Jacobson, Susannah Sage --- "Elder law, elder abuse and housing" [2009] ALRCRefJl 36; (2009) 94 Australian Law Reform Commission Reform Journal 31

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Reform Issue 94 Summer 2009

This article appears on pages 31–33 of the original journal.

Elder law, elder abuse and housing

By Susannah Sage Jacobson*

Access to housing is a basic human right. For older Australians, secure accommodation, both in terms of personal security and tenure, is particularly important.^[1]

According to the Australian Bureau of Statistics (ABS) the number of Australians aged 65 or older will reach 26% of the population by 2051. In real figures this will mean nearly eight million older Australians, more than double the current demographic.^[2] As such it is increasingly important that legal policy makers specifically consider the relevance of elder law and the impact on older persons of all law reform initiatives.

Housing law and policy are of particular relevance to older people, but the law reform priorities are perhaps different than one may think. Contrary to views that issues around aged-care accommodation and retirement village regulation are of central concern, statistics released earlier this decade on living arrangements for older Australians tell a different story. The reality is that in Australia 77% of older people live in private dwellings in the community, with 20% of these living in family households incorporating children, other relatives or friends, and only 6% living in assistance accommodation.^[3] These figures suggest that quite different issues regarding housing security are of paramount concern to older Australians.

This article sets out these priorities and highlights the strong link between elder law, elder abuse and housing.

Housing and accommodation security

The legal issues commonly arising for older Australians in relation to housing may be summarised by reference to their personal accommodation situations.

Home ownership

Those older people in the community lucky enough to own their own home are unfortunately not immune to housing related legal issues. The vast majority of older people living in private dwellings in the community face the predicament of being asset rich and cash poor and struggle to maintain their financial independence. Over the past 10 years, a modest home in many Australian capital cities has become a significant asset in financial terms, however this has not translated to disposable income for most older Australians. The financial burden of maintenance and rates on their homes, as well as the need for services such as home care have resulted in the increased need for older people to become involved in complex financial arrangements such as reverse mortgages or family agreements. Overall, financial hardship also limits access to legal advice and assistance should problems arise. Home ownership also often results in older people sharing accommodation with dependent adult family members, often giving rise to grandparenting issues and the risk of elder abuse.

Retirement villages and owners’ corporations

Similarly, older persons resident in private retirement villages or properties managed by owners’ corporations may face similar concerns to those in private independent dwellings. The buy-in costs, depreciation and maintenance issues and potential for complex management arrangements compound the financial hardship. The potential for neighbourhood disputes and harassment in these accommodation options is also increased, particularly where residents may be managing age-related health disorders—such as dementia or depression—that can result in anti-social behaviours.

Rental, shared accommodation and non-private dwellings

Older people face tenancy issues similar to all tenants who may be disabled, disadvantaged or in financial hardship. Older people resident in boarding and rooming houses or caravan parks may be particularly vulnerable to financial exploitation, sub-standard services, eviction and co-tenant disputes and harassment.

Public and community housing

Similar to residents in retirement villages and owners’ corporations, public and community housing tenants face issues relating to high-density living for older people. Notably at the 2001 Census, older tenants comprised approximately 29% of all public housing tenancies, with 48% of these tenants being 75 years of age and older. Commonly these residents may face increased financial hardship and higher incidence of neighbourhood disputes and harassment.

Aged care and independent living units

Residents in aged-care accommodation face particular issues at entry, such as the need to navigate complex agreements and ongoing costs that can give rise to financial hardship. Although there is regulation of this sector,^[4] residents may also face vulnerability to elder abuse and sub-standards services, particularly if they reside in independent living units.

Homelessness

Finally, it has been estimated that 250,000 people across Australia over the age of 60 are homeless or at risk of homelessness.^[5] There are a number of risk factors for homelessness among older people in our community including:

• lack of suitable housing and housing stress;

• financial pressures;

• inadequate income support;

• poor physical and mental health;

• major life changes such as death of a partner;

• family relationship breakdowns; and

• elder abuse.

In summary, across all the living arrangements and accommodation options listed above, all older people face vulnerability to financial hardship and the risk of elder abuse.

Elder abuse

Elder abuse, as defined by the World Health Organisation, is ‘a single or repeated act or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.^[6] As such, elder abuse may constitute any knowing, intentional, or negligent act by a caregiver or any other person that causes harm (physical, psychological, financial or social) or a serious risk of harm to an older person, where the older person and the perpetrator are in a relationship involving trust, dependency or proximity.^[7]

Although is it difficult to establish meaningful figures regarding the rate of elder abuse in the community, ABS data shows that one in five people experiencing physical abuse within an intimate partnership are over 55.^[8] This figure is reflected in studies conducted both in Australia and overseas which have found that 4–10% of people referred to aged-care services are victims of some form of abuse.^[9] There are further estimates which indicate that 3–5% of all people over the age of 65 who are living in the community suffer from some form of abuse.^[10] The most prevalent form of elder abuse is that of financial abuse. This form of elder abuse arguably has the greatest potential to impact on an older person’s living arrangements.

