, to the Commissioner. The Commissioner's date stamp indicates that the letter was received on 18 May 2009. The letter made reference to Ms Amazon's suffering MCS and Fibromyalgia, and expressed the need, given Ms Amazon's living conditions, for urgent conciliation of claims both of indirect discrimination under s 24 and s 25 of the Disability Discrimination Act 1992 (Cth) (DD Act) and s 66K and s 66L of the EO Act. The letter advised that Ms Amazon had completed a statement as to her situation which would be provided to the Commissioner within two weeks. The letter continued:

   In the interest of advancing this matter, we request that the Commission accept this as a complaint for investigation on the basis that the statement will be provided shortly.

4. On 4 June 2009, the Commissioner replied to that letter.  She noted that reference had been made to both the DD Act and the EO Act, and pointed out that the Commission had no jurisdiction to deal with complaints under the former.  The letter continued 'This Commission is not able to consider whether the matters contained in your correspondence can be accepted as a complaint until it is confirmed that you would like to pursue a complaint in this jurisdiction'.

5. On 23 June 2009, the Sussex Street CLS wrote to the Commissioner enclosing Ms Amazon's detailed complaint statement (complaint statement).  The letter made no reference to the Commission's letter of 4 June 2009.

6. The question which now arises is whether, in the circumstances outlined above, Ms Amazon's complaint was made on 10 May 2009 or on 23 June 2009 when the details of the complaint were provided.

7. The letter of 23 June 2009 containing the detailed statement by Ms Amazon was, in effect, detailed particulars of the complaint outlined in Sussex Street CLS's letter of 14 May 2009.  Although that letter made reference to complaints under legislation over which the Commissioner had no jurisdiction, the matters which were the subject of the Commissioner's jurisdiction were identified.

8. The operation of s 83(4) is not affected by what was, in effect, a deferred acceptance of the complaint by the Commissioner, pending clarification of the legislative basis relied upon by Ms Amazon.  That subsection imposes a time limit on when a complaint must be 'lodged'.  The time limitation does not operate by reference to when the Commissioner 'accepts' the complaint.

9. I find, therefore, that the complaint was made to the Commissioner on the date upon which the letter was received at her office, namely 18 May 2009.

Discrimination on ground of impairment

1. Discrimination on the ground of a person's impairment is dealt with under Pt IVA of the EO Act.  As already mentioned, Ms Amazon identified her claims as arising under s 66K and s 66L of the EO Act.  Section 66K deals with discrimination on the ground of impairment in relation to the provision of goods, services or facilities and s 66L deals with discrimination on that ground in relation to accommodation.

2. Ms Amazon's claim is for what is generally referred to as indirect discrimination of being the type of discrimination referred to in s 66A(3).  That subsection provides:

   For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition ­ 

   (a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

3. Section 66K(1) provides:

   Goods, services and facilities

   (1)    It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s impairment ­ 

   (a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

   (b)in the terms or conditions on which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

   (c)in the manner in which the first­mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

4. Section 66L(1) and s 66L(2) provide:

   Accommodation

   (1)    It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's impairment ­ 

   (a)by refusing the other person's application for accommodation; or

   (b)in the terms or conditions on which accommodation is offered to the other person; or

   (c)by deferring the other person's application for accommodation or according to the other 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 another person on the ground of the other person’s impairment ­ 

   (a)by denying the other person access, or limiting the other person’s access, to any benefit associated with accommodation occupied by the other person; or

   (b)by evicting the other person from accommodation occupied by the other person; or

   (c)by subjecting the other person to any other detriment in relation to accommodation occupied by the other person; or

   (d)by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person where ­ 

   (i)that person has undertaken to restore the accommodation to its condition before alteration on leaving the accommodation; and

   (ii)in all the circumstances of the case it is likely that that person will perform the undertaking; and

   (iii)in all the circumstances of the case, the action required to restore the accommodation to its condition before alteration is reasonably practical; and

   (iv)the alteration does not necessitate alteration of the premises of any other occupier; and

   (v)the alteration is at that other person's own expense.

The applicant's claims

1. Ms Amazon's complaints in broad terms are set out above under the heading, Introduction.  It is, of course, necessary to formulate those complaints within the framework of the provisions of the EO Act which render discrimination unlawful in particular circumstances.  The possible bases of Ms Amazon's claims were helpfully identified by counsel for the respondent at the hearing, and the hearing proceeded on the basis of those formulations.  Three claims of discrimination were identified.

