Lands Tribunal for Scotland

OPINION

McAllister
v
Queens Cross Housing Association Limited

Summary

In this application by a tenant to purchase her home there is one contentious issue. It is whether, as a matter of law, a tenant of a registered housing association is a ‘secure tenant’ (and thus entitled to purchase), even although the tenancy was entered into after the commencement of the Housing (Scotland) Act 1988 (“the 1988 Act”). That Act provided generally that tenancies of registered housing associations were no longer to be secure but were to have the different status of ‘assured tenancies’. In the present case, however, the tenant, immediately before entering into the present tenancy, had had a secure tenancy under a lease, entered into before the 1988 Act, of another house from the same landlord. The tenant claimed that in that particular situation she was entitled to remain a ‘secure tenant’. The issue was presented to the Tribunal as being one of pure statutory construction, not dependent in any way on the terms of the parties’ tenancy agreement. The Tribunal has decided that the correct interpretation of Section 43(3)(c) of the 1988 Act in the particular circumstances is that the tenant is entitled to a secure tenancy, and that this application therefore succeeds.

Procedure

This is an application for a finding under Section 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”) that the applicant has the right to purchase the dwellinghouse at Flat 1/2, 14 Clarendon Place, Glasgow from the respondents, Queens Cross Housing Association Limited, her landlords. The landlords had refused her application on the ground that she is not a secure tenant and therefore does not qualify under Section 61 of the 1987 Act for the right to purchase.

The relevant facts were agreed. The applicant was represented by Mr Sutherland, Advocate. The respondents were represented by Mr McNeill, Advocate. The Tribunal is obliged to both counsel for their clear submissions. Parties were agreed that the single issue identified is determinative of this application.

The Facts

The agreed relevant facts can be stated briefly as follows:-

  1. The applicant was the tenant of the house at Flat 3/2, 14 Clarendon Place, Glasgow, from 12 September 1986 until 26 November 1991. The respondents were the landlords under that tenancy. That tenancy was a secure tenancy under the 1987 Act both before and after the commencement of the 1988 Act.
  2. On 26 November 1991 the applicant became tenant of the house at Flat 1/2, 14 Clarendon Place. She continues as the tenant under that tenancy. The respondents are the landlords under that tenancy.
  3. The respondents are a ‘registered housing association’ under the 1987 and 1988 Acts.
  4. The applicant has throughout occupied first Flat 3/2 and then Flat 1/2 as her only or principal home.

It should be mentioned that there is a written tenancy agreement in respect of Flat 1/2. This is headed, “Assured Tenancy Agreement”. Parties are, however, agreed that the question whether the tenancy is a ‘secure tenancy’ rather than an ‘assured tenancy’ is entirely a matter of construction of the provisions of the 1987 and 1988 Acts in relation to the status of the tenancy on the basis of the agreed relevant facts, and does not turn at all on the terms of their agreement or their description of it at the time. Nor was it of any relevance to consider the circumstances in which the applicant’s first tenancy ended and the second began, a matter as to which the Tribunal had no information.

The Issue

When the right to purchase was introduced by the Tenants’ Rights, Etc. (Scotland) Act 1980, registered housing associations were among the landlords, tenancies from whom could be ‘secure tenancies’ to which the provisions applied. That continued to be the position under the 1987 Act. The 1988 Act, however, altered the position of registered housing associations, creating a new status of ‘assured tenancy’ which did not attract the right to purchase. There were transitional provisions. The 1988 Act did not apply to tenancies which were already in existence at its commencement date (2 January 1989). Thus the applicant was admittedly a secure tenant (with the right to purchase) of Flat 3/2 up until 26 November 1991. The issue is whether the new tenancy, of a different house, entered into on that date was covered by Section 43(3)(c) of the 1988 Act, viz.:-

‘(c) it is granted to a person (alone or jointly with others) who, immediately before it was entered into, was the secure tenant (or any one of the secure tenants) of the same landlord’.

If so, it could be (and the respondents would not dispute that it was) a secure tenancy, giving the applicant the right to purchase. If not, it could not be a secure tenancy and the application would fail. The respondents accepted that the first tenancy was in existence ‘immediately before’ the second. The issue, therefore, is whether, as a matter of construction, the provision applies only to successive tenancies of the same house.

