Lands Tribunal for Scotland

OPINION

Davidson
v
Dundee City Council

Summary

The Tribunal has had to decide in this case whether adaptations made to a first floor flat during a modernisation and sheltered conversion have had the result that the tenant’s application to purchase the house is defeated by the exception in Section 61(4)(a) of the Housing (Scotland) Act 1987 relating to houses within a group provided with facilities specially designed or adapted for the needs of persons of pensionable age or disabled persons. The Tribunal, whilst noting certain shortcomings in the provision, at least when the needs of the very infirm or disabled are considered, have decided that the respondents have made out the statutory exception and the tenant’s application fails.

The Issue

This is an application under Section 68(4) of the Housing (Scotland) Act 1987 for a finding that the applicant has a right under Section 61 to purchase the house at 65 Forthill Drive, Broughty Ferry. The respondents had refused the application to purchase on the grounds that Section 61(4)(a) applied. Section 61(4) provides as follows:-

“(4) This section does not apply –

(a) to a house that is one of a group which has been provided with facilities (including a call system and the services of a warden) specially designed or adapted for the needs of persons of pensionable age or disabled persons”.

In their Answers the respondents raised a further issue questioning whether, if there was an entitlement to purchase, the applicant was entitled in terms of Section 61(6) to have her daughter joined with her as a purchaser. The applicant’s solicitor, however, conceded at the conclusion of the evidence that the residence requirement in Section 61(6)(a) was not satisfied in relation to the applicant’s daughter. We did not therefore require to consider that issue further, leaving the issue under Section 61(4)(a) as the only issue before us.

Procedure

The applicant was not herself present at the hearing but was represented by Mr David Ogston, Solicitor, who confirmed that he had the applicant’s full instructions. Mr Ogston called two witnesses, Peter John Lawrie and Mrs Mary Balbirnie Lawrie, who are respectively the applicant’s son-in-law and daughter. The respondents were represented by Mr Kenneth McKaig, Solicitor, who called one witness, George Bruce Pearson, a Senior Architectural Technician in the employment of the respondents. The parties lodged productions and helpfully also entered into a Joint Minute of Admissions agreeing many of the facts.

After the evidence was heard, the Tribunal inspected the house at 65 Forthill Drive in the presence of the applicant’s daughter.

Findings

There was no dispute on the evidence, and the Tribunal found the evidence of all the witnesses entirely credible and reliable.

On the basis of the evidence and the Joint Minute of Admissions, the Tribunal makes the following findings on the facts:-

(i) The house at 65 Forthill Drive, Broughty Ferry, Dundee, is a first floor flatted dwellinghouse which was built in 1926. It has two rooms, kitchen and bathroom.

(ii) The respondents are the landlords of the house. The applicant’s husband was the tenant from around 1948.

(iii) The house was adapted in 1977/78 as part of the Broughty Ferry Modernisation project. As well as modernisation, conversion of a large number of flats to sheltered accommodation was undertaken. This followed a process of seeking tenants’ consent on the basis of questionnaires. Generally, these houses were given the facilities of warden call systems with certain adaptations of bathrooms. In the case of 65 Forthill Drive, consent to such conversion was given by the applicant’s husband at a time when the applicant herself was staying with her daughter’s family in London and thus was not aware of this.

(iv) At around the same time, a sheltered housing warden complex, which also includes a communal lounge and laundry, was developed nearby, some 100 or so metres away, with a warden’s house also close by.

(v) The applicant’s husband died in 1992. The applicant then became the tenant. She is the sole tenant. She is now aged 87.

(vi) 65 Forthill Drive is part of a group of 156 houses in the area which are connected up to a call system. The call system is operated by a warden between 8 a.m. and 4 p.m. and at other times by an emergency service provided by a community alarms service through which a standby duty warden can be contacted. The wardens are there to check up on and if necessary to look in on tenants, provide some basic practical help, contact relatives and obtain other assistance. They do not provide regular care for the very elderly or infirm.

(vii) The applicant herself has recently reached such a state of infirmity that she requires virtually constant attendance, which is provided by Mrs Lawrie and other members of the family. For that reason a disclaimer was signed by Mrs Lawrie and given to the warden service in May of this year (after the date of the application to purchase) indicating that there was no requirement for the warden to visit. It is not a ’full’ disclaimer in that emergency cover is still provided. The system is still connected-up.

(viii) At 65 Forthill Drive, the call system has pull cords which are connected in every room, enabling the tenant to sound an alarm with the warden or community alarm service, together with a speech unit for use by the tenant in the hall. The call system is operational and has been used on occasion by the applicant, although for the reason given above she does not at present normally require it.. There is also an ‘activity mat’ which is a pressure mat which has been fitted to allow the warden to observe whether there has been activity in the house.

(ix) Apart from the call system, the house has the following adaptations:-

(a) a non-slip floor in the bathroom;

(b) handrails in the bath;

(c) handrails in the toilet;

(d) an outward opening bathroom door;

(e) a space heating installation which is capable of maintaining a temperature of 21 degrees centigrade when the outside temperature is minus 1 degree centigrade in each of the rooms and in the bathroom, hall and kitchen;

(f) some, but not all, of the electrical sockets are fixed at a height of at least 500mm above the floor;

(g) a handrail in the stairwell.

(x) The requirements of the elderly infirm are not completely met by the adaptations at 65 Forthill Drive. Despite the handrails and the non-slip floor, the bathroom is not otherwise converted for the elderly infirm : there is no shower or adapted access to the bath, which is itself at a low level, and there are no special taps. As far as the electrical sockets are concerned, the only raised sockets are in the kitchen, such as would be found in any fitted kitchen: the rest in the house are at the normal skirting board level. One might well expect a handrail in the internal stairwell anyway. The heating radiators have individual thermostats which are at skirting board level. None of the doors in the house has been widened for wheelchair access.

(xi) The house is entered from a tarmac path at the side of the building (a typical semi-detached, ground and first floor, ‘four in a block’), using 5 stone steps from ground level, up to a fairly steep step over the entrance doorway, without any ramp. It is then necessary to climb the 10 or 12 steps on the internal stairs, again without any ramp. At the top of the stairs, there is no form of door or gate which would prevent persons falling down the stairs from the hall. There is no lift.

Submissions for Applicant

Mr Ogston referred to the guidance given by the Inner House on the correct approach in applying Section 61(4)(a) in City of Dundee District Council v Anderson 1994 S.L.T. 46, at 49 : it had first to be considered whether the house had been provided with the specified facilities and then, if it had, it should be considered whether it was one of a group which had been so provided. Mr Ogston accepted that if the first part was satisfied, the house was one of a group so provided. He submitted that the crucial issue was one of design and construction.

In considering whether the house was provided with the specified facilities, Mr Ogston drew attention to the position about access to the house, electric sockets, the bathroom and the radiator thermostatic valves. The requirement, he argued, had only been partially met. The adaptations which had been made went some way, but not far enough, towards meeting the needs of persons of pensionable age or disabled persons. Apart from the rails, there was no suggestion of any structural alteration to doorways or stairs. He submitted that the features omitted from the adaptation of the house were significant and pointed in particular to the lack of shower and lack of specially adapted taps in both the bathroom and kitchen. There were no cases directly in point, but the shortcomings referred to were of sufficient materiality to enable it to be concluded that the house did not meet the required standard, and therefore failed the test of Section 61(4)(a).

Submissions for Respondents

Mr McKaig submitted that the issue was essentially one of fact : was the house adapted for the needs of persons of pensionable age? He pointed out that adaptation for disabled persons was an alternative, and not a necessary, requirement for the provision to be satisfied. He referred to cases touching on the importance of the call system and warden service : Martin v Motherwell District Council 1991 S.L.T. (Lands Tr.) 4, at 6H-I, obiter ; Crilly v Motherwell District Council 1988 S.L.T. (Lands Tr.) 7, at 8H ; and Moonie v City of Dundee District Council 1992 S.L.T. (Lands Tr.) 103, at 104H, 106F. He conceded that in the present case some adaptations were not present. The provision, however, did not provide for adaptation to a certain standard or specification : the house did not require to be fully adapted. The provision had not been satisfied in Anderson, supra, because the call system had not been connected and therefore could not be said to have been ‘provided’. The Tribunal had considered and rejected an argument about facilities which were said to have fallen short of modern standards for sheltered housing in Forsyth v South Ayrshire Council, 18.4.2001, LTS/TR/2001/1, at pages 3 and 5. That case illustrated the need for a warden and call system, and something beyond that, being enough to satisfy the statute.

Tribunal’s Consideration

The Tribunal has to bear certain considerations in mind when applying Section 61(4)(a) in a case such as this. The provision addresses in a particular way the conflict between the interests of tenants with secure tenancies, who in general have a right to purchase their homes under favourable terms, and landlords who wish to retain certain types of housing stock, in this case housing coming under the general description of “sheltered housing”.

The provision refers to the house rather than the tenant. The Tribunal is therefore unable to take account of subjective considerations related to the tenant applicant. As Moonie, supra, graphically shows, the tenant’s own need for, or attitude towards, the sheltered facilities, is irrelevant. In that case the tenant was not of pensionable age or disabled, and the facilities, of which she made no use, had apparently been connected up by mistake, but the provision was nevertheless satisfied. The applicant in this case points out that she herself had not been aware that the facilities were being added (although she did in fact subsequently accept the tenancy). We cannot take account of that. For the same reason, we are also not able to take into account the fact that, in her particular circumstances (largely, the very substantial assistance which she receives from her family), she does not in fact require assistance from the wardens. Again, the question whether the facilities provided come within the statutory provision is not to be measured by the applicant’s particular condition.