2. The first was a claim for indirect discrimination rendered unlawful by s 66L(1)(b).  That is that Ms Amazon was required to comply with the condition of the type described in s 66A(3) in relation to the provision of a facility or the provision of accommodation.  That condition was that she accept accommodation in a newly constructed property or face loss of priority on the respondent's priority list.

3. The second complaint was for unlawful discrimination under s 66L(2)(d) in that Ms Amazon alleges that she was refused permission to make reasonable alterations to the accommodation occupied by her which she considered necessary to ameliorate  health problems caused by her accommodation.

4. The third complaint is a claim for indirect discrimination by requiring the applicant to live in her accommodation in the condition in which it was, without the respondent making the changes necessary to ameliorate the applicant's health problems.  The third claim is formulated under s 66A(3) and s 66K(1)(b) and s 66L(1)(b).

The facts

1. As already mentioned, Ms Amazon suffers from a number of medical conditions.  In her detailed complaint statement which was provided to the Commissioner, and which was accepted as evidence in the hearing before the Tribunal, Ms Amazon described her disability as follows:

   1.I am a 61­year­old woman who suffers from chronic fatigue syndrome (CFS), which is also sometimes called Myalgic Encephalomyelitis, Multiple Chemical Sensitivities, Fibromyalgia, Morton's neuroma and Reynaud Disease.  These medical conditions are not yet fully understood, but research suggests that they are all interrelated …

   2.It is a multi­system problem with symptoms vary [sic] depending on the triggers.  The triggers can be internal or external.  I can be reacting to foods, perfumes or my own immune system which overreacts in an allergic way (due to an auto immune disorder).

   3.I also suffer from chronic low grade mercury poisoning and copper overload diagnosed in July 2002 by Igor Tabrizian.

   4.Mercury is a potent neurotoxin and disables the endocrine system which means that it disables, at different times or at the same time, the pituitary, the thyroid, pancreas, adrenals and ovaries.  It also binds to the haemoglobin in red blood cells and disables the oxygen carrying capacity.  It potentiates other diseases and disables the immune system and digestive system.  It blocks nerve impulses and interferes with normal brain processing including sleep patterns.  It often affects my body's ability to regulate temperature, so I usually register abnormally low body temperature, which can be made worse (lower) by exercise or even moderate movement or stress.  Being frequently below normal 'operating temperature' means my functioning is more arduous, exhausting and restricted.  This make [sic] my body more sensitive to chemicals because my endocrine system and immune system is already under strain.

2. In support of those comments, Ms Amazon provided various medical reports and other medical information concerning those conditions.  It is not necessary, for the purpose of the present proceedings, to make precise findings as to the nature of Ms Amazon's health conditions, nor as to the accuracy of the labels applied to her symptoms.  That is a matter upon which medical opinions may differ.  That is, however, of no moment because the respondent readily accepts as does the Tribunal, that the symptoms which Ms Amazon suffers amount to impairment for the purposes of the EO Act, and that there is no doubt that she does, in fact, suffer from those symptoms.  The question of the precise triggers for the various symptoms suffered by Ms Amazon, is, however, more problematic.  That is a matter to which I will return later in these reasons.

3. From November 1995 to 29 May 2008, Ms Amazon lived at accommodation provided by the respondent in Stirling Highway, Mosman Park.

4. From late 2006, Ms Amazon made several applications for a priority transfer.

5. In October 2006, she applied for a transfer to Denmark or Walpole being towns on the south coast of Western Australia.  She gave her reasons for wishing to move as:

   •Stress of urban living ­ various neighbours 'domestics' and uproars chronic.

   •     Need to live in a quieter space, (country) ­ connect with friends who have already moved to Denmark/Walpole outside Albany area!

   •     URBAN LIFE IS DETRIMENTAL to my HEALTH, overloads me.

   •     Most/many urban friends have gone (died, dying, nursing homes etc.) so I have little opportunity to socialise here in city ­ EXTREMELY LONELY AND OUT OF PLACE.

   •     Stairs are a huge burden that I now must acknowledge, rather than 'pushing myself' to exhaustion as in the past.

   •     Pets are an essential part of my support framework.