Statutory Provisions

The Housing (Scotland) Act 1988, provides inter alia:-

“12. - (1) A tenancy under which a house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as -

(a) the tenant or, as the case may be, at least one of the joint tenants is an individual; and

(b) the tenant or, as the case may be, at least one of the joint tenants occupies the house as his only or principal home; and

(c) the tenancy is not one which, by virtue of subsection (2) below, cannot be an assured tenancy.

(2) If and so long as a tenancy falls within any paragraph of Schedule 4 to this Act, it cannot be an assured tenancy.

“43. - (3) A tenancy which is entered into on or after the commencement of this section cannot be a secure tenancy unless -

(a) the interest of the landlord belongs to -
[one of a list of ‘public authorities’, not including registered housing associations] or

(b) it is entered into in pursuance of a contract made before the commencement of this section; or

(c) it is granted to a person (alone or jointly with others) who, immediately before it was entered into, was the secure tenant (or any one of the secure tenants) of the same landlord; or

(d) it is granted to a person (alone or jointly with others) in the following circumstances -

(i) prior to the grant of the tenancy, an order for possession of a house was made against him (alone or jointly with others) on the court being satisfied as mentioned in paragraph (b) or paragraph (c) of subsection (2) of Section 48 of the Housing (Scotland) Act 1987; and

(ii) the tenancy is of premises which constitute the suitable accommodation as to which the court was so satisfied; and

(iii) in the proceedings for possession referred to in sub-paragraph (i) above the court directed that it would be a secure tenancy.

SCHEDULE 4

Tenancies entered into before commencement

“1. A tenancy which is entered into before, or pursuant to a contract made before, this Schedule comes into force.

Local authority and other tenancies

“11. A tenancy under which the interest of the landlord belongs to-

[One of a list of ‘public authorities, not including registered housing associations]

Transitional Cases

“13. - (2) A secure tenancy within the meaning of Part III of the Housing (Scotland) Act 1987”

Authorities

Parties also made reference to the following:-

Rent (Scotland) Act 1984, Sections 1(1), 3(1), 5(4), Part VI
Housing (Scotland) Act 1987, Sections 44(1), (2) and (7), 46(1)(c), 61(1) and (2), 54, 76, 81A
Housing (Scotland) Act 1988, Sections 42, 44, 45, 55(3), Part III, 61,81(b), Schedule 5
Housing Act 1988, Sections 34, 35
Megarry, Rent Acts, 11th. Ed’n., Vol. 3, Pages 65ff
Goringe v Twinsectra [1994] CLY 2723 (Staines County Court)
Milnbank Housing Association Ltd. V Murdoch 1995 SLT (Sh’f Ct.) 11
Laimond Properties v Al-Shakarchi (1998) 30 H.L.R. 1099 (Court of Appeal)
Arogol Company Limited v Sher Rajah 21.3.2001 (Court of Appeal)
Knowes Housing Association Limited v Millar , 2.8..2001, now reported at 2001 SLT 1326 (Extra Division)

Applicant’s Submissions

Mr Sutherland started by guiding the Tribunal through the main relevant statutory provisions, which are somewhat convoluted. Registered housing associations are within the list of landlords covered by the right to purchase provisions (1987 Act, Section 61(2)(a)). To have the right to purchase, tenants must be tenants under a ‘secure tenancy’ within the meaning of Section 44 of the 1987 Act. Registered housing associations are also among the landlord bodies whose tenancies may be secure tenancies. However, the 1988 Act created a new form of ‘assured tenancy’ (Section 12) which generally applies to housing association tenancies entered into after the Act. Schedule 4, paragraph 13(3), lists ‘secure’ tenancies among tenancies which cannot be ‘assured’: tenancies cannot be both. An existing tenancy might become ‘assured’ as the result of a change of landlord (Section 45). Sections 42, 43 and 44 removed previous tenancy statuses – ‘protected’, ‘housing association’, and ‘secure’ (tenancies from registered housing associations could previously have enjoyed any of these three statuses) except in certain specified circumstances.

In relation to ‘secure’ status, Section 43(3) provides that tenancies entered into on or after the commencement date cannot be secure tenancies unless they fall under one of four alternative sets of circumstances. The most important, and ongoing, exception is provided by Section 43(3)(a), which lists the landlord bodies, new tenancies from whom can be ‘secure’. These are generally ‘public bodies’. That list does not include registered housing associations, with the result that, generally, under the 1988 Act, tenancies from registered housing associations are now to be ‘assured’, not ‘secure’. The recent Inner House decision in Knowes Housing Association Ltd. v Millar illustrated the Scheme. The landlord’s interest under a tenancy created after 2 January 1989 had been held by Scottish Homes, one of the listed public bodies, and then transferred to the registered housing association. Upon the transfer to the Housing Association, a body not on the list in Section 43(3)(a), that status flew off, and this was “consistent with the scheme of the Act being designed to restrict secure tenancies to a limited number of public sector landlords” (Opinion of the Court, para. 19).

