Lands Tribunal for Scotland

OPINION

Thomas Connelly and Marie Connelly
v
South Lanarkshire Council

Introduction

[1] This is an application, under Section 68(4) of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001 (“the Act”), for a finding of entitlement to purchase the applicants’ dwellinghouse, which is a bungalow situated in a small development, consisting of four bungalows and sheltered accommodation built in 1976. One of the applicants has for many years been severely disabled, and they have been tenants of the bungalow since 1978. The respondents refused their application to purchase on the ground that the house fell within the provision, now contained in Section 61(4)(ea) of the Act, under which certain ‘special needs’ housing is excluded from the ‘Right to Buy’ provisions. The applicants challenge that decision.

[2] The Tribunal has decided on a consideration of the evidence, much of it undisputed, and submissions, and its own examination of the house and its surroundings, that this house does fall within Section 61(4)(ea) and accordingly that the applicants are not entitled to purchase it and this application must be refusd.

The Issue

[3] The applicants are Thomas Connelly and Marie Connelly, who are admittedly secure tenants of the dwellinghouse at 2 Deer Park Court, Eddlewood, Hamilton. They applied on 16 July 2003 to the respondents, South Lanarkshire Council, to purchase the house. On 13 August 2003 the respondents refused the application on the sole ground that the house was excluded from the Right to Buy scheme in terms of Section 61(4)(ea)(i) of the Act.

[4] Section 61(4)(ea) (as inserted by Section 43(6) of the Housing (Scotland) Act 2001) provides that Section 61, the basic provision under which secure tenants are entitled to purchase their homes, does not apply:-

“(ea) to a house that is one of a group of houses which has been designed for persons with special needs where one or more of the following conditions is satisfied-

(i) the houses are provided with, or situated near, special facilities for use by their tenants (whether or not exclusively),

(ii) the tenants of the houses are provided with housing support services (within the meaning of section 91 of the Housing (Scotland) Act 2001.”

Procedure

[5] After delays caused by a variety of circumstances, the application was heard at an oral hearing on 24 and 25 January 2007. The applicants were represented by Mr Marney, Advocate, instructed by Messrs Freelands, Solicitors, Wishaw. The respondents were represented by Mrs Wolffe, Advocate, instructed by South Lanarkshire Council. Mr Marney called as witnesses the applicant Mr Connelly; Annette Wales, 1 Deer Park Court, a former tenant of a similar neighbouring house who had purchased under the legislation as it stood before amendment; James Struthers, ARIBA (Scot), MRICS, a chartered architect and chartered surveyor who had inspected and reported on the standard of accommodation at 2 Deer Park Court; and Lachlan Macfarlane, MRICS, a valuation surveyor who had also inspected the house. The respondents called as a witness Kenneth Barclay, a Customer Services Manager and Depute Area Housing Manager in the respondents’ Housing and Technical Resources Department. The parties also lodged productions, notes of arguments and written submissions. The Tribunal made an accompanied inspection of the dwellinghouse and surrounding area. We should mention two problems which arose in the later stages of this case. Firstly, the applicants introduced substantial amendments very shortly before the date fixed for one hearing, causing the respondents to apply for a discharge of that hearing. Secondly, when it came to the hearing which did take place, the Tribunal had requested notes of arguments from the parties. The applicants’ note set out submissions (of which there had been no previous indication) in reliance on Article 14 of the European Convention on Human Rights and Article 1 of the First Protocol. The respondents’ counsel prepared submissions in answer and intimated and copied authorities running to over 300 pages. In the event, Mr Marney withdrew one part of this case at the beginning of the hearing and the other at the conclusion of the evidence.

Authorities referred to:-

Crilly v Motherwell District Council 1988 S.L.T. (Lands Tr.) 7
Martin v Motherwell District Council 1991 S.L.T. (Lands Tr.) 4
Brabender v City of Glasgow District Council 29.5.1991, LTS/TR/1991/12
Anderson v City of Dundee District Council 24.6.1991, LTS/TR/1990/332; (on appeal) City of Dundee District Council v Anderson 1994 S.L.T. 46 (Extra Division)
Holloran v Dumbarton District Council 1992 S.L.T. (Lands TR.) 73
Kennedy v Hamilton District Council 29.6.1994, LTS/TR/1994/9
Forsyth v South Ayrshire Council 18.4.2001, LTRS/TR/2001/1
Davidson v Dundee City Council 4/7/2001, LTS/TR/2001/3
Housing (Scotland) Act 1988

The Facts

[6] On the basis of the evidence and submissions, and the inspection of the applicants’ house and its surroundings, the Tribunal find the following:-