6. Priority was not granted in relation to that application, but Ms Amazon was placed on a general waiting list.

7. In early 2007, Ms Amazon sought a priority transfer to Port Hedland, to be near her son.  That application was supported by a letter from her doctor on the basis that the transfer would assist certain psychological issues.  In her complaint statement, Ms Amazon said that that application was ultimately refused, but the respondent's file contains a letter dated 22 January 2007 from Ms Amazon requesting that her application to transfer to Port Hedland be 'scrapped'.  In that letter, she seeks reconsideration of a transfer to Denmark.  It appears that, rather than the Port Headland application being refused, it was withdrawn.

8. On 7 March 2007, Ms Amazon wrote to the Albany office of the respondent advising that an appeal against the refusal to place her on the priority list for Denmark would not be pursued, but rather she would stay on the general waiting list.  In that letter, she said:

   I look forward to shifting into a single level non­urban house, which will reduce the stress load of [sic] me and my old dog, as soon as you can allocate it … .

9. During 2007, Ms Amazon continued to encounter significant medical problems, and sought assistance from a number of different doctors.  In September 2007, Ms Amazon commenced a further appeal against the decision to place her on the general list for accommodation in the Denmark area, rather than giving her priority.  In her appeal document, she stated that since her transfer to the Denmark area was approved, her condition had been more clearly recognised by her GP as Myalgic Encephalomyelitis and that she had realised that underlying mercury poisoning is aggravating and accelerating her deterioration.  She identified a number of problems associated with her accommodation in Mosman Park.  One was that, living in Mosman Park, she was constantly being exposed to pollution, including mercury, from car fumes.  Another was that she was stressed by noise from cars, rubbish bins and '3 am party goers'.  She complained that her neighbours were involved in 'frequent brawls' which trigger her anxiety and post traumatic stress.

1. At about the same time she provided a report from Dr Matthew John, a general practitioner, addressed to the respondent's Albany accommodation officer, Mr Rick Mantell.  That report identified her medical problems as including post traumatic stress disorder, Myalgic Encephalomyelitis, chronic fatigue syndrome and Rayaud's disease.  It continued:

   Her medical problems are exacerbated by car fumes/heavy metals … ongoing exposure to traffic fumes, living close to a busy highway has been affecting her physical and mental health adversely.  Poor ventilation, no open windows in wet areas, having to go up and down stairs to access bedroom/bathroom/kitchen/laundry/toilet etc has added to her fatigue.

   Housing in the country far away from a highway or busy road or any business emitting petrochemical fumes on a single level would be of benefit to her.

2. That application was successful and on 13 December 2007 the respondent wrote to Ms Amazon advising her that she had been included on the priority list for a ground floor apartment in Denmark.

3. On 15 February 2008, an officer of the Department emailed Ms Amazon advising her that the Department was currently building a complex consisting of five aged person's units in Denmark, that they were nearing completion, and that the respondent would be looking to offer one of those units to Ms Amazon upon their completion.

4. On 27 March 2008, Ms Amazon emailed the respondent with the following enquiry:

   Can you tell me please how green the new dwelling/s are?  Eg ­ electricity ­ Synergy ­ SmartPower?  Solar ­ orientation?  Solar HWS?  Solar energy cells?  Grey water plumbing?

   Are they brick and tile, rammed earth, straw bale construction?

   I would appreciate receiving your reply 'very soon' within the next two weeks.

5. On 16 April 2008 Ms Amazon sent an email seeking plans of the new premises to see whether her furniture would fit.  On 29 April 2008, she sent a further email saying:

   can you tell me please what level of formaldehyde fumes is present in the closed rooms of the new aged person's units built in Denmark?  or of any other house you may offer me there?

   As you know from my (medical) file, I currently suffer from Myalgic Encephalomyelitis, with MCS (multiple chemical sensitivities) and a safe/healthy house is crucial for me.  I would appreciate receiving your answer within the next weeks, which will enable me to make a more properly informed decision on any Homeswest offer … .

6. That request was apparently sent to the construction supervisor for a response.  On 5 May 2008, the Regional Works Project Officer, Mr Steven Nostrini replied to the enquiry.  He responded that there 'has been no chemical as such used on these premises' and that there should be no reason for concern at the presence of any chemical throughout the internal parts of the premises.  That response was provided to Ms Amazon.  In turn, she emailed the respondent referring to an article in the West Australian newspaper of 26 April 2008, which referred to concerns as to the presence of formaldehyde in imported building materials.  She repeated her request for information in the following way:

   Can you please tell me the exact (closed rooms measurement) level (ppb) of formaldehyde fumes as measured and reported by qualified person?

   I would appreciate receiving this advice before any tenancy decision can be made.

