Shaping the AHO Common Terms and Conditions Agreement templates using ACHP sector feedback
Overview
In May 2024, the Aboriginal Housing Office (AHO) released version 2 of the Common Terms and Conditions (CTC) Agreement templates to the sector.
The document pack included:
- Agreement for Lease – AHO Final Draft 030524_PDF
- Concurrent Lease – AHO Final Draft 030524_PDF
A range of concerns were expressed by the sector and were identified by Aboriginal Community Housing Industry Association (ACHIA) NSW. To support the Aboriginal Community Housing Sector’s (the Sector’s) position, ACHIA NSW engaged independent legal expertise to complete an extensive review and comparative analysis of the original AHO Contract Terms as outlined in version 1 documents, and the updated version 2 documents.
Additionally, ACHIA NSW has sought to understand lessons learned by the mainstream Community Housing Provider (CHP) sector as they worked through similar contract negotiations over the past 2-3 years with the support of CHIA NSW.
ACHIA NSW – ACHP Sector Consultations
The legal advice and resources provided to ACHIA NSW were shared with Aboriginal Community Housing Providers (ACHPs) via email on 18 June 2024 to inform the consultation. Following this, two online consultation meetings were facilitated by ACHIA NSW with ACHP CEO’s and senior staff on 25 June 2024 and 2 July 2024 respectively.
The consultations undertaken by ACHIA NSW enabled us to ascertain the following:
- ACHP awareness of the terms and conditions included in the documents which included – but were not limited to – the risks, rewards, expectations and sense of mutuality embedded in these;
- how a ‘level playing field’ is best afforded to ACHPs providing regulated community housing services to support NSW government outcomes in comparison to the mainstream CHP sector by the proposed documents;
- areas of concern related to negotiating with AHO about the terms and conditions contained in the Agreement for Lease and Concurrent Lease; and
- what sort of additional information and support ACHPs require to make an informed decision to enter a partnership with AHO that strengthens Aboriginal families and communities in line with the precepts expressed in:
- ‘Strong Family, Strong Communities’; and
- the National Agreement on Closing the Gap, Clauses 55a and 55b, and in light of the work being done progressively on the Priority Reform Areas, reports from CAPO which so far include ‘Priority Reform 1.3 Report of Preliminary Findings ‘, in working within the spirit of shared decision making.
AHO Contract Briefing Sessions
ACHPs and ACHIA NSW were invited to discuss the changes to the template agreements made in version 2 documents at briefing sessions with AHO on:
- 18 June 2024 – Parramatta
- 3 July 2024 – Dubbo
- 25 July – Coffs Harbour
AHO provided a list of questions ‘on notice’ post the Dubbo and Coffs Harbour briefing session. AHO have expressed a commitment to address the questions raised. AHO then also held a number of online and ‘as requested’ briefing sessions for ACHPs throughout August 2024.
Platform sought through contractual review
A collaborative approach engages ACHPs as partners in the process of negotiating future contract terms. This approach ensures a stronger and more capable sector is realised and the future vision of the partnership encompasses the potential of the sector.
It is understood that a balance must be struck between:
(a) value for money in the aim to achieve NSW government social housing outcomes;
(b) effective management of government assets, regulatory compliance and specific tenant; and
(c) community outcomes in the delivery of services to communities.
The CTC Agreement documents must shore up the above balance.
To get the best outcomes for AHO, ACHPs and communities, ACHIA NSW is committed to leaning in to ensure that the value base articulated in the Principles section of the Agreement is consistent with the terms and conditions included in the document set.
The LAHC (Homes NSW) contract with CHPs embraces inviting proposals to vary the Agreement to enable improved cost effectiveness and performance outcomes. Similarly, ACHPs need to be able to propose variations to the Agreement that will provide opportunities for more and better housing in communities. Acknowledging and harnessing of ‘on the ground’ knowledge and engaging ACHPs in a structured way, as proposed, will create a significantly more engaged sector working collaboratively into the future on housing solutions for their communities.
Furthermore, we believe that the following issues overall deserve closer consideration:
- that risk management is a shared responsibility and supports outcomes to be achieved by both parties;
- that we must aim for contract consistency and standardisation to support dealings that are fair and reasonable to all ACHPs, tenants and the AHO on behalf of the NSW government;
- that aligning AHO contract management outcomes to NRSCH reporting requirements will simplify and reduce the compliance burden for ACHPs;
- that ongoing management of aging assets is an issue which requires ongoing management;
- that while insuring government assets is a central deliverable, that AHO facilitate the act of insuring a government asset through the contracting arrangements that allows ACHPs flexibility to utilise, compare and choose between competitive insurance market products;
- that allowing ACHPs to propose innovative housing models will enable capability in the sector more broadly, while sustaining AHO and NSW government objectives; and
- that ACHPs are enabled to gain market advantage by leveraging government assets to create more and better housing for both parties.
Operational Aspects to Agreement
The CTC Agreement documents have several operational and KPI-related obligations that could be better addressed by referring to the Performance Management Framework (PMF) or relevant policy framework as prescribed by AHO.
Some policy issues were raised by ACHPs. These included:
- Rent Policy: $5 rent is a burden to ACHPs who have no other recourse i.e. a small property portfolio = big problem.
- Rent Calculator: The Rent Calculator appears to be used as a management tool. There is concern across the sector regarding the significant tenant/household data required by AHO for rent review purposes. It was further noted that this approach is inconsistent with the Department of Communities and Justice (DCJ) model (administered by CHIA NSW) for managing rent calculations.
ACHIA NSW facilitate a way for the AHO to co-design updated policies with the sector that are fit for purpose, thereby ensuring suitable outcomes with AHO for ACHPs.
ACHIA NSW is committed to working alongside ACHPs and AHO to finalise a contractual framework that supports the realisation of these opportunities and outcomes.
The pages following outline legal consideration of the issues arising, which ACHIA have commissioned and then passed on to ACHPs. ACHP feedback has further illuminated issues and these are also presented.