[7] The applicants are Thomas Connelly and Marie Connelly residing together at 2 Deer Park Court, Eddlewood, Hamilton. They became joint tenants of the house in June 1978. Mrs Connelly was then, and continues to be, a wheelchair user. Missives of let were signed by the applicants on 16 October 1984, the documents being in the Council’s standard form with no reference to “special facilities”. The applicants have a Scottish Secure Tenancy. They submitted an application to purchase in July 2003. This was refused by South Lanarkshire Council by letter dated 13 August 2003 on the grounds that Section 61(4)(ea) of the Housing ( Scotland) Act 1987, as amended, applied

[8] Deer Park Court comprises three detached bungalows built in 1978 and situated in close proximity around the end of a short road leading off Deer Park Place. All three were originally developed and owned by South Lanarkshire Council. No. 1 was for many years occupied by a wheelchair user. It was sold by the Council to the tenant in March 2000, i.e. before the provisions in issue in this application were enacted. Nos. 2 and 3 Deer Park Court are separated by the garden of No. 2, a distance of some 14 metres and No. 1 Deer Park Court lies about 8 metres (at its nearest point) to the east of No. 2. The bungalows are all of the same design, both externally and internally. All three have external ramps, enclosed by low walls with railings, to the front and rear doors for wheelchair access. The internal layouts are identical. Each of the bungalows has a small fenced garden.

[9] Deer Park Place also gives access to Deer Park House which is a two-storey sheltered housing complex with 34 units, common rooms and communal kitchen owned and managed by the respondents. It lies on the east side of Deer Park Place and at its closest point to Deer Park Court is separated by a gap of about 30 metres. Deer Park House has a communal kitchen, laundry and common room. The individual flats have a call system and access to a (now) non-resident warden service. Close to the entrance of Deer Park House is a detached former warden’s bungalow, which is of similar design to the bungalows in Deer Park Court. In July 2003 this bungalow was used only as a store. It is now let to a tenant with special needs who required ground floor accommodation. The former resident warden served only the residents of Deer Park House and not the tenants in Deer Park Court. The residents of Deer Park Court do not use the common facilities at Deer Park House. There is not, nor has there ever been, any call system or warden services to any of the bungalows at Deer Park Court.

[10] Deer Park House and the three dwellings at Deer Park Court were all built at the same time, under one construction contract and with similar external finishes to the walls and roof. The grassed areas surrounding Deer Park Court and Deer Park House are maintained by the Council and there is no physical boundary between them. At the time of the original development the site was held under one title. It retains the appearance of a single development.

[11] In addition to the external ramps, No. 2 Deer Park Court has the following features designed or provided for wheelchair users:-

[12] Many of the features of No. 2 such as the external ramps, the open plan living and dining room and kitchen area, the larger bathroom, the sliding doors, the wider entrance and the wider internal doorways are features of the original design. Other features such as the bathroom facilities have been refurbished more recently. The respondents respond to tenants’ needs, including special needs, either through their regular capital works programmes, or, if a particular need is identified outwith these, following particular assessments and recommendations. Facilities such as the wet room, shower, grabrails, handrails and hoists have been provided in one of these ways. No. 2 has standard kitchen units because no need for kitchen adaptation has been identified in the situation where Mrs Connelly does not in fact herself work in the kitchen.

[13] These features, whilst functional, do not, in certain respects, meet the Scottish Executive’s recommended standards as set out in the publication “Housing for Varying Needs – a design guide”, published by the Scottish Executive in 1998, particularly in relation to the recommended design criteria for wheelchair users. For example, aspects of the access ramps, the car parking space and some of the interior dimensions, fall short of current recommended standards. There is no legal requirement for existing buildings to be upgraded to meet these current standards. Overall, the house satisfies most of the special needs of a wheelchair user such as Mrs Connelly.

[14] The social housing stock owned by the respondents, as at 31 March 2006, amounted to 27,526 units of which 1269 were sheltered housing units, 475 amenity units and 33 suitable for wheelchair users.

Respondents’ Submissions

[15] The Tribunal invited Mrs Wolffe to make oral submissions first. She first addressed the evidence. She said that Mr Connelly was a reliable and credible witness whose evidence should be accepted in its entirety. He had described the house at the time when the applicants moved in and the scheme of which it was a part, and the adaptations at various times up to the date of the application to purchase. There were design features indicating that the house had been designed for persons with special needs, and also facilities provided to meet special needs. Mr Connelly’s evidence about practical difficulties in the house had not added up to much, and he had not suggested that he was not living in a house designed to accommodate his wife or that it did not have special facilities. He was the person with direct knowledge. Mrs Wales had given evidence that the house at No. 1 had an identical layout. The evidence of Mr Struthers was wholly irrelevant, in particular in relying on the 1998 publication, which was not applicable to the applicants’ house, which had not been either built or refurbished when that guidance applied. He had only looked at the parts applying to wheelchair use. That guidance was in any event advisory, not binding. He had not identified any aspects of the house which fell short of any mandatory requirement. His evidence did not address the question whether the house had been designed for persons with special needs. Mrs Wolffe renewed an objection which she had made during the hearing to the admissibility of Mr Struthers’ evidence, on the ground that it did not fulfil the purpose of expert witness evidence of equipping the tribunal with knowledge of the subject matter in dispute. As to Mr Macfarlane’s evidence, Mrs Wolffe submitted that this too was of no relevance, and his contention that this was just a normal bungalow with some adaptations should be rejected. The evidence of Mr Barclay should be accepted in its totality. He had spoken to the coherence of the scheme including the sheltered housing complex. There was a dedicated budget to fund alterations or the supply of facilities and a specific allocation policy.