   I believe that existing airing (ventilation) and use of indoor plants (vegetation) can assist in 'de­gassing of sick buildings' … perhaps you know further details, or other possible remediation of this common modern­materials problems, but appreciating that, for me, jumping from the frying pan into the fryer is not a good idea!

7. Ms Maxwell, the respondent's officer dealing with the matter, referred the questions to Mr John Thompson, the Manager of Housing Services for the southern region with the respondent, and to Mr Nostrini and another person.  Mr Thompson in turn forwarded the enquiry to a Mr Steve Blower, the 'Manager Construction Country' with the respondent.  Mr Blower responded the next morning saying that no formaldehyde was used in the property and that 'there was some concern some time ago regarding the use of MDF however my understanding it was given the all clear and is used on buildings throughout Australia'.

8. In the meantime, on 5 May 2008, the respondent wrote to Ms Amazon formally offering the Denmark property to her, and calling for an answer within three days.  The letter advised that failure to respond would result in withdrawal of the application for accommodation.

9. Ms Amazon then contacted the office of her local member of parliament, Mr Colin Barnett.  As a result, contact was made with the respondent through Mr Barnett's office and an extension of time until 16 May 2008 was obtained for the response by Ms Amazon to the offer.

10. On Friday, 16 May 2008, Ms Nina Curtis, an Electoral Officer for Mr Barnett sent an email to Ms Louise Patterson, a Ministerial Liaison Officer with the respondent.  That email advised that Ms Amazon had 'loved' the property and decided to take it, having inspected it two days earlier.  The email advised that the cupboards needed sealing to their underneath surfaces and requested that if the respondent was unable to do that work, that it supply a sealant which Ms Amazon would then apply herself.  The email also suggested that the carpet would need to be removed but that Ms Amazon would arrange for that to take place.  It sought that a fixed bathroom window be altered so that it could be opened and that fly screens be installed.

11. Ms Amazon said, in her evidence, that Ms Curtis was not authorised to convey her acceptance of the property and that it was not accurate to say that she loved the property.  It would appear that Ms Curtis' email was forwarded to Mr Thompson at the Albany office of the respondent to arrange the details and respond to Ms Amazon's requests.

12. As a result of the email to the Albany office, Mr Thompson rang Ms Amazon.  There is a conflict in the evidence as to whether or not that telephone conversation took place on 16 May 2008, as Mr Thompson believes, or Monday, 19 May 2008, as Ms Amazon believes.

13. The email to the Albany office was, apparently sent at 10.42 am on 16 May 2008.  Mr Thompson's evidence was that, as soon as he received the email, he telephoned Ms Amazon.  He had two conversations with her that day.  In the first, he said that they discussed the issues of removing the carpets, providing an opening window to the bathroom, and sealing of the under surfaces of cupboards.  He said that, in that conversation, Ms Amazon requested an additional hour to consult Mr Barnett's office before providing a final answer.  In the second conversation, he said that Ms Amazon indicated that she would accept the property.

14. Ms Amazon's evidence was that there were two conversations between herself and Mr Thompson by telephone approximately one hour apart.  She was, however, quite firm in her recollection that it was on 19 May 2008, not on 16 May 2008.

15. At 2.35 pm on 19 May 2008, Ms Curtis sent an email to Ms Patterson advising that Ms Amazon would take the property in Denmark, and enquiring when she could move in.

16. I find that the phone calls during which the question of modifications to the Denmark property was discussed, and in which Ms Amazon advised of her acceptance, took place on 19 May 2008 and not 16 May 2008.  There are a number of reasons for that conclusion.

17. The first is that Ms Amazon is more likely to remember with precision the date of the conversations.  That is because the decision whether or not to accept the offer of accommodation was an extremely significant question in her mind.  In her submissions she referred to the events as 'life changing decisions'.

18. The second is that Mr Thompson's recollection of the conversations was initially vague.  In his oral evidence, he said that his recollection as to the particular modifications discussed only came back to him on hearing Ms Amazon's evidence earlier in the day.  Quite understandably, his recollection of a conversation some three years earlier, held in the general course of his work, was affected by the passage of time.  For the same reason, his recollection as to the precise timing of the telephone calls may be inaccurate.

19. Thirdly, his recollection as to the timing of the phone calls was initially imprecise.  He initially agreed with Ms Amazon's evidence that there were two telephone conversations on 19 May 2008.  When then asked as to when the conversations took place, he said that it was 'around mid­May' and then '16 May or thereabouts' and said that that recollection was based on the fact that rent commenced on 19 May 2008.  16 May 2008 was a Friday, and 19 May 2008, a Monday.  Either date is consistent with Mr Thompson's general recollection of the telephone calls.