It did not, however, matter, Mr Sutherland said, that the landlord’s interest did not belong to one of the listed public bodies if one of the other exceptions applied. Each of the other three exceptions in Section 43(3) – (b), (c) and (d) - may cover tenancies from registered housing associations. Reference to Section 43(3)(d) reinforced the point: that exception covers a position where a possession order has been made but the court having been satisfied of the suitableness of alternative accommodation might direct that the tenancy of that new accommodation should be a ‘secure’ tenancy. There was a range of situations of new tenancies which were to be ‘secure’ although not from public bodies.

The exception relied upon by the applicant was Section 43(3)(c). Placing Section 43(3)(c) alongside (d) made the intention clear that (c) did not require the property to remain the same so long as the landlord and the tenant were the same and there was no interruption. Use of ‘the’ (‘the secure tenant (or any one of the secure tenants) of the same landlord’) had the same effect as ‘a’, being simply a reference back to the person previously identified in the sub-section.

Mr Sutherland referred to Section 54(2) of the 1987 Act, which allows the landlord under a secure tenancy to increase the rent by written notice without terminating the tenancy. Section 43(3)(c) was a further situation in which a registered housing association landlord could achieve an alteration in the contractual arrangements, in this case by agreement. The provision enabled the tenant to agree a change which produced a new tenancy without losing secure status and without the necessity of any application to the court.

Mr Sutherland then referred to the equivalent English provisions and drew support from some decisions on them. Section 35(4) of the Housing Act 1988 similarly provides that tenancies entered into after the Act cannot be secure unless they fall within exceptions which follow a similar pattern. The exception in Section 35(4)(d) applies to such a tenancy where:-

“(d) it is granted to a person (alone or jointly with others) who, immediately before it was entered into, was a secure tenant and is so granted by the body which at that time was the landlord or licensor under the secure tenancy.”

The provision removing protected tenancy status (corresponding to Section 42(1)(b) of the Scottish Act) is Section 34(1)(b):-

“(b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was a protected or statutory tenant and is so granted by the person who at that time was the landlord (or one of the joint landlords) under the protected or statutory tenancy.”

Mr Sutherland referred to the commentary by Sir Robert Megarry (Vol. 3, page 55) to the effect that this provision could apply where parties agreed to a substitute for the existing house. A County Court decision, Goringe v Twinsectra, had been to that effect. In Laimond Properties v Al-Shakarchi, the Court of Appeal had agreed (per, Roch L.J., at page 1107): there was no reason for implied limitation of Section 34(1)(b) to new tenancies of the same premises. These comments were equally applicable to Section 43(3)(c) in the present case. Nothing could be taken from use of the definite article, ‘the’, in the Scottish provision, as compared with the indefinite article, ‘a’, in the English. Mr Sutherland accepted that if the natural interpretation of the provisions in the English and Scottish Acts was different, they would have to have different results, but argued that that was not so and it was sensible that parallel provisions should each lead to the same result. He found further support from the Court of Appeal in Arogol Company Limited v Sher Rajah (per, Hale L.J., at paras. 18,19).

Mr Sutherland suggested that there was a whole series of circumstances in which Section 43(3)(c) might apply to different as well as to the same premises. The purpose of the provision was to identify a link between the tenant and the landlord and immediate proximity of one tenancy and the other. It would be different if the tenant left for a month. If the intention was that different premises would not be covered, that would have been expressly stated. The respondents’ position had to proceed on the basis of implication.

Finally, Mr Sutherland drew attention to, but did not place reliance on, the one Scottish decision on the point. Milnbank Housing Association Ltd. v Murdoch was a summary application to the sheriff court by landlords for a determination that a tenancy was an ‘assured tenancy’, against a similar background of tenancies, in connection with an issue as to jurisdiction of a rent officer to register a fair rent. The issue was decided in favour of the tenants, but on reasoning which Mr Sutherland did not support, the argument having been presented in a completely different way. Counsel for the landlords had apparently accepted that Section 43(3)(c) made it possible for the new let to have the same status as the old, but argued that it was open for the contracting parties deliberately to opt instead for an ‘assured tenancy’, reasoning which the sheriff had not accepted but, Mr Sutherland said, without setting out the correct chain of reasoning as to the structure of the provisions.