[16] On Section 61(4)(ea), Mrs Wolffe did not accept that the onus was on the respondents. This was not an exception to the right to buy, but a qualification which concerned the delimitation of the scope of the right.

[17] She submitted that the opening section was a threshold requirement, the focus of which was on a group of houses designed for persons with special needs. The emphasis was on design features common to the group, and the design features were directed towards persons with ‘special needs’. Various provisions in the legislation showed a policy of protecting authorities by retaining special needs accommodation under their control. ‘Special needs’, she submitted, related to the characteristics of a class or group of persons whose physical needs were other than or different from ‘ordinary needs’, and was likely to encompass both the physically disabled and those whose physical vulnerabilities arose by reason of old age. There was no statutory definition, but Section 56 of the Housing (Scotland) Act 1988, as well as Section 64(4) of the 1987 Act, referred both to persons of pensionable age and to disabled persons as having special needs. She listed the factors of design and facilities which she said were features designed to accommodate the special needs of the disabled and elderly persons residing, respectively, in the bungalows and the sheltered accommodation.

[18] On the ‘group’ requirement, Mrs Wolffe submitted that not much was required and there was no requirement for a functional relationship among houses in the group. A geographical group of houses meeting the design test, within the same boundary, was sufficient. To the extent that section 61(4)(ea) contained a similar requirement to the old section 61(4), cases on what constitutes a group might still assist. Reference was made to Brabender v Glasgow District Council, Crilly v Motherwell District Council, Martin v Motherwell District Council and City of Dundee District Council v Anderson (before the Tribunal). It was submitted that (a) the scheme including the sheltered housing and the bungalows, alternatively (b) the three bungalows, or alternatively (if the sale of No. 1 took that house out of the group) (c) Nos. 2 and 3 Deer Park Court, constituted a ‘group’ within the meaning of the Act. Ownership was irrelevant, and the features of No. 1 were no less ‘designed for persons with special needs’ now that that house was privately owned. The fact that some houses built to comply with the latest Building Regulations might contain ramped access would not detract from the ‘design’ of the earlier houses.

[19] As to ‘special facilities’, matters considered under the threshold requirement were not precluded, since features which were part of design might also constitute ‘special facilities’. However, even looking in isolation at facilities provided subsequent to the original building of the house, there were sufficient ‘special facilities’ to meet this test.

[20] Mrs Wolffe concluded by addressing some findings proposed by the applicants. Contractual leasing arrangements were irrelevant. There had been no duty on the respondents to give reasons for their decision to refuse the application. She reserved any submission on expenses.

Applicants’ Submissions

[21] Mr Marney first spoke to draft findings in fact which he had prepared. These included findings about the conditions of the applicants’ lease, in particular that there was no reference to the house being specially designed or having special facilities. In their letter of refusal of the application to purchase, the respondents had not indicated the facts upon which they relied for their conclusion that Section 61(4)(ea) applied. A number of findings on the evidence of Mr Struthers and Mr Macfarlane were proposed.

[22] Mr Marney submitted that the correct approach to this provision was to regard it as a possible exclusion of the right which the tenant would otherwise have. The onus was therefore on the respondents.

[23] The concept of a ‘group’ of houses was similar to that under the previous provision. Particular reliance was placed on the approach taken in Crilly v Motherwell District Council, where the importance of the call system and warden services were identified: where no such facilities were provided the constraint on the right to purchase was not justified. Although that definite requirement had been removed, the general approach still applied. The Tribunal had seen a problem in relation to such communal facilities where houses were in private ownership, and the ‘group’ requirement should be interpreted accordingly. No. 1 Deer Park Court, having been previously sold, could not sensibly be viewed as part of the group, which must refer to property in the ownership of the landlords. Nor could the warden’s house be part of the group. Deer Park House was not physically proximate to, and had no functional relationship at all with, the houses in Deer Park Court. It represented a materially different type of housing provision with the housing units located close together to facilitate the provision of services to residents in a sheltered housing development. The applicants’ house was not in the same group. Mr Marney accepted that three houses could constitute a group, but here, there were only two (Nos. 2 and 3 Deer Park Court), which could not.