20. Finally, Mr Thompson's ultimate conclusion that the telephone calls took place on 16 May 2008 was based on the fact that Ms Patterson sent the email to Ms Curtis at 10.42 am on 16 May 2008 saying that she had forwarded Ms Curtis' email to the Albany office and asked them to follow up.  He assumed therefore that he had received Ms Curtis' email at about the same time from Ms Patterson, and recollected following the matter up that same day.  It is quite possible that the email did not in fact come to Mr Thompson's attention until Monday, 19 May 2008.  If, by reason of some other duties on 16 May 2008, Mr Thompson did not see the email immediately, he may well not have rung Ms Amazon on 16 May 2008.  The fact that Ms Curtis emailed Ms Patterson at 2.35 pm on 19 May 2008 to confirm acceptance of the property is consistent with Ms Amazon's account that, between the two telephone discussions with Mr Thompson, she spoke to Ms Curtis and a decision was taken to accept the property.  If that had occurred on 16 May 2008, and it might have been expected that Ms Curtis would have sent an email later that day to Ms Patterson confirming the acceptance.

The first complaint

1. Ms Amazon's first complaint is that she was required to comply with a condition that she accept a newly constructed property or face losing her priority position in relation to accommodation in the Denmark area.  In order for that to amount to discrimination, it would be necessary that the condition be a condition with which a substantially higher proportion of persons who do not have Ms Amazon's impairments are able to comply, it must be unreasonable having regard to the circumstances of the case, and it must be a condition with which she was not able to comply - s 66A(3) of the EO Act. 

2. The respondent contended that it was not open to the Tribunal to deal with this complaint because it was made more than 12 months after the events, the subject of complaint.  It was that submission which gave rise to the requirement for the Tribunal to consider the precise time of Mr Thompson's conversations with Ms Amazon, and also the date upon which Ms Amazon lodged her complaint with the Commissioner.  That is because it is in the conversation with Mr Thompson that Ms Amazon claims the unreasonable condition that she take the new property was imposed.  Having concluded above that the conversation with Mr Thompson took place on 19 May 2008, and Ms Amazon's complaint was lodged with the Commission on 18 May 2009, the respondent's submission that the first complaint was out of time cannot be sustained. 

3. Before considering whether the requirements of s 66A(3)(a), (b) and (c) are met, it is first necessary, in this case, to determine whether or not the condition about which the applicant complains was in fact imposed.  That is a question in respect of which there was a conflict in the evidence of Ms Amazon and that of Mr Thompson. 

4. Ms Amazon said that when Mr Thompson telephoned her he said words to the effect:

   Are you taking it or not?  I have to know now.  It is finished, as is:  No flyscreens, no painting of any MDF, no removal of carpets, no opening bathroom window … you take it as it is or nothing at all.  If you decline this offer, you go right back on the waiting list, it could be years.  I don't know what or when there will be a vacancy, or if it would suit you better.  We are not altering anything for you.  We have very few properties in Denmark, only in two streets.  Vacancies rarely come up, people stay where they are.  If you refuse this offer, I don't see we can offer you anything else.  This is a reasonable, even a very good offer, a new construction.  We have nothing else for you.

5. Mr Thompson denied that the conversation was as asserted by Ms Amazon.  He said that during his conversations, he said to her that, if she did not want to accept the offer of accommodation that was fine, that he would accept her decline of the offer as valid and she would be made an offer of an older property at a later date.  He accepted that he did say to her that turnover in the area was extremely low and that she may have to wait a significant period before another offer was made.  Mr Thompson said that there was, at the time, very limited public housing stock available in Denmark. 

6. The evidence given by Mr Thompson to that effect at the hearing was consistent with an assertion made by him in a letter to Sussex Street CLS of 29 January 2009 responding to a letter from Sussex Street CLS requesting, on Ms Amazon's behalf, certain modifications to the premises. 

7. The critical point of difference between the respective versions of the conversations of 19 May 2008, is whether Mr Thompson said that, if Ms Amazon were to decline the Denmark property, he would accept her reasons for doing so as valid.  The significance of that comment is that, if the reasons were accepted as valid, Ms Amazon would remain on the priority list.  Ms Amazon's version of events was that were she to decline the property for the reasons stated, she would lose her place on the priority list. 

