Lands Tribunal for Scotland

OPINION

Violet Halliburton
v
Dundee City Council

Summary

The applicant asks the Tribunal to find that she has a right to purchase the house which is her home. Her landlords refused her application to purchase and oppose this application to the Tribunal, on the grounds that this is a case where the right to buy is excluded under the relevant legislation because the house is one of a group of houses designed for persons with special needs and the houses are provided with, or situated near, special facilities for use by their tenants. The house is one of a number of renovated tenement flats which the landlords describe as a sheltered housing complex.

The Tribunal, after considering the parties’ submissions and inspecting the house, has decided that the exemption on which the landlords rely in this case has been established because the house does come within the conditions laid down by the statute for the exemption to apply. We must accordingly refuse this application.

The Issue

Section 61(4)(ea) of the Housing (Scotland) Act 1987 (“the Act”), as amended by the Housing (Scotland) Act 2001, provides that Section 61, the provision which sets out the right of a secure tenant to buy the house, 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) …”

It is not in dispute that the applicant would otherwise qualify for the right to buy, and the landlords rely only on (ea)(i) above.

Procedure

The applicant, Mrs Violet Halliburton, who was represented by Messrs Campbell Boath, Solicitors, Dundee, applied under Section 68(4) of the Act for a finding as to her entitlement. The respondents, Dundee City Council, opposed the application and lodged Answers. Parties agreed that the case should be decided on the basis of written submissions together with an inspection of the property, and time was allowed for further written submissions. The respondents elaborated on their submission, and also lodged productions, including copies of the application to buy; tenancy agreements; a location plan; a house type and elevation plan; and printouts of the ‘Locations of Private Owners’ and ‘Location of Sheltered/Adapted’ in connection with housing repairs. In their submissions, the respondents called on the applicant to identify the ‘similar properties’ which she claimed had been sold to other sitting tenants. The applicant did not make any further submission and did not answer that call. The Tribunal inspected the property in the presence of the applicant and her son on 24 November 2006.

Authority referred to:-

Davidson v Dundee City Council, Lands Tribunal for Scotland, LTS/TR/2001/3, 12.6.2001

Facts and Circumstances

On the basis of the submissions (and keeping in mind the applicant’s failure to answer the respondents’ submission), and also of their inspection of the applicant’s house, the Tribunal finds the following facts:-

1. The applicants is aged 74 and has a Scottish Secure Tenancy of the ground floor flat at 238 Clepington Road, Dundee. She became tenant of that house in 1999 having previously been a council tenant at other addresses in Dundee. Her application to purchase, dated March 2006, was refused by the respondents on the grounds that Section 61(4)(ea) applied.

2. The houses in this part of Clepington Road and at Caird Terrace near its junction with Clepington Road are tenement houses in an area in which there has been extensive repair and renovation of the external fabric of the tenements. A substantial number (around 60) of adjoining ground and first floor flats at Nos. 212 to 238 Clepington Road and 3 and 4 Caird Terrace form a group described by the respondents as ‘The Clepington Road Sheltered Housing Complex’. This group of houses has a call system and warden service and alarmed pull cord systems and certain other adaptation within the individual flats. Generally, the group does not include second (top) floor flats.

3. A number of flats at these addresses, but mostly on the top floor, have been sold to sitting tenants.

4. At the applicant’s flat, the call system is in working order. The applicant receives a call each morning from the warden. There are alarmed pull cords, also operational, in the hall and bathroom. There are some further adaptations for the elderly or infirm, although not for wheelchair users. The bathroom door opens outwards. The kitchen and bathroom floors have non-slip flooring. A level access shower suitable for disabled use was installed in about 2004. Doorways have not been widened, and neither handrails nor electric sockets at wheelchair height have been provided. The electricity meter cupboard is placed high up on the wall. The stairs outside the entrance to the flat, leading down to the back door of the building, are steep.

5. The applicant pays, as well as basic rent, a service charge, shown on her tenancy agreement as ‘Sheltered’, in respect of the provisions additional to those provided to her as an ordinary tenant.

Submissions

On the applicant’s behalf, it was submitted that the subjects were not subjects designed for use by the elderly or disabled or persons with special needs, nor had they been properly adapted for such use. The call system and warden service available on weekdays during normal working hours were insufficient to amount to such design or adaptation. This was a standard tenement block some of whose flats were occupied by able bodied younger persons and some of which had been sold under the ‘Right to Buy’ legislation. There was no adjustment for wheelchair use. The applicant had installed the shower. On the facts, the respondents were not entitled to refuse the application.