Respondents’ Submissions

Mr McNeill, confirming his agreement that this was wholly a matter of interpretation of the statutory provisions, placed strong reliance on the scheme of the 1988 Act. As indicated in Knowes, this was to restrict secure tenancies to a limited number of public sector landlords. It specifically related to housing associations. These had previously been treated as part of the public sector, but the specific intention of the 1988 Act was to take them out. That could be seen from the list in Section 43(3)(a), from Section 45(4) and from Paragraph 11 of Schedule 4. He referred to what he described as the “sub-scheme” relating to housing associations: after 2 January 1989 tenancies where the landlord was a housing association should not be secure or subject to the rent control provisions unless they already existed and the landlord continued to be the same housing association which was landlord at that date. The ruling provision was the opening words of Section 43(3). The scheme was evident also from Section 45 and Part III.

Section 43(3)(c) only afforded secure status to a new tenancy if it was of the same property. Mr McNeill argued that when the statutory scheme was borne in mind, the purpose of Section 43(3)(c) within the scheme could be clearly seen. It was to prevent the exception in favour of pre-existing secure tenancies from being defeated by the device of terminating an existing tenancy agreement in favour of a new tenancy agreement between the same housing association and the same tenant in relation to the same house. The landlord might not be changing the conditions much, but, absent Section 43(3)(c), could thereby change the status of the tenancy. Contrary to the suggestion in Milnbank, where the tenants argued that it was not possible to contract out of the statutory provisions, there would be nothing improper in that. Termination of a secure tenancy by written agreement was specifically allowed by Section 46(1)(c) of the 1987 Act.

Mr McNeill submitted that the natural meaning of the provision using the definite article – ‘the secure tenant (or one of the secure tenants)’ – was that the person referred to had been the tenant of the same premises. He accepted that it would be different if the indefinite article had been used, as the English cases indicated, although he submitted that the references to this point in both the Court of Appeal cases, Laimond and Arogol, were obiter and he also pointed out that the County Court judge in Goringe had obviously not felt the matter to be clear as he had referred to parliamentary materials in accordance with Pepper v Hart. The interpretation in England involved defining a personal status, but, he said, ‘secure’ is a status given to a tenancy not to a tenant, and a tenancy agreement cannot be transferred to a different property.

Mr McNeill described Section 43(3)(d) as a very unusual provision, which was not supportive of the applicant’s interpretation of 43(3)(c) but was rather an exceptional provision in which the court could defeat something which was within the scheme of the Act. 43(3)(d) was an odd provision, totally outwith the general scheme.

Mr McNeill had a number of further submissions on particular words and expressions in the legislation. Section 42(1) of the 1988 Act, the provision which removes the status of ‘protected tenancy’, again with exceptions, refers at 42(1)(b) to ‘the protected tenant (or one of the protected tenants) or a statutory tenant.’ Under reference to Sections 1 and 3 of the Rent (Scotland) Act 1984, Mr McNeill explained the different types of ‘statutory’ tenants and hence the need for the indefinite article in that context, but the house must still, he said, be the same as in the previous tenancy. Next, he submitted that on the applicant’s interpretation, the phrase, ‘any one of the secure tenants’ in Section 43(3)(c) would be tautologous because Section 55(3) defined ‘the tenant’ as referring to all the joint tenants, but on Mr Sutherland’s version ‘tenant’ could only mean any one of the joint tenants. He then said that the only references to ‘secure tenants’ (as opposed to ‘secure tenancies’) in the legislation were at Section 76 of the 1987 Act (a heading), and in Section 81A of the 1987 Act, which is a provision inserted by the Housing Act 1988 preserving the right to purchase where a public sector body sold a house to a housing association with the result that Section 45 of the 1988 Act applied: Section 81A(5) defined ‘secure tenant’ for the purposes of that section. It was evident that Section 43, using the definite article, was, in the normal way, limiting the reference to the tenant of a particular house rather than referring to a class of secure tenant.

Mr McNeill looked at the heading of the group of sections, sections 42 to 46 of the 1988 Act, viz. ‘Phasing out of Rent (Scotland) Act 1984 and other transitional provisions’. Section 43(3) must be a transitional provision, which was significant because Schedule 4, paragraph 13 is headed, ‘Transitional cases’, and when the reasoning of the Inner House in Knowes was traced they were saying that the object of paragraph 13 was to protect existing tenancies. The effect of Section 45 was that a tenant could find his existing status, in relation to his existing house, lost through no fault of his own, although Part III of the Act provided a procedure where such transfer could take place only with individual consent. This was all consistent with the general scheme, demonstrating how restrictive the provisions were intended to be, whereas if the applicant was correct, Section 43(3)(c) applies to afford ‘secure’ status to a new tenancy.

Mr McNeill identified some odd situations which he said followed from the applicant’s interpretation. A person who had been on the waiting list of a housing association but not presently a tenant would, upon allocation of a house, receive an ‘assured’ tenancy, but if the same house were allocated to someone already a tenant at another property the tenancy would be ‘secure’. Other examples of situations where the new tenancy would be ‘assured’ were transfer to another housing association and indeed cross-transfers, where both tenancies would have that status.

Mr McNeill also suggested that the situation of temporary moves, while the normal accommodation was unavailable, was covered by Section 44(7) of the 1987 Act.

Reply by Applicant

Mr Sutherland replied briefly on a number of points. The provisions of Section 43(3)(b), (c) and (d) were, he said, specifically meant to find exceptions to the general scheme. He advanced a number of further policy reasons why ‘secure’ status should be preserved in particular situations. Section 44(7) of the 1987 Act did not say anything about the status of the tenancy of the house in which the tenant was temporarily accommodated. There were, he said, good policy reasons why tenants who kept the same landlord should keep the same tenancy status but tenants who changed landlord should not. Mr Sutherland did, however, accept that Section 43(3)(c) also had the effect for which Mr McNeill contended of protecting against new agreements in relation to the same property. He identified several other places in the legislation and subordinate legislation in which the expression, ‘secure tenant’, is used. It was, he concluded, quite obvious that ‘the secure tenant’ only means ‘a or the tenant under a secure tenancy’ (from the same landlord) and particularised an individual, not the property occupied. He accepted that a situation, such as a marriage split-up, where there was more than one tenant in the first house, could produce two ‘secure’ tenancies, but otherwise one partner might be inhibited from leaving.

Decision

The Tribunal prefers the applicant’s submissions.

Looking first at the actual words of the provision, the Tribunal appreciates the initial impression that ‘the secure tenant’ might suggest that the house also was the same. That is not, however, what the words say, and the more natural interpretation seems to the Tribunal to be that this is simply a short way of expressing the requirement that the tenant under the present tenancy had also been the tenant under a previous tenancy (which might, or might not, have been in respect of the same house) from the same landlord. The respondents’ interpretation adds an extra limitation which could easily have been expressed if that was the intention, but has not.

The provision, however, requires to be construed in its context, and it is appropriate to consider what assistance can be derived from consideration of the scheme of the legislation. The form of Section 43(3) is to end secure tenancies subject to exceptions. The substance, however, is clearly more limited: it is, in general, to restrict that status to certain public sector landlords and therefore to remove it from tenancies from housing associations, as the Inner House clearly accepted in Knowes. The Tribunal entirely accepts this. However, it seems to the Tribunal that reference to the overall scheme of the legislation in relation to housing association tenancies does not assist very much, because the particular provision in issue is clearly a transitional or saving provision. What is in issue is the extent of savings or exceptions from the application of the basic scheme removing ‘secure’ status from these tenancies.

It is not in dispute that Sections 43(3)(b), (c) and (d) are all capable of applying to tenancies from housing associations, as is the basic saving, expressed in the opening words of Section 43(3), for secure tenancies in existence at the Act’s commencement date. That saving, which had applied to the applicant before the change of tenancy, has presumably protected the status of a large number of tenants on a continuing basis. What can also be said, under reference to Section 43(3)(d), is that the exceptions do include at least one situation of a tenancy from a housing association of a different house from that occupied under the previous tenancy. That exception may, as Mr McNeill argued, cover a somewhat unusual situation which might not often arise, but it does show at least that legislative intention. Theoretically at least it might cover a much more unlikely situation for the protection of ‘secure’ status, because it apparently could have effect in a case where the landlord was obtaining a court order for recovery of possession of the first house on the ground that the tenant has been guilty of conduct amounting to a nuisance or annoyance (1987 Act, Section 48(2)(b) and Schedule 3, Case 8).