8. I am not satisfied that Ms Amazon has discharged the burden which she bears of proving that Mr Thompson said that she would lose priority if she did not accept the offer of accommodation.  During her questioning of Mr Thompson at the hearing, Ms Amazon herself suggested that she may have, or must have, misunderstood what Mr Thompson was saying.  It is also very significant that Mr Thompson made it very clear that if the offer was not accepted it may be some considerable time before another property, which may or may not be suitable, became available in Denmark.  I accept (and it was not otherwise significantly contended), that as a fact, there was at the time a very limited amount of housing stock available in Denmark, and apart from the new units being constructed, there was very little in the way of seniors' accommodation for which Ms Amazon was qualified.  I accept, therefore, that the effect of Mr Thompson's comments was that, if the offer was not accepted, Ms Amazon was likely to face a long delay in an alternative offer being made.  Undoubtedly, Ms Amazon's anxiety to move from her accommodation in Mosman Park (with its apparently increasingly detrimental effect on her health) resulted in pressure for her to accept the Denmark offer, notwithstanding her concerns about aspects of the new construction.  That pressure did not, however, in my view, arise because of any unreasonable condition based upon her acceptance of the offer, but rather because of the simple state of fact that alternative accommodation would not be available in the Denmark area for an extended time.

9. Ms Amazon suggested that there was one older property available in Brazier Street, Denmark which could have been offered to her.  However, Mr Thompson explained that, at the relevant time, that property was earmarked for demolition as part of a departmental stock replacement programme.  It was subsequently demolished and redeveloped in accordance with that programme.  I therefore do not accept that there was other stock available in Denmark that might have been offered to Ms Amazon at the relevant time.

10. It follows that Ms Amazon's first complaint must be dismissed on the basis of my finding that the condition about which complaint is made, was not imposed upon Ms Amazon's acceptance of the offer of accommodation.

The second complaint

1. Ms Amazon's second complaint is that she was refused permission to make reasonable alterations to the accommodation contrary to s 66L(2)(d).

2. Requests for alterations were made by Ms Amazon on a number of occasions. 

3. In Ms Curtis' email to Ms Patterson of 16 May 2008, requests were made in the following terms:

   Cupboards need sealing underneath surfaces - kitchen and bathroom.  If HomesWest can't do, can they supply the sealant - shellac has been suggested - and she will do herself.

   The carpet will probably have to be removed but Ms Amazon will arrange - just needs permission if removal is necessary.

   Bathroom window is fixed - cannot be opened - can this be fixed.

   Flyscreens - there aren't any - is it possible to install.

4. That email preceded Mr Thompson's telephone conversation with Ms Amazon, and we accept Ms Amazon's evidence that, apart from the flyscreens, Mr Thompson indicated that the work would not be done.

5. A further request was made by letter from Sussex Street CLS to Mr Thompson on 8 December 2008.  By that time, of course, Ms Amazon had been in possession of the premises for some seven months.  In that letter the following request for alterations to the premises was made:

   Ms Amazon is seeking the following adjustments to the premises:

   •the installation of skylights to facilitate the growth of indoor plants;

   •the installation of roof ventilators to facilitate air filtration;

   •the installation of a functioning window in the bathroom (the current window does not open);

   •formal permission to grow an organic vegetable garden at the front of the premises; and

   •removal or sealing of any medium density fibreboard surfaces (as such surfaces contain formaldehyde); and

   •the provision of an air purifier.

   Ms Amazon has already made a number of minor alterations to the premises in order to make it more habitable.  Accordingly, Ms Amazon is seeking to have the costs and expenses incurred by her in making these adjustments reimbursed by the Department.

6. It is clear from the respondent's file that that letter was dealt with by referral to appropriate officers to consider the requests made in the correspondence.  Those communications resulted in an appointment being made for a Housing Services Officer to visit Ms Amazon in January 2009 to discuss the various items raised in the correspondence. 

7. Eventually, by letter dated 29 January 2009, Mr Thompson responded to Sussex Street CLS.  The requests for alterations were declined save that by then, a garden had already been established and it was permitted to remain, and there was no objection to the provision of an air filter at Ms Amazon's own expense.  It can be noted that all other requests for works were to be done at the expense of the Department. 