[24] As to Section 61(4)(ea)(i), Mr Marney referred to the words in brackets, “(whether or not exclusively)” and suggested that this might refer to cases in which some of the houses were tenanted and not others. The ‘special’ facilities had to be provided to the group, not the individual houses, again for the reasons explained in Crilly, supra. That remained the correct approach. “The houses” referred to the group of houses. This was a provision to exclude sheltered accommodation, the whole point being the provision of special facilities to the group. Persons living in a house designed for persons with special needs were entitled to purchase it and only became disentitled where special facilities were provided to the group. That could not be said of the features relied on by the respondents. Such features could not be the same as the design facilities relied on, as otherwise there would be no effective restriction on this exception once a group had been identified. Further, there was no evidence of the provision of such facilities to any other house.

[25] Mr Marney submitted that the concept of design ought to be assessed with reference to the broad standards in relation to such matters as at the date of the application. Otherwise, exclusion might be given to a house so out of date that it was of little use. The respondents could upgrade houses built in the 1970s. Whether the design features were sufficient was a question of fact and degree. Mr Struthers’ evidence related to wheelchair users, that being the group identified by Mr Barclay, and negatived the application of the provision. There must be something other than purely historical design. Account should also be taken of Mr Struthers’ view that wheelchair users on their own would have great difficulty. The application should be granted, with expenses reserved.

Tribunal’s Consideration

The Approach under Section 61(4)(ea)

[26] Since the introduction, under the Tenants’ Rights, Etc (Scotland) Act 1980, of the right to buy, which is generally available to ‘secure tenants’ of public landlords who can establish the requisite continuous period of tenancy, there have always been particular provisions aimed at protecting some of the landlords’ housing stock. From the outset, the right did not apply to a house which was:-

“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.”

That formulation was repeated in section 61(4)(a) of the Act of 1987, but has been recast within what was referred to as ‘The Modernised Right to Buy’ by the Act of 2001, the provision now being Section 61(4)(ea) of the 1987 Act. This is the first case in which the Tribunal has heard submissions on the meaning and effect of the new provision. Case law under the previous provision must be treated with care.

[27] It may also be mentioned by way of introduction that there has always been an alternative situation, in which a house with facilities substantially different from those of an ordinary house, and designed or adapted for persons with special needs, is not excluded from the right to buy but the landlord is entitled under Section 64(4) of the Act to impose a condition giving a right of pre-emption. That provision, which was not amended by the 2001 Act, applies to isolated houses, whereas both the previous Section 61(4)(a) and the present Section 61(4)(ea) require the house to be part of a group of houses. Section 64(4) has been referred to, in questions about the application of Section 61(4), as confirming that the legislation does give the right to buy houses designed or adapted for occupation by persons with special needs: Section 61(4) only applies to some such houses (see, for example, Crilly v Motherwell District Council, at 1988 S.L.T. (Lands Tr.) 8I).

[28] Section 61(4)(ea) is in two parts. The first part, described by Mrs Wolffe as the ‘threshold requirement’, requires the house to be “one of a group of houses which has been designed for persons with special needs”. This is a slightly difficult formulation: it clearly focuses attention on the need for a group of houses, but what, if anything, does it lay down in relation to the individual house? It seems to us that the formulation, although not the content, of this part of the provision is the same as the previous formulation – “one of a group which has been provided with…” That being the case, we should approach the issue in the same basic way as was set out in authoritative guidance by the court in City of Dundee District Council v Anderson, at 1994 S.L.T. 49J:-

“In our opinion, the correct approach to this issue is to consider whether, at the material date, the house in question had been provided with the specified facilities and, if it had, to go on to consider whether it was one of a group which had been provided with such facilities. If the house had not been provided with facilities as described in s 61(4)(a) then it could not, in our opinion, be one of a group which had been provided with these facilities.”

Thus, we should first consider whether the house in question had been “designed for persons with special needs” and, if it had, go on to consider whether it was one of a group which had been so designed. There is no doubt that we have to consider these questions as at the date of the tenant’s application to the landlord (in this case, July 2003), but it should be noted that the tense used in this part of the test (“has been”) is, as it was in the previous provision, the past tense.

[29] We think that applying that approach to the first part of the test also makes the second part easier to apply. The second part is not completely separate from the first. Read short, in a case where only Section 61(4)(ea)(i) is in issue, the provision is that the Act does not apply to a house that is one of a group of houses which has been designed for persons with special needs “where . . . the houses are provided with, or situated near, special facilities for use by their tenants (whether or not exclusively).” “The houses” must be the houses in the identified group. Following the above approach, the individual house is one of these, so must itself meet this part of the test. This might suggest that, having identified a group, one has then to ask whether each and every house in the identified group meets this part of the test, but we do not think that that is necessary. At least in most cases, it should be possible to answer that question as a generality because the precise composition of the group will not matter. In other words, the extent of the group is not finally established until the second part of the test has been applied. Does the house meet the design requirement? If so, is it part of a group which meets that requirement and whose houses are provided with or situated near the special facilities? The status of other houses may, however, be crucial if there are only a small number of houses in the group, which would be the position on one view of this case.

[30] Again, the tense used in this part of the provision (“are”) should be noted. By contrast with the first part (and with the previous provision), the test in relation to the provision of facilities is not a historical one but a present one. The house must have the special facilities at the time of the application to purchase.

[31] A number of submissions were made to us in relation to the interpretation of the provision as it now stands. Firstly, it is, we think, argued on the applicants’ behalf that the ‘special needs’ must be the same sort of special needs throughout the group, so that where some houses are sheltered housing for the elderly and some, such as the applicants’ house, are for wheelchair users, they cannot together form a group. We cannot accept that. We are satisfied that ‘persons with special needs’ may include persons with varying kinds of special needs. The contrast is with persons whose needs are ordinary. A group of houses might have been designed for persons with a variety of special needs and we cannot read into the provision any restriction to design for persons who all have the same needs. Further, the phrase seems to us to include the elderly as well as wheelchair users. If that were not so, the provision would not cover normal sheltered housing for the elderly. The wording of Section 64(4) (which, as we have said, has not been amended) seems to support this – “…which has been designed or adapted for occupation by a person of pensionable age or disabled person whose special needs require accommodation of the kind provided by the house”.

[32] Secondly, a submission which was perhaps crucial for the applicants was that the second part of the test calls for the provision of some form of group facilities. It was argued that “the houses” is a reference to the group and that the requirement of this part of the test is for the provision of special facilities to the group. The submission relies heavily on part of the Tribunal’s reasoning in Crilly v Motherwell District Council, where it was said that where no facilities such as a call system and warden services were provided the constraint on the right to buy was not justified, and indeed the provision which is now Section 64(4) implied a right to purchase where the house was not one of a group and did not have these facilities.

[33] We do not accept that the provision as it now stands should be read in that way. It might be thought that the group requirement should involve, in addition to the group design requirement, the provision of group facilities, but that is not how the provision now reads. The requirement (as the previous provision was interpreted by the Tribunal) for the individual house to have the benefit of the call system and warden service has clearly been removed, presumably because such services are no longer by any means universally provided even to clusters or complexes of sheltered housing. We recognise that the new provision might still have required some form of group facility without specifying the form of that facility, but we cannot read it so. “The houses” are the houses in the group, not the group of houses. The second part of the test might have been applied to the group, but it was not. It is the houses, not the group, which require to be provided with (or situated near) the special facilities for use by their tenants. The ‘group’ requirement relates to the design of the houses – has the group of houses been designed for persons with special needs? It does not relate to the provision of facilities, where the question is rather whether the houses in the group are provided with special facilities.

[34] We have considered whether the passage in brackets – “(whether or not exclusively)” – assists in this interpretation issue, but think that it is consistent with either view. It might mean ‘exclusive to the individual tenants’, supporting our interpretation, but we think that it might also mean ‘exclusive to the houses in the group’, referring for example to some communal facility which was available to a wider community.

[35] This interpretation still recognises that there is a right to purchase houses which are not in a group although they have special facilities. However, the Parliament has not only removed the requirement for the call system and warden but appears also to have considered that there is sufficient justification for the exclusion of the right where the house is one of a group designed for persons with special needs and the houses in the group have special facilities. A house may be in a group of ‘special needs’ houses although designed and equipped for a person whose needs are such that he or she requires such regular or permanent personal care that group facilities such as a call system are not appropriate or necessary.

[36] The applicants submit that factors relevant to the first part of the test cannot also be relevant to the second. They suggest that where design features have been identified in the first part – as here, for example, the provision of ramps providing level access – the same features cannot be relied on in relation to the second part. We do not agree. Provided that the correct questions are asked at each stage, we do not see why a design feature should not also count as a ‘special facility’. The ramps, if they had been a feature of the design and were still provided at the time of the application, could go towards satisfying both parts.

[37] Another submission important to the applicants’ position, and which of course underlies Mr Struthers’ evidence, is that the design and the facilities must be assessed according to modern design criteria. We do not think that this can be correct and see no reason to depart from the approach which the Tribunal has consistently taken to submissions along these lines. As it was put in Forsyth v South Ayrshire Council, 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”.

That approach applies all the more strongly to the argument in the present case that, while facilities have been provided, they are not up to the standards set out in modern design guidance. There is nothing in the present provision to alter that approach. The use of the past tense in the first part of the test does not fit the applicants’ approach, which if it were correct would require landlords to alter the design of houses each time an improved set of guidelines was issued in order to retain their existing ‘special needs’ housing stock.

[38] We do agree with the applicants, in relation to both parts of the test, that these are questions of fact and degree. Further, the use of the present tense in the second part of the provision as it now reads does make clear that this requirement must be met at the time of the application to purchase. The Tribunal, and the court in Anderson, supra, has been alert to questions as to whether particular facilities relied on might be so commonplace that they could not qualify as ‘special’ ( Anderson, supra, at page 50B-D, Martin v Motherwell District Council at 1991 S.L.T. (Lands Tr.) at page 6A-B, Forsyth, supra, at page 6, and Davidson v Dundee City Council, at page 7). ‘Special facilities’ must, we think, be read in context, i.e. the facilities must relate to tenants’ ‘special needs’. There may be cases in which at the time of the application to purchase the facilities provided are so minor, or so commonplace, or so outdated, that it cannot be said that the houses are provided with special facilities. To meet the test set out in the statute, they must be of some reasonably substantial utility in relation to the tenants’ special needs. That, however, is not the same as asking how the facilities match up to standards set out in guidelines current at that date. In our opinion that would involve too strict a standard which, again, might require the landlord to update facilities each time new, improved guidelines were issued.

[39] The applicants submitted that a house which had been sold to its tenant before the date of the application in question cannot count as part of the group. It seems to us that this follows from the wording of the second part of the test as it is now expressed. Section 61(4)(ea)(i) and (ii) set out a test in the present tense and also refer to the “tenants” of the houses. It seems to us to follow that houses which have been sold and no longer have tenants can no longer be in the group. Mrs Wolffe submitted that ownership was irrelevant: the features of the house were no less ‘designed for persons with special needs’ just because it was now in private ownership. That may be right but it does not address the second part of the test, which lays down a further requirement for the houses in the group.

[40] Finally on the general approach to Section 61(4)(ea), we should mention the question of onus. The question of legal onus is rarely, and not we think in the present case, important, and parties did not make detailed submissions on it. In cases of a slightly different sort, where one of the exceptions in Schedule 2 of the Act (‘Tenancies which are not secure tenancies’) is relied on, the Tribunal has always been clear that the onus lies on the landlord to demonstrate that the exclusion applies. The matter does not appear to have been explicit in decisions under the old Section 61(4), but the Tribunal’s approach seems to have been on the same basis. It is difficult to regard this provision as other than setting up a test which is to be satisfied. We note that the Tribunal in Anderson, supra, expressed itself as follows (at page 3):-

“If therefore we are to uphold the Council’s notice of refusal, the Tribunal must be satisfied, firstly, that the applicants’ house does form part of a group of houses provided with such facilities and, secondly, that these facilities have indeed been provided to the applicants’ house.”

The court put the two questions the other way round, but in this context it can be noted that the grounds of appeal, reproduced at 1994 S.L.T. 47G-J, do not complain of any misdirection on onus and appear implicitly to accept that the Tribunal required to be satisfied on the application of the provision. There was no suggestion otherwise from the court. Other cases have made reference to the provision as an “exception” (e.g. Holloran v Dumbarton District Council at 1992 S.L.T. (Lands Tr) 74). On any view there is a practical onus on the respondents if they seek to rely on this provision.

Application to present case

[41] There was no real dispute on the facts. We entirely agree with Mrs Wolffe that both Mr Connelly and Mr Barclay are to be accepted as straightforward and reliable witnesses, and the same can also be said of Mrs Wales, although her evidence seems to us to be of limited assistance. Mr Connelly in particular impressed us with his straightforwardness as well as his evident dedication to looking after Mrs Connelly for very many years. He described how he and his wife were the first tenants of this house, having been priority applicants because she was a wheelchair user, and how, over the years, requests for special facilities had been granted on the basis of their needs. These facilities did not extend over the whole house. For example, the house has an ordinary kitchen because Mrs Connelly does not do any of the cooking. In some respects the house is like an ordinary house, but it was clear on the evidence and our inspection that it has substantial special provision to meet Mrs Connelly’s special needs as a wheelchair user. It is also clear that the four bungalows were developed along with the sheltered housing complex within a common boundary, with three of them being designed and fitted for wheelchair users and the fourth as a warden’s flat. We do, however, entirely accept that the bungalows have never had the warden or any call service, their tenants make no use of any facilities within the sheltered housing complex and there is no suggestion that any such facilities were or are available to them. On the evidence, there is apparently no communing between the bungalows and the sheltered housing at all (and no suggestion of any relevant connections among the bungalows themselves).

