On or about 19 July 1999 the applicant obtained from the respondents a secure tenancy of a house in Edinburgh. She was in occupation of it on 3 April 2000 when she applied to purchase it under the provisions of the Housing (Scotland) Act 1987. The landlords refused on the basis that she did not fulfil the criteria set out in section 61(2)(c) of the Act. The applicant accordingly made the present application under section 68(4).
Section 61 gives a right to certain tenants to purchase their house where certain conditions apply. The criterion in issue in this case is set out in subsection (2)(c) in the following terms:
"(c) immediately prior to the date of service of an application to purchase, the tenant has been for not less than 2 years in occupation of a house (including accommodation provided as mentioned in subsection (11)(n)) or of a succession of houses provided by any persons mentioned in subsection (11)".
The pleadings disclosed no significant dispute of fact and this was confirmed when a joint minute in commendably clear terms was lodged setting out the parties' agreement that the applicant had been in occupation of houses provided by persons referred to in said subsection (11) from:
It was also agreed that the applicant was not in occupation of a house or succession of houses provided by any relevant persons during the periods from:
From this it can be seen that although the applicant had been in occupation of different houses provided by defined persons for a total of more than two years before the date of application, she had not been in continuous occupation of such houses throughout the two year period prior to application. The issue between the parties turned entirely on the proper interpretation of section 61(2)(c) as applied to these circumstances.
Miss Mair for the applicant contended that as the Act did not use the word "continuous" there was no justification for including it by implication. She founded strongly on this in submission and in response to Mr Clayson.
She also pointed out that the Act had originally made express provision for interruption of occupation. Section 61(10)(b) was enacted in the following terms:
(b) for the purpose of determining the period of occupation -
(i) any interruption in occupation of 12 months or less shall be regarded as not affecting continuity; and
(ii) any interruption in occupation of more than 12 months and less than 24 months may at the discretion of the landlord be regarded as not affecting continuity."
She explained that these provisions had been repealed by the Leasehold Reform, Housing and Urban Development Act 1993. There was no relevant additional provision to replace them. Without such provision there was nothing to justify any implication of continuity.
Support was also sought from the terms of a booklet "Your Right to Buy your Home" published by the Scottish Office with a reference date 12/98. That publication specified as a main requirement of the Right to Buy that the applicant "must normally have spent a total of at least 2 years as a tenant in publicly provided accommodation". Miss Mair acknowledged that, of course, this publication had no authoritative status. It was simply an indication of a line of official interpretation.
Further, the purpose of the Act was to give tenants a right to purchase their homes. She submitted that having a high level of criteria would be at odds with the purpose. She referred to a dictum of Lord Diplock in R v National Insurance Commissioner ex p. Hudson 1972 AC 944 at 1005 for the proposition that a meticulous linguistic analysis should be subordinate to a purposive approach.
In any event, she submitted, a requirement of continuous occupation could give rise to manifest unfairness. If, for example, a lengthy occupation was interrupted by fire damage and the tenant sought temporary refuge with relatives, even a short break in continuity would defeat the right to buy if the respondents' position was correct. This could not have been intended.
For the respondents, Mr Clayson dealt first with the submission based on purpose. He submitted that reference to purpose was only relevant as a matter of interpretation if the language actually used was ambiguous. His main submission was that the language here was clear. The important provision was the word "immediately". The relevant period was, accordingly, two years immediately prior to the date of service of the application. Occupation for two years over such a defined period was necessarily continuous. This construction was not affected by the use of the words "at least". This would be a natural way of making it clear that the right was not limited to a fixed time. Without something equivalent to these words it might have been argued that the right to buy had to be exercised immediately on expiry of the two years. That argument might have been characterised as fanciful but it was understandable that Parliament would try to be as clear as possible.
Mr Clayson contended that the repeal of section 61(10)(b), far from supporting the applicant, supported the respondents' position. That subsection had plainly recognised that the effect of section 61(2)(c) did not allow for interruption. It made express provision for this. Now there was no provision. He stressed that Miss Mair's example of accidental dispossession due to fire would not necessarily interrupt occupancy. He said that the Tribunal had made it clear that occupation could continue without actual physical possession. He could not be specific as to the cases but recalled a case of Matheson where absence in hospital had not interrupted occupancy and another case against Kilmarnock District Council dealing with imprisonment. Temporary dispossession due to fire would not interrupt occupation.
Mr Clayson went on to point out that as the respondents accepted that there was a relevant period of continuous occupation from April 1999, the applicant would be able to exercise the right to buy in April 2001. He thought it possible that reliance on this period would turn out to be more advantageous for her in terms of the appropriate statutory discount. However, he did not elaborate that argument and neither party made any submission based in any way on the discount provisions of the Act.
Finally Mr Clayson referred to the use of the expression a "succession" of houses. This itself implied continuity.
We accept the critical importance of the words "immediately prior" to the date of service. It is not clear what meaning or purpose could be attributed to the word "immediately" if it did not direct attention to the specific period of two years leading up to the date in question. No other meaning was advanced in submission before us.