8. Ms Amazon then engaged the services of the Albany Community Law Centre Inc (Albany CLC).  On 22 January 2009, the Albany CLC wrote to Mr Ken Carter, the Albany Regional Manager of the respondent.  That letter repeated the request for alterations made in the Sussex Street CLS letter of 8 December 2008. 

9. On 9 April 2009, Sussex Street CLS wrote again to Mr Thompson foreshadowing a claim under the EO Act and the DD Act.  That letter made further complaints about the failure to make various alterations, including altering the bathroom window and, by inference, failing to seal the exposed edges of MDF. 

10. Section 66L(2)(d) of the EO Act makes it unlawful for a person to refuse to permit another person to make reasonable alterations to accommodation where five requirements are met.  One of those requirements is that the person seeking to make the alterations must have undertaken to restore the accommodation to its condition before alteration on leaving the accommodation.  Nowhere in any of the requests for alterations made by Ms Amazon does any such undertaking appear.  A further requirement is that the alteration must be undertaken at the person's own expense.  Although Ms Curtis' email of 16 May 2008 refers to Ms Amazon doing the sealing of underneath the surfaces of cupboards herself, it requests that the respondent provide the sealant.  It was therefore not a request to undertake work entirely at Ms Amazon's own expense.  The email also refers to Ms Amazon arranging removal of the carpet.  Whilst that appears to be a request to carry out an alteration at Ms Amazon's own expense, in the absence of an undertaking to restore the carpet upon leaving the accommodation, the refusal of the request does not satisfy the requirements of s 66L(2)(d) so as to make the refusal unlawful. 

1. The subsequent requests for alterations referred to above were all made in the context that the work should be done at the expense of the respondent.  Refusal of those requests do not therefore constitute unlawful activity for the purposes of s 66L(2)(d) of the EO Act.

The third complaint

1. Ms Amazon's third complaint is a claim for indirect discrimination by requiring her to live in accommodation in the condition in which it was without the respondent carrying out the alterations requested.  Ms Amazon expressed this claim as requiring her to live in a house which was unsafe given her impairment. 

2. The first thing to be considered in relation to this claim is whether it fits within the framework of discrimination of the type described in s 66L and s 66A of the EO Act.  This can only be done if the requirement to live in a house in its unaltered state is a 'term or condition on which accommodation is offered' (s 66L(1)(b)), being a requirement or condition of the type described in s 66A(3) of the EO Act. 

3. Courts and tribunals have taken a liberal approach to the interpretation of 'requirement or condition' in equal opportunity legislation.  It should be given a broad rather than a technical meaning:  Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) per Dawson and Toohey JJ at 393; State of New SouthWales v Amery [2006] HCA 14 per Gummow, Hayne and Crennan JJ at [63].

4. A person providing goods or services should be regarded, in the context of equal opportunity legislation, as imposing a requirement or condition 'when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed':  Waters (above) per McHugh J at 407.

5. It might be said that Ms Amazon's real complaint is that the Department was not as responsive to her concerns, and her requests to accommodate those concerns as they should have been, rather than that the respondent imposed a requirement or condition that she reside in an unsafe house.  For present purposes, and having regard to the passages from Waters referred to above, I am prepared to accept that failure of the respondent to recognise and respond to the nature of Ms Amazon's impairment, may amount to requiring her to comply with a requirement or condition of the nature described in s 66A.  However, even if the failure to carry out alterations can be said to be requiring Ms Amazon to comply with a condition that she live in a house which was unsuitable, I have concluded that the condition does not meet the requirements of s 66A(3) so as to render that failure discrimination. 

6. The various matters which Ms Amazon identified as requiring attention by the respondent are discussed above in relation to the second complaint.  Those matters were most comprehensively set out in Sussex Street CLS' letter of 8 December 2008.  Of those six items, the installation of skylights and roof ventilators were not pursued in the complaint to the Commissioner, the vegetable garden was in fact permitted, as was the air purifier, so that the two possible areas of complaint related to the provision of an opening bathroom window, and the sealing of unsealed fibreboard (or MBF) surfaces.

7. To succeed in her third complaint, Ms Amazon must establish that the requirement for her to live in a house without those works being done was not reasonable having regard to the circumstances and was a requirement with which she was not able (presumably without damage to her health) to comply - s 66A(3)(b) and (c) of the EO Act.

