Landlord and tenant – Public sector housing – Tenants rights – Right to purchase – Bungalow with wheelchair facilities in small development of bungalows and sheltered accommodation – Whether house one of a group designed for persons with special needs and provided with or situated near special facilities – Approach under amended legislation – Standard to be applied – Housing (Scotland) Act 1987, section (as amended by Housing (Scotland) Act 2001), section 61(4)(ea)(i)

Connelly v South Lanarkshire Council
9 March 2007

A development built in 1976 included 4 bungalows and a sheltered housing complex with 34 flats, common rooms, etc. One of the bungalows had been, but was no longer, used as a warden’s house for the sheltered accommodation. The other 3 bungalows were designed for wheelchair users, with external and internal features and facilities, including external ramps, open plan living areas, wider doors, sliding doors, and bigger bathrooms with special facilities. The features were functional but in certain respects did not meet current recommended design criteria. There was no functional relationship between the bungalows and the sheltered housing and the bungalows had no call system. The bungalows and the sheltered housing had different postal addresses. One of the joint applicants had been severely disabled for many years, and they had been joint tenants of one of the bungalows since 1978. One of the other bungalows, of similar design and facilities, had been sold to its tenants prior to the coming into force of the amendments made by the Housing (Scotland) Act 2001. Questions arose about the interpretation and application of Section 61(4)(ea), which now provides that the right to purchase 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-

  1. the houses are provided with, or situated near, special facilities for use by their tenants (whether or not exclusively),
  2. the tenants of the houses are provided with housing support services (within the meaning of section 91 of the Housing (Scotland) Act 2001.”

Held the right to buy was excluded by Section 61(4)(ea)(i). Case law under the previous provision must be treated with care. Under the first part of the amended provision, it was necessary first to consider whether the house in question had been ‘designed for persons with special needs’ and, if it had, to consider whether it was one of a group which had been so designed. The ‘special needs’ need not be the same form of special needs throughout the group. Under the second part, which was in the present tense and so had to be considered as at the date of the application, “the houses” were the houses in the identified group. This part of the test does not require group facilities: it was the houses, not the group, which had to satisfy it. The applicants’ submission that factors relevant to the first part of the test – the design test – could not be relevant to the second part could not be accepted. The design and the facilities need not be assessed according to modern design criteria, although the second part of the test must be met at the time of the application to purchase. There might be cases where, as a matter of fact and degree, the facilities were so minor, so commonplace or so outdated that it could not be said that the houses were provided with special facilities. A house which had been sold before the date of the application in question could not count as part of the group because the second part of the test could not be satisfied (so that in this case, if the group had included only the three bungalows for wheelchair users, one of which had been sold, there would no longer be a ‘group’). There was a clear practical onus on respondents who sought to rely on this provision.

On the evidence, it was clear that there was substantial design provision to meet the tenant’s special needs as a wheelchair user, although there were a number of identified respects in which the house did not meet modern recommended standards. A valuer’s opinion that the house was a normal bungalow with ‘the odd bit of adaptation’ could not be accepted. The bungalows and the sheltered complex were close geographically and could still be said to be on one site. There was no functional relationship, but the respondents’ submission that this was not required was correct: that was a factor to be considered (for example, so as to be an element in forming a group where houses, though geographically close, were interspersed among others) but not an essential requirement. Even with the former warden’s bungalow and the bungalow which had been sold omitted, the applicants’ house was one of a group of houses, including the sheltered flats, which had been designed for persons with special needs. The second part of the test was also satisfied, as a matter of fact and degree. The applicants’ submission that there was not sufficient evidence of the provision of special facilities to other houses in the group was not accepted: there was clear, albeit fairly general, evidence of such provision at the sheltered housing complex, and also sufficient on a balance of probabilities and applying a reasonable standard, in relation to the third bungalow. Even if there was insufficient evidence in relation to the third bungalow, that would merely take it out of the group, which, with the sheltered flats included, would still be sufficient to satisfy both parts of the test.

Authorities referred to:

Crilly v Motherwell District Council 1988 SLT (Lands Tr) 7
Martin v Motherwell district Council 1991 SLT (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 SLT 46
Holloran v Dumbarton District Council 1992 SLT (Lands Tr) 73
Kennedy v Hamilton District Council 29.6.1994, LTS/TR/1994/9
Forsyth v South Ayrshire Council 18.4.2001, LTS/TR/2001/1
Davidson v Dundee City Council 4.7.2001, LTS/TR/2001/3
Housing (Scotland) Act 1988

See full decision:  LTS/TR/2003/14