This brings us to consider what the provision does require. We accept Mr McKaig’s submission that design or adaptation for the needs of persons of pensionable age is alternative to design or adaptation for the needs of the disabled. The first floor flat at 65 Forthill Drive could not be said to meet the needs of the disabled or the elderly infirm such as the applicant, but the respondents are entitled to ask us to consider whether it has facilities designed or adapted for the elderly living alone.

Although it is not necessary in the present case to consider whether the call system and warden service are essential requirements or merely illustrative, there is no doubt that the provision puts these facilities in the forefront. Mr McKaig did not go so far as to submit that they could be sufficient without more, but in the context of the requirement that the house is one of a group of houses with similar provision, it can be seen that the provision of facilities of a call-out nature within one of a number of houses in a group is at the heart of the statutory provision. This is underlined when this provision is contrasted with Section 64(4), which has the effect of enabling the landlords to insert a right of pre-emption, i.e. to buy the house back, where a house does have special facilities for the elderly or disabled but is not part of a group within a particular area and therefore is not exempted under Section 61(4)(a). The reference to the call system and warden service also points to the provision being applicable to houses suitable for tenants, living on their own, who are not so infirm that they require constant attendance.

We are not able to accept Mr Ogston’s submission that design and construction are crucial. This ignores the possibility of adaptation, which, again, is clearly an alternative requirement in the provision. To be fair to Mr Ogston, he did not really build very much on this submission and he did address the question whether the adaptations relied on by the respondents came up to the required standard.

Reference to a ‘required standard’ is, however, misleading in this context. If it refers merely to the requirement on the respondents to reach the standard of satisfying the Tribunal that the statutory provision is met, that raises no problem. However, any suggestion that the facilities provided require to meet a particular standard, for example of modern ‘sheltered housing’, goes beyond the statutory provision, which is simply that facilities specially designed or adapted have been provided. As this Tribunal indicated in Forsyth, supra, at page 5:-

“There is no express requirement to examine what, in modern practice, is thought to be required for the purposes of ‘sheltered housing’. We do not consider that the section can be read as applying only where all possible needs have been met by the facilities provided. It is therefore irrelevant that the particular subjects may lack certain facilities which would currently be regarded as necessary or desirable to meet all the potential needs of elderly or disabled persons.”

What is required is to weigh up the facilities as a whole and apply the test whether facilities specially designed or adapted have been provided.

The Tribunal recognises, however, that some features of design or adaptation might be so common to any house as to make it difficult to see them as contributing anything, or certainly anything of any weight, towards satisfaction of the definition. As the Tribunal said in Martin, supra, at 6B, when considering the significance of lights outside the rear doors of certain houses:-

“Innumerable houses, however, must possess that simple feature. It cannot be assumed that it was something which it was thought necessary to provide only as a special facility to satisfy the needs of the elderly, nor am I prepared to regard it as such.”

Applying these considerations to the question in the present case whether the house at 65 Forthill Drive has been provided with facilities bringing it within Section 61(4)(a) (it being accepted that if it has it is one of a group as required), the Tribunal first finds that the house does have a full call service, involving pull-cords throughout the house, and does have a warden service provided. Although these facilities, particularly the latter, are not presently being used by the applicant, Mrs Lawrie very fairly said in evidence that there was no suggestion of any shortcomings in the warden sevice. The warden is undoubtedly quite close by and available during the day. The ‘activity mat’, although in the same category perhaps as the call and warden service, is another facility which is clearly specially designed for the needs of persons of pensionable age.

Beyond that, there are facilities in the bathroom which, while less than ideal, go towards satisfying the definition, and there is the central heating installation. In the bathroom, there are handrails in the bath and toilet, and there is the non-slip floor. The central heating installation, like these features in the bathroom, is established to have been installed as part of the sheltered conversion and while of course central heating may be provided in any house, we accept that the bathroom features and the heating go towards satisfying the definition. Although it is agreed that the outward opening bathroom door was an adaptation, our examination of this particular bathroom door did not suggest that it was anything unusual, and we therefore attach little or no weight to that. Likewise with the electric sockets: they appear in most of the house to be at ordinary, skirting board level, being raised to a higher level only in the kitchen where there is a work-surface, as in any fitted kitchen. The handrail in the stairwell is in a similar position : we would have thought that such a handrail may well be provided as a matter of course in any modernisation and not specially as part of a sheltered conversion. We therefore accept that some, but not all, of the features to which the respondents referred us, go towards satisfying the definition.

Noting, as we do, the shortcomings in the provision, particularly perhaps the lack of any ramp or lift, we still find that on a proper application of the statutory provision the house has been provided with facilities specially designed or adapted for the needs of persons of pensionable age. The central facility of the call system and warden service, together with the ‘activity mat’, the bathroom fitments and the heating installation are in our opinion sufficient to reach this conclusion. We therefore require to refuse this application.

Expenses

The parties were agreed that expenses should follow success and, while we have sympathy with the applicant in having properly raised and pursued this matter, the Tribunal sees no reason to dispose otherwise of this issue. Accordingly, there will be an award of expenses in favour of the respondents.