8. At the time Ms Amazon moved into the Denmark property in May 2008, there was very little evidence before the respondent as to the nature of her condition and the special accommodation needs which she had.  I have set out above in some detail, under the heading 'The facts', the various communications between Ms Amazon and the respondent concerning her accommodation requirements.  It can be seen that the focus of the concerns expressed by her prior to May 2008, was on the detrimental effects of urban living, and the need for a single level property.  It is true that the report from Dr John, the contents of which are referred to above, provided to the Department in 2007, made reference to poor ventilation and a lack of open windows in wet areas.  That letter did, however, conclude with a suggestion of housing within a country area, away from busy roads and on a single level as being of benefit to her.

9. At the time that Mr Thompson dealt with Ms Amazon, he was not aware of the observation in Dr John's report concerning a lack of open windows to wet areas.  His response to that request, at the initial stage when the property was being offered, was that the bathroom was ventilated with an exhaust fan, and the Department did not, and had not for some considerable time, provided opening windows to bathrooms for security reasons.  In the context of the focus of Ms Amazon's concerns at the time, I do not consider that the respondent's response to the request could be said to be unreasonable.  It needs to be borne in mind that the Department had in fact granted priority to Ms Amazon in order to address her concerns arising from her impairment.

10. Nor do I consider the failure to seal exposed MDF surfaces can be said to be unreasonable.  When the matter was first drawn to the attention of the Department by Ms Amazon, shortly before she accepted the offer of the Denmark property, the respondent made enquires of those involved in the property's construction, as to the risk of formaldehyde being present in the property.  Mr Nostrini, who responded to that enquiry, was not aware, at the time, of the presence of formaldehyde in MDF.  Undoubtedly, if more thorough inquiry had been made, more information might have been obtained.  Ms Amazon acknowledges herself, however, that the state of medical knowledge, and her own knowledge, the nature of her conditions, and the triggers to symptoms, has increased markedly over recent years.  This is not a case where the respondent simply dismissed Ms Amazon's complaints out of hand, or ignored them, but rather made enquiry as to the appropriate course in relation to her requests.  There was, however, a very limited amount of reliable evidence upon which the respondent might have acted.  In my view, its response was not unreasonable.  As the respondent submitted, it is a public authority which must be accountable for the expenditure of public money.  The requests by Ms Amazon were treated seriously and given consideration.  It might now be said that, with the benefit of hindsight, the decisions taken were wrong.  In my view, having regard to the inquiries which were made, the evidence then available as to the nature of Ms Amazon’s health condition, and the at best uncertain connection between her condition and the particular triggers to her symptoms, the respondent’s response to her requests was not unreasonable.

11. That remained the case even after further representations were made.  Ultimately, of course, Ms Amazon was provided with new accommodation in a different area, and her symptoms subsequently significantly improved.  If there is a criticism to be made of the respondent, it is that it took longer than it should have to act on the concerns being expressed by Ms Amazon.  Having regard to the requirement, in the expenditure of public monies, for the respondent to obtain sufficient information for it to act on requests, I do not consider that the responses by the Department can be said, in this case, to have been unreasonable given the circumstances applying at the time.

12. A further difficulty which Ms Amazon faced in relation to her third complaint is making the connection between the symptoms which she undoubtedly suffered from during her time at the Denmark property, and the particular alterations which she claims should have been made to the premises.  Ms Amazon suffered serious and worsening problems while living in Mosman Park.  Her problems apparently became worse after she moved to the Denmark property.  Whether, the provision of an opening bathroom window, or the sealing of MDF surfaces, might have avoided or removed symptoms remains a matter of speculation.  Given the complexity of Ms Amazon's condition, she inevitably faced difficulty in discharging her burden of proving that the failures by the respondent to perform certain alterations to the property had a causal connection to her symptoms.  I am not satisfied that she discharged that burden.

13. For those reasons, I am of the view that the third complaint must also be dismissed.

Conclusion

1. Ms Amazon undoubtedly suffered significant problems with her health while living at the Denmark property.  Her frustration at what she saw as a failure by the respondent to adequately respond to her complaints is quite understandable.  For the reasons discussed above, however, those perceived failures do not, in my view, constitute unlawful discrimination for the purposes of the EO Act.

2. Subsequent to the completion of the hearing, the Tribunal received a letter from Ms Amazon advising that she had been diagnosed with a serious medical condition.  It was not made clear whether Ms Amazon was inviting the Tribunal to bring that to account in its consideration of her claims.  The new information is not material to the Tribunal's evaluation of the character of the conduct of the respondent and has thus has not been taken into account in reaching these conclusions.  For the reasons explained above, the application must be dismissed.

Orders

1.The application is dismissed.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT