Lands Tribunal for Scotland

OPINION

Forsyth
v
South Ayrshire Council

The applicants, Mr and Mrs Forsyth, applied to the respondents seeking to exercise a right under the provisions of section 61 of the Housing (Scotland) Act 1987 to buy the house of which they are tenants at 24 Lichtenfels Gardens, Prestwick. The application was refused on the basis that the house was one which fell within the exception provided by section 61(4). The applicants did not accept this.

Section 61 gives a secure tenant a right to purchase a house to which that section applies. Subsection (4), however, provides that the 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".

We heard the application at Ayr on 4 April 2001. Mr Forsyth appeared on behalf of himself and his wife. He gave evidence. The respondents were represented by their solicitor Mrs Platt. She led evidence from Miss Margaret Vance, a solicitor also employed by the respondents, who had advised them in relation to the application to buy; and Mr Ian Slamin, a Housing Manager employed by them. We carried out a site inspection on the same day.

The following facts were admitted or proved:

  1. The applicants' house is a single storey mid-terraced house situated in a group of some 34 similar houses set out in short rows. It was accepted that their house could be taken as typical of the other houses in the group.
  2. The house comprises a livingroom, bedroom, kitchen and bathroom. It is on one level. There are two steps up to the door from the level of the path and communal grassed area. A handrail is provided at the steps.
  3. All doors in the house have been made substantially wider than the usual standard in order to accommodate wheelchair users.
  4. The bathroom is fitted with a stout grab rail beside the WC. This rail can be lifted up against the wall when not required. The bathroom has a shower with easy access at floor level. This is a feature design to assist people who might have difficulty stepping into a raised shower tray. There is no bath. There is a vertical grab rail beside the shower. Mr Forsyth gave evidence that he considered this to be a normal feature on any shower installation. However we accept the evidence of Mr Slamin that it was provided specially for the assistance of elderly or disabled persons. Other people might, of course, chose to have a similar fitment in their house but we do not accept that such rails are common.
  5. Two electric sockets in the lounge are set at a height of 500 millimetres from the floor to meet the needs of wheelchair users or the needs of elderly or disabled persons in reaching these sockets without undue bending. Apart from the kitchen sockets all other sockets in the house are at conventional skirting board level.
  6. The houses at Lichtenfels Gardens are each provided with a call system. This can be operated by pull cords situated in every room. The calls are sent to a centralised monitoring system remote from the complex. There is a facility for two-way conversation with the monitoring staff. The staff are able to alert the appropriate services. Although there was evidence of residents' dissatisfaction with the call-out system, there was nothing to suggest that it was not, in substance, an effective system. One criticism was that it had alerted the fire brigade on several occasions to respond to incidents of burning toast. The implication was that it was not an adequate replacement for a warden who might have been expected to assess the needs of the situation more effectively.
  7. Most houses are in single occupancy. We understood that the call system could be operated by use of mobile neck pendants which would be of value if a resident was unable to reach a pull cord. As a couple, the applicants had no need for such a mechanism. In any event, we heard no evidence that it depended for its operation on any physical fitment in the houses.
  8. The houses are also provided with the services of a warden. She is on duty from 8am to 3.30pm. She checks all the single residents as a matter of daily routine. She is based in the house at No. 2 Lichtenfels Gardens but is not resident there. The warden can be alerted from each house.
  9. The house at No. 2 is similar in layout to the applicants' house except that it has been modified by removal of the wall between the livingroom and kitchen. This area now provides a communal sitting room. Residents can use it informally. It is regularly used for social events. However the residents have been advised that, for safety reasons, it should not be used for more than 15 people at a time. It is accordingly of no use for tenants' meetings. Although the average age of tenants currently in the complex is over 80, most tenants are able to take an active interest in affairs and would attend meetings if there was room for them.

We consider the above findings sufficient to cover all the evidence relevant to our task of determining whether the applicants' house falls within section 61(4)(a). Mr Forsyth gave evidence of the inadequacy of the facilities provided and the deficiencies in the maintenance of his house and the communal areas. He wished to buy his house because this would be cheaper than renting. It would allow him to upgrade the house in certain respects and to carry out his own maintenance. His evidence on these matters was not challenged and, indeed, Mr Slamin accepted that there was maintenance work to be done. He did not think that the council would be able to carry out any substantive upgrading in the foreseeable future. It should, however, be recorded that neither the complex as a whole nor the house, gives any immediate impression of poor maintenance. We did not attempt to carry out any form of survey of the state of the premises.

Mr Forsyth also gave evidence of various ways in which the subjects fell short of what he said should be regarded as modern standards for sheltered housing. He produced letters from the housing authority and from the Scottish Executive setting out what they regarded as necessary for sheltered housing. The facilities provided fell short of this. For example, the heating in his house was by night storage heaters. They were, he said, grossly inefficient and he demonstrated to us how the controls were very stiff and difficult to operate. He had had to provide additional electric heaters. There were no facilities in the complex for washing clothes. Residents had to use a nearby laundrette. The communal facilities were grossly inadequate because there was no room for tenants' meetings. The bathroom door was not fitted with means of unlocking it from outside if an occupant got into difficulty. He accepted that, of course, the door could easily be opened if it had not been locked on the inside. The bathroom did not have special non-slip flooring. This was not said to present any difficulty for the applicants.

Mr Forsyth was an impressive witness. He obviously took a very keen interest in communal activities. He was active in a wide range of voluntary work. His comments were made in moderate terms and seemed, for the most part, well founded. He said that he enjoyed living in the complex. He proposed that he should be allowed to purchase subject to a right of pre-emption in terms of section 64. This would allow the landlord to keep control of the subjects but would give him confidence to spend money on improving them.

Submissions

Mrs Platt referred briefly to the following authorities to show the approach taken by the Tribunal to the provisions of section 61(4)(a): Moonie v City of Dundee District Council 1992 SLT (Lands Tr) 103; City of Dundee District Council v Anderson 1994 SLT 46; Crilly v Motherwell District Council 1987 SLT (Lands Tr) 7; Houston v East Kilbride Development Corporation (unreported 21 May 1993); Holloran v Dumbarton District Council 1992 SLT (Lands Tr) 1; and Martin v Motherwell District Council 1991 SLT (Lands Tr) 4.

It was accepted that nothing turned on any peculiarity of interpretation but Mrs Platt did point out that in Martin the Tribunal had stressed the importance of the call system and services of a warden. The Inner House, however, had reserved its views on that matter: City of Dundee District Council v Anderson, supra. She submitted that it was quite clear that the applicants' house fell within the terms of section 61(4)(a). The Tribunal was not required to exercise any statutory discretion. If, on the facts, the house was found to fall within the statutory definition that was the end of the matter. It was also to be noted that the respondents did not have any discretion. If the house fell within the subsection the landlords had no power to agree to a sale except at full price.

Mr Forsyth did not dispute that the house was one of a group provided with a callout and warden system but he submitted that it did not have sufficient facilities to be regarded as sheltered housing by modern standards. We understood his submission to be that it, therefore, was not "provided with facilities" within the meaning of the section.

Decision

Although we understood from the evidence that section 61(4)(a) is commonly referred to as the "Sheltered Housing Provision" it must be recognised that the section itself makes no mention of that expression. 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. Further it is clear that the statutory provisions direct attention to the facilities in the individual house: City of Dundee District Council v Anderson at page 495. Accordingly the lack of a common meeting place within the complex has no bearing on the question of whether the applicants' house falls within the section.

There is no dispute that the house is one of a group each of which has been provided with a call system and the services of a warden. The house is agreed to be typical of others in the group. It is agreed that the group was specially designed to provide suitable accommodation for the elderly or disabled. Although we heard no evidence of the implications of that in design terms, beyond the specific details which we have set out above, it is clear that this complex of houses serves its purpose well.

In relation to the individual houses, the most obvious feature is that the doors have been specially designed to fit the needs of wheelchair users. This is an essential feature of the house, not easily changed. The fact that the house is on one level with only two low steps at the entrance is, itself, a structural feature which we think can be taken into consideration. It is obviously desirable that the internal floor level be above the outside level and some step or ramp is accordingly unavoidable. It is plain, however, that the intention of easy access has been paramount in the design of all the houses including that of the applicants.

We are satisfied that where features of a house have been deliberately designed with special needs in mind, it is relevant for us to have regard to such facilities even where they can be found in other houses.

For reasons discussed in the case of Martin, we think that a call-out system and the services of a warden are important features in the application of the section. We are satisfied that the existence of these features together with the provision of special wide doors is, in itself, sufficient to bring the case within the provisions of the section.

We accept that there may be a difficulty in deciding whether the existence of minor fitments could be sufficient provision of facilities to bring a house within the terms of the section. In the case of Anderson, the Inner House said, "We do not consider that the renewal of the central heating system and the fitting of a handrail [at the front door] constituted the provision of facilities "specially designed or adapted for the needs of persons of pensionable age or disabled persons" within the meaning of section 61(4)(a) of the Act". This was, no doubt, directed at the facts of the particular case and we do not think that it can be read as meaning that the existence of such rails is always wholly irrelevant. We think they can properly be taken into account. In an appropriate case it might be necessary to consider carefully the precise nature and number of rails in a particular house. In the present case, the solid rail at the steps and the grab rail at the WC might well have been able to be treated as facilities falling within the section. The shower rail is lighter and less obtrusive but is also a facility designed for the assistance of the infirm. Similarly, the two high level sockets can be seen as facilities designed for use of disabled or wheelchair bound persons. The existence of these various features confirms our view that the house falls within the terms of the section. It is unnecessary for us to consider the weight to be given to them in isolation.

In the circumstances, we consider that we have no option but to confirm that the respondents' decision to refuse the application was properly taken. Mrs Platt agreed that if we found in favour of the respondents it would be appropriate to make no award of expenses.