In considering how (c) sits alongside (d), it would seem likely that the latter exception would come into play in relation to a ground which is more clearly a ‘management ground’, for example proposed demolition or substantial works. If (c) only applied to tenancies of the same house, it would mean that where a landlord in that sort of situation wishes to offer the tenant alternative accommodation, ‘secure’ status can be achieved by requiring the landlord to bring possession proceedings but cannot be achieved by agreement. It is difficult to accept a legislative intention to that effect. A scheme under which a tenant who has continued to enjoy ‘secure’ status knows not only that a landlord who seeks possession on a management ground may be required by the court to continue ‘secure’ status as well as offering suitable accommodation, but also that that result can be achieved by agreement without court proceedings seems preferable and much more likely.

The Tribunal accepts, as Mr Sutherland did, that the provision can have some practical content, in the way Mr McNeill described, in preventing landlords from defeating ‘secure’ status by entering into new tenancies, perhaps on substantially similar terms, of the same house. Equally, however, it is clear to the Tribunal that there are situations in which it might, as a matter of policy, be thought appropriate to continue the ‘secure’ status of tenancies of different houses under the same landlord. While moves by agreement to other houses owned by the same landlord housing association may no doubt occur in a variety of situations and not simply at the instigation of the landlord on management grounds, a legislative intention not to place an impediment in the way of that, and not to penalise a tenant who makes such a move, seems readily understandable. Since there will always be dividing lines, it is possible to point, as Mr McNeill did, to situations on the other side of the line, but the Tribunal was not persuaded that any significant anomalies result from holding the provision to apply to tenancies of different houses. The fact that Section 43(3) only applies to tenancies entered into after the Act means that there must anyway be two classes of tenants of housing associations. The tribunal considers that it fits in with the scheme of exceptions and savings under Section 43(3) to have a provision which allows a tenant, like the applicant, who has remained in the ‘secure’ class since the Act, to keep that status despite a change of house, if there is agreement for a new tenancy from the same landlord without interruption.

Mr McNeill’s theme that the Act deals with tenancies not tenants does not seem to the Tribunal to be significant in this connection. There does not appear to be anything inconsistent, when categorising tenancies, in a legislative intention to put certain tenants in a different class. A tenancy is, after all, a relationship between a landlord and a tenant. The Tribunal did not gain much assistance from Mr McNeill’s reference to the limited number of places where the legislation refers to ‘secure tenant’ rather than to tenancies.

Mr McNeill’s argument under reference to the interpretation section, Section 55(3), cannot be accepted. That subsection provides:-

“(3) Where two or more persons jointly constitute either the landlord or the tenant in relation to a tenancy, then, except where otherwise provided, any reference in this Part of this Act to the landlord or to the tenant is a reference to all the persons who jointly constitute the landlord or the tenant, as the case may require.”

Section 43(3)(c) refers to a person, singular, who was the tenant, so Section 55(3) does not apply and there is no question of having to give ‘the secure tenant’ a different meaning and produce tautology, as Mr McNeill suggested.

The situation of parallel Scottish and English legislation, enacted by the same Parliament and dealing with the same subject matter, but doing so in different terms, is not unusual in this field. The differences cannot just be ignored but must be considered closely, and may lead to different results, as the Tribunal considered, in relation to Schedule 2(3) of the 1987 Act, in Bolton v Aberdeen City Council, 28.6.2001, at page 26. Reference to the corresponding English legislation is, however, constructive and can assist in considering the correct interpretation in context. In the present case, looking at the corresponding transitional provisions in relation to all three tenancy statuses, ‘protected’, ‘housing association’ and ‘secure’, the Tribunal finds it difficult to ascribe a different legislative intention in the Scottish Act. Mr McNeill accepted that the equivalent English provision was not limited to a further tenancy of the same house, as Mr Sutherland vouched by the references to English decisions and dicta. The analysis in Laimond, particularly at page 1107, of the relationship between the equivalents of (c) and (d) appears to support the above consideration of how they fit together.

The Tribunal has not followed the reasoning in Milnbank, which followed a different course as a result of the very different way in which the issues were presented. It is perhaps of some interest to note that in that case counsel for the landlords accepted that Section 43(3)(c) could (if the parties agreed) produce ‘secure’ status for a tenant in the position of the present applicant and the sheriff did not indicate any contrary view.

For these reasons the Tribunal finds in the applicant’s favour, and as there is accepted to be no other issue, grants her application. In the event of any application for expenses that matter will be dealt with according to the Tribunal’s normal practice of inviting written representations and having an oral hearing only if this is considered necessary.