If occupancy of at least two years duration has to be established in relation to an identified two year period, unbroken occupation is required throughout the whole period if a total of two years is to be achieved. There is, accordingly, no need to make any additional express provision for occupation to be continuous.
The need for continuous occupation during the defined period is reflected in the reference to a "succession" of houses. While we do not require to place great weight on the use of this word, it is a term consistent with the concept of one thing taking the place of another without interruption.
Interpretation of the subsection as requiring continuous occupancy for two years in the period prior to application might be said to make sense of the express provisions of section 61(10)(b) and thus to give additional support to the respondents' submission. Had the intended effect of section 61(2)(c) been to allow a total of two years without regard to interruptions, it would have been unnecessary to make express provision for such interruption. However, we consider it unsafe to rely on any inference arising from subsection (10). We did not have the benefit of detailed examination or analysis of the relationship of that subsection to any other provisions of the Act in which a period of occupation falls or fell to be determined. The whole subsection expressly applied, and applies, for the purposes of both section 61 and section 62. We heard no submission in relation to the latter but are aware that, as enacted, section 62(3)(b) made express reference to "every year beyond 2 of continuous occupation by the appropriate person immediately preceding the date of service of the application to purchase". The words "continuous" and "immediately" were repealed by the said 1993 Act. The initial inclusion and subsequent removal of section 61(10)(b) could, perhaps, be explained by reference to the history of section 62(3)(b).
Having embarked on examination of the latter subsection for the purposes of determining whether any inference should be drawn from the history of section 61(10)(b) in relation to section 61(2)(c), it may be appropriate to observe that we consider that nothing can be taken from any contrast between the use of "continuous" in section 62 and its absence in section 61. We have expressed our opinion that the word was unnecessary in section 61(2)(c) where the effect of the words "immediately prior" was to define a specific period. That can be contrasted with the implications of the words "immediately preceding" in section 62 which applied to an indefinite period, more than two years before the relevant date. Express use of the word "continuous" in the latter provision may be thought to have been required to avoid risk of ambiguity.
We accept Miss Mair's submission that a need for two years continuous occupation could appear to work unfairly in certain circumstances. The present case might well be an example. It is, however, inevitable that clear criteria require lines to be drawn. In the present context it is not obvious that the consequences would ever be likely to be serious. It may be observed that we heard no submission as to the purpose to be served by the criterion set out in section 61(2)(c) whatever construction is put on it. It was accepted that if Miss Mair's construction was correct, a person who had occupied appropriate houses intermittently for a total of two years, perhaps many years before, and had then gone abroad or into private accommodation, would have a right to purchase immediately he or she acquired a secure tenancy. In construing provisions which are intended to prescribe criteria, it appears to us that if a purposive approach is to be used as a guide, consideration of the purpose of the criteria is a necessary first step. A qualifying period of occupancy has been prescribed. As a guide to construction we have found no reason to give preference to a total period of occupancy, which might have been many years before, as opposed to measured period immediately prior to the application.
In course of submission Miss Mair produced a Scottish Office publication which made an unqualified reference to a "total" of two years in publicly provided accommodation as the essential criterion. We have to accept that this publication was probably current at the date of the application to purchase. For completeness, however, we observe that, although there has been no amendment of the Act, the current edition of the document in question includes the words "immediately prior" in relation to the total of two years. In the whole circumstances we can find no clear guidance from considerations of purpose. In any event, we consider the language used tolerably clear.
The view that there is a requirement of continuous occupancy, in the two years leading up to the application, gains some support from consideration of the first of the cases to which Mr Clayson made reference in his submission. In Matheson v Western Isles Islands Council 1992 SLT (Lands Tr) 107 the Tribunal had to consider a situation where the tenant had occupied her house since 1939 but had been in hospital for the fifteen month period immediately prior to the application. The Tribunal considered in detail the whole evidence bearing on the hospitalisation and was able to conclude that she had continued in occupancy of the house within the meaning of the Act. There was no attempt made to avoid the difficult issues which arose in relation to the nature and effect of hospitalisation by pointing to the total period of occupancy. There was tacit acceptance of the need to establish occupancy throughout the two years prior to application.
We think the other case to which reference was made was that of Beggs v Kilmarnock and Loudoun District Council where the applicant was serving a lengthy prison sentence. The application was eventually allowed by the Tribunal after an appeal to the Court of Session (24 February 1995, unreported). Reports of that case disclose only that the applicant obtained the tenancy some fifteen months before his arrest and detention. The facts, accordingly, have no bearing on the present case beyond supporting the view that the type of forced interruption envisaged by Miss Mair as a potentially unfair break in continuity would seldom, if ever, have that effect in practice.
As we have accepted the landlords' submission that the applicant did not fulfil the necessary criteria entitling her to exercise a right to purchase, it follows that we are unable to make the finding sought in the application and it must, accordingly, be dismissed.