[42] As far as the professional evidence of Mr Struthers and Mr Macfarlane is concerned, firstly, we reject Mrs Wolffe’s submission that Mr Struthers’ evidence was inadmissible. Apart from the question whether his evidence, being linked to current design guidelines, is of any value, we understood Mrs Wolffe to be suggesting that the expertise which he was using, in measuring and evaluating the features at the house against the guidelines, was an expertise which the specialist Tribunal itself had, he could not therefore assist the Tribunal and his evidence was therefore objectionable. Obviously, when sitting with an expert surveyor, as in the present case, the Tribunal can take some expert evidence more quickly and easily, but we reject the suggestion that such evidence is inadmissible. Specialist detailed inspection and examination, as well as interpretation of specialist material such as design guidelines, is of itself of use to the Tribunal.

[43] The clear tenor of Mr Struthers’ report and evidence is that the house does have a number of design features and facilities for wheelchair users. Some of these are adequate but there are quite a number of identified respects in which the house does not meet modern recommended standards. Mr Struthers accepted that the standards to which he was referring are only advisory, that there is no requirement for an existing building to meet them and that it was reasonable to assume that at the time the house was built, it complied with current building regulations. It is also clear that Mr Struthers was addressing himself to modern standards in relation to wheelchair users in particular, rather than persons with special needs in general. Indeed, he was at times thinking of wheelchair users occupying the house on their own, which is not, we think, a necessary restriction to make when considering whether houses are designed or fitted out for persons with special needs. Placing the evidence of Mr Connelly alongside that of Mr Struthers, we think that while there are certainly some shortcomings by modern standards the house does on the whole meet Mrs Connelly’s needs.

[44] We reject Mr Macfarlane’s opinion that this house is a normal bungalow with “the odd bit of adaptation”. It seems to us that this ignores the overall picture which one gets on entering and looking round this house and seeing the two ramps with walls and rails, the layout of the living, dining and kitchen area, the larger bathroom with special shower, washing and toilet facilities and wider door, the two hoists, the sliding doors in the corridor and the raised sockets and lower switches. It may possibly be that Mr Macfarlane as a valuation surveyor was considering this as a valuation issue, i.e. as to whether the special features affected the value of the house, but that is nothing to the point.

[45] Turning to the test in Section 61(4)(ea), we should first mention that we attach no significance to two matters to which Mr Marney drew our attention, viz. (a) there are no special conditions of the tenancy in relation to providing for special needs, and (b) the respondents’ letter of refusal of the application to purchase only identifies the ground of refusal and does not set out the reasons or the facts on which the decision was based. As to (a), this is a statutory right superimposed on the tenancy conditions and there is no requirement to make any provision in the tenancy conditions (as there might have been – c.f. paras. 2, 3, 5 and 7 of Schedule 2 of the Act, in relation to exceptions from secure tenancies). As to (b), the respondents complied with Section 68(3) of the Act, and in our opinion there was no further requirement on them at that stage.

[46] We are satisfied on the basis of our findings that this house was designed for persons with special needs. This, as it seems to us, is amply demonstrated by design features including the open plan living room, dining room and kitchen, the wider than normal doorways, the spacious bathroom and the two external ramps with walls and railing. We omit from this list the wider corridors and hallway because this was not entirely evident to us although there is no particular reason to doubt that they are slightly wider than in mainstream council houses of that era.

[47] The further question which has to be answered in relation to the first part of the test, as to whether the house was, on the material date, one of a group which had been designed for persons with special needs, is more difficult. The respondents’ primary submission is that this is so because the bungalows and the sheltered housing complex constitute such a group. We are clear that the fact that the bungalows in Deer Park Court, may form a natural group does not prevent there being a larger group. The requirement is clearly substantially geographical: there must be a group of houses in close physical proximity. It should be remembered that the sheltered housing complex is not one but a large number of ‘houses’, which are defined as including separately occupied parts of buildings and in particular flats (Section 338 of the Act), and the lack of complete visual congruity between the sheltered housing and the bungalows should be ignored. Apart from the one bungalow already sold, the bungalows and the sheltered housing are not dispersed among other houses. They were designed and built as an overall development on the same area of ground. Although this is largely open, for example on the road side, we think that it can still correctly be described as one site, which is, for example, fenced off from the houses on the west side and the wooded area to the south. In expressing that view, we are not forgetting that Deer Park Court is set slightly apart from Deer Park Place, but it does lead off from it and is in close proximity to Deer Park House.

[48] However, there is no functional relationship. Mrs Wolffe submits that such is not required. It seems to us that this is correct. A physical group of, say, five houses built together might each be specially designed for persons with special needs (which do not in our view require to be the same special needs), have no communing between them in any shape or form and no call system or warden service, and yet (if they also satisfy the second part of the test) fall within Section 61(4)(ea). A functional relationship might be an element in forming a group, where for example the houses, though geographically close, were interspersed among other houses. In short, it is a factor to be considered but not an essential requirement.