There are some legal remedies available to older people who have experienced incidents of elder abuse, but older people are often not able to access legal assistance for financial reasons or choose not to pursue these avenues of assistance for a range of social and cultural reasons. The reasons for this lack of action are complex and varied. However, it may often be that the older person is reliant on the perpetrator for care and assistance and may not want to upset the relationship.^[11] As such the older person may see greater value in maintaining the status quo than facing the possibility of damaging the relationship or displacement where accommodation is concerned.

Research has shown that 90% of elder abuse is committed by family members. There are significant indicators of financial dependency as well as dependency in relation to housing, transport and care. A significant number of perpetrators of abuse have similar issues regarding social isolation or lack of community support to the older person and are also often under severe financial stress. Overwhelmingly, the consequences of elder abuse for the victim are extremely serious, placing their living arrangements, personal circumstances, financial, physical and mental health in jeopardy. It is for this reason that victims of elder abuse are also at significant risk of accommodation insecurity or even homelessness.

Law reform priorities

Efforts to address the issue of elder abuse are actively being undertaken across all levels of government at both the state and federal level as well as by the not-for-profit sector. Many of these measures centre around community education campaigns on elder abuse and the rights of older people and also support for increased access to specialised legal services for older persons.^[12] Human rights law has also been identified as a potential tool for combating elder abuse in jurisdictions where human rights legislation has been enacted, such as Victoria. Submissions to the recent National Human Rights Consultation have highlighted the benefits of a Commonwealth Human Rights Act in protecting older people from elder abuse.

The 2007 Commonwealth Parliamentary Report on Older People and the Law identified law reform priorities in the areas of guardianship and administration and discrimination law and retirement village regulation to protect vulnerable older people, and recommended reducing the barriers to accessing legal services.^[13] The Commonwealth has not yet responded to the recommendations in this report.

At the state level, some initiatives in these areas of law are being taken. For example, in Victoria the laws surrounding powers of attorney and guardianship and administration are being reviewed with a view to ensuring vulnerable older people are adequately protected and that adequate remedies are available against perpetrators of elder abuse.^[14]

Conclusion

This article has sought to highlight the link between housing and accommodation security for older people and elder abuse in our community. Not only are the housing arrangements of older people a causal indicator of elder abuse, but the identification and recognition of elder abuse necessarily involves consideration of the impacts on accommodation. The strength of this relationship means that the law reform priorities for ensuring older people maintain secure housing are similar to measures suggested to prevent and address elder abuse. In addition to the basic need to alleviate financial hardship, and increase access to legal services among older people, strengthening human rights, power of attorney, guardianship and administration law to protect vulnerable older people are all measures that ultimately also strengthen their housing security.

* Susannah Sage Jacobson is the Manager/Principal Lawyer of the Seniors Rights Legal Clinic, Public Interest Law Clearing House (Vic).

The author thanks Dahni Houseman, Seniors Rights Policy Officer, for assistance in drafting this article.

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[1] House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law, 2007, [7.1].

[2] C Adler & S Sage Jacobson, ‘Seniors Rights Victoria: Working to Stop Abuse of the Elderly’, 2008 Parity 21, 13.

[3] B Herd, ‘The Family Agreement: A Collision Between Love and the Law?’ 2002 Reform 81, 23.

[4] See Aged Care Act 1997 (Cth).

[5] C Adler & S Sage Jacobson, ‘Seniors Rights Victoria: Working to Stop Abuse of the Elderly’, 2008 Parity 21, 13.

[6] World Health Organisation, A Global Response to Elder Abuse and Neglect, 2008, Geneva.

[7] D Houseman, Recognising the Rights of Older Australians: Submission to the National Human Rights Consultation, 2008, Seniors Rights Victoria, [7.3.2].

[8] C Adler & S Sage Jacobson, ‘Seniors Rights Victoria: Working to Stop Abuse of the Elderly’, 2008 Parity 21, 13.

[9] Ibid.

[10] Ibid.

[11] R Munro, ‘Elder Abuse and Legal Remedies: Practical Realities?’ 2002 Reform 81, 42.

[12] For example for further information on initiatives in Victoria, see <www.seniorsrights.org.au>.

[13] House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law, 2007.

[14] See information on the Victorian Law Reform Commission’s Guardianship Inquiry, which commenced on 19 June 2009, available at <www.lawreform.vic.gov.au>.