The respondents’ submission was that this was one of a group of houses which had been designed for persons with special needs and the house was provided with or situated near special facilities for use by the applicant. The listed group of flats in Clepington Road and Caird Terrace was such a group of houses. This was a recognisable group comprising a number of tenement blocks albeit that some of the properties did not comply, only the ground or first floor properties having been designed or adapted for persons with special needs. It was irrelevant whether some properties had been sold. It was not a question of fairness: the Tribunal had no discretion. As far as the position at the applicant’s house was concerned, the provision of the call service on its own was sufficient, but there were also the alarmed pull cord system, the outwards opening bathroom door, the level access shower and the non-slip flooring. Adaptation for wheelchair use was not the only way of meeting the statutory criteria: there were other disabled persons with specific needs in respect of whom adaptations equally entitled the respondents to refuse the application – c.f. Davidson v Dundee City Council. In any event there had been consultations with tenants’ groups and the consensus had been that in the main tenants did not want specific wheelchair adaptations and such adaptation was made only when specifically required.

Tribunal’s Consideration

This legislation has the clear primary purpose of giving secure tenants who have been tenants for long enough the right to buy their homes. It is therefore appropriate to approach this provision which excludes one class of house on a reasonably strict basis. Cases in which section 61(4)(ea) applies so as to exclude the right to buy, in order that particular housing stock is retained in public ownership, may seem hard on the individuals concerned and the Tribunal must look closely to see whether the tests in the provision are met.

The extent of detailed findings which the Tribunal is able to make in this case is limited by the parties’ agreement (which the Tribunal considers was entirely appropriate) to deal with the case on the basis of written submissions and no oral evidence. However, the Tribunal was able to see the position at the applicant’s house, and indeed the applicant acknowledged during that visit that the call system was indeed operational and she receives a call from the warden each morning. As far as wider questions of fact are concerned, the Tribunal notes that the applicant, who did not lodge any written submission beyond that in her application, did not challenge the respondents’ assertions about the so-called sheltered housing complex. The Tribunal felt able to accept the respondents’ assertions of fact at least on a general basis. In relation to sales of other flats, again, the applicant did not specify those to which she referred. The schedule of sold flats did seem to include one or two in the ground or first floors, and the Tribunal does not have evidence to explain that. However, even if it were the case that a small number of properties to which the exception might have applied had been sold to tenants, that would not really assist the applicant, because the Tribunal has to decide this matter simply on the basis of applying the statutory provision and not on the basis of what the respondent has done in other cases.

The provision in the Housing (Scotland) Act 1987 dealing with houses provided in a group for persons with special needs was in a slightly different form. The amended provision inserted by the 2001 Act sets up a test which is more clearly in two parts. Firstly, there has to have been a group of houses which meets the first part of the test. Secondly (if it is Section 61(4)(ea)(i) which is being relied on, as is the case here), the individual houses have to meet the second part of the test.

As far as the ‘group’ part of the test is concerned, this now has to have been ‘designed for persons with special needs’. In the present case, the individual houses were clearly tenement flats not originally so designed, but when attention is directed at the group, as this part of the test requires, it is clear to the Tribunal that this test is satisfied. It is very clear that houses have been grouped together, linked up to a warden and call system and adapted, to some extent at least, for the elderly. It might be questioned whether ‘special needs’ covers the elderly infirm for whom the warden and call system are appropriate. The original Section 61(4)(a) used the expression, “needs of persons of pensionable age or disabled persons”. Does the change to “persons with special needs” take the elderly infirm out of the scope of the provision? The legislation does not provide any definition of “special needs”. We think that the needs of the elderly infirm, being different from the needs of ordinary householders, are “special needs”. It seems to us that the change from “persons of pensionable age or disabled persons” to “persons with special needs” does not take the elderly infirm out of the class of persons referred to. We think that there is a group of houses which has been designed for persons with special needs. The first part of the test is therefore satisfied.

The second part of the test is also, in our view, satisfied in this case. This involves looking to see whether the individual houses have been provided with, or are situated near, special facilities. Under the amended provision it is not essential that the facilities include a warden and call service, but we are in no doubt that if there is such a service that goes at least a substantial distance towards satisfying this part of the test. In this case there is some further adaptation for the needs of the elderly infirm, including the non-slip flooring, the outwards opening bathroom door and the level access shower. The latter appears to have been financed more recently by a grant through a different department, but that does not seem to us to matter so long as it was there at the time of the application: it is a provision of a facility in the house. The applicant points to some problems. No doubt more adaptation might have been done. Standards in relation to such provision, whether in the form of binding regulation or advisory guidelines, are becoming more and more comprehensive. The Tribunal, however, noted in cases under the previous provision, such as Davidson v Dundee City Council relied on by the respondents, that the test does not require the provision of all possible facilities or the elimination of all problems. The question is whether there is sufficient for it to be said that the house is provided with special facilities for the use of its tenant, and we can find nothing in the wording of the amended provision which would justify any change in the approach. In this case it seems to us that the warden service and call system, and the other facilities in the house, are sufficient to satisfy the test.

In these circumstances, we have decided that in the present case the test laid down by Section 61(4)(ea) is satisfied and therefore that the applicant is not entitled to