[49] Overall, with the benefit of our visit to the site, and not forgetting that the former warden’s bungalow and No. 1 Deer Park Court are not part of the group, we have reached the view in this case that the applicants’ house is one of a group of houses, including the sheltered flats, which had been designed for persons with special needs.

[50] We have drawn to only a limited extent on case law under the provision as it previously stood. The case of Crilly, heavily relied on by the applicants, is useful in showing the need for a geographical group. We have not, however, relied on other cases in which there has been an element of dispersal. Some degree of dispersal of special needs housing is, in the Tribunal’s experience, not uncommon. In Kennedy v Hamilton District Council, four houses for wheelchair users had been built along with some ‘mainstream’ houses on one side of a street and houses for the elderly and a warden’s house on the other side. Section 61(4), as it then stood, was held to have been satisfied. This case might seem a fortiori of that, but it should be remembered that at that time there was the specific requirement for the call system and warden service, which was satisfied in that case. Situations in which there are not such shared facilities will under the new provision require to be considered carefully. This is a decision in the particular circumstances under the new provision.

[51] If we are wrong in regarding the flats in the sheltered housing complex as part of the group, we are satisfied that we would require to hold that the applicants’ house was not one of a group of houses as required by Section 61(4)(ea) and accordingly that the provision was not satisfied. The respondents did not seek to rely on the warden’s house as part of a group in that event. We would then be considering only Nos. 1, 2 and 3 Deer Park Court. We have already indicated that the second part of the test appears to us to require current provision of special facilities (or alternatively housing support services) for the tenants of the houses, so that a house which had previously been sold cannot be part of the group. No. 1 would thus be excluded, leaving only Nos. 2 and 3. We do not consider that two houses could constitute a group, a proposition only faintly maintained by Mrs Wolffe.

[52] However, on the basis of our view that there is a relevant group under the first part of the test, we have to consider the second part. At the time of the application, were the houses provided with ‘special facilities’ for the use of their tenants? (It is not suggested, in relation to the applicants’ house, that it is ‘situated near’ such facilities). Viewing the question as one of fact and degree in the circumstances, we consider that this part of the test is satisfied. The main evidence of course has related to the applicants’ house. That evidence satisfies us that it is (or was at the time of the application to purchase) provided with relevant ‘special facilities’. These included, in our view, the external ramps, the sliding doors, facilities in the bathroom such as the non- slip floor, the shower, the geberit toilet, the additional basin, the grab rails and the hoist, the hoist in the bedroom and the lower electrical switches and higher sockets. The facilities are not comprehensive – the kitchen for example not being provided with special facilities; they are not all used – Mr Connelly finds it more convenient not to use the hoists, but they are in working order (c.f. Anderson, supra); and Mr Struthers has demonstrated that they are by no means perfect in every respect. In our view, however, they are more than sufficient to meet this test, and we would be of the same view if we were required to omit features included in the consideration of design.

[53] This part of the test, however, refers to “the houses”, i.e. the houses in the group. Mr Marney submits that there is not, or not sufficient, evidence of the provision of special facilities to other houses in the group. We accept that the evidence as to the extent of provision of facilities in the other houses in the group which we have identified under the first part of the test, i.e. No. 3 Deer Park Court and the flats in the sheltered housing complex, was not extensive. However, we reject this submission. Even if it is accepted that the onus is on the respondents, this is an overall test on the balance of probabilities in relation to a number of houses. As far as the sheltered housing complex is concerned, Mr Barclay spoke without contradiction, albeit in fairly general terms, of the common facilities there which are special facilities for the elderly. In particular, although they are generally expected to be fit enough to sustain their tenancies, these tenants need and have the comfort of a call system and warden service. They still have a warden service although not any longer a resident warden, and there are other special facilities. In relation to No. 3 Deer Park Court, we did not hear evidence about, or inspect, its internal facilities, but we have evidence that it has exactly the same design features as the other two. It too has the external ramps and walls. There is also clear evidence from both Mr Connelly and Mr Barclay that the respondents over the years have responded to the requirements of tenants who are wheelchair users. There is no specific evidence as to the resultant provision, at No. 3, on the relevant date, of special facilities inside the house, but applying a realistic standard of proof in relation to the other houses in a large group of houses, we think that there is sufficient evidence to include No. 3 in the group as having satisfied both parts of the test. However, even if we were wrong in that, the result would simply be that No. 3, having satisfied only the first part of the test, would drop out of the group and, with the sheltered flats included, there would still be a substantial group of houses satisfying both parts of the test.

[54] Accordingly, in our opinion, the applicants’ house falls within the statutory provision and is excluded from the right to buy.

Decision

[55] In these circumstances we must refuse this application. We shall consider separately any issue which may arise in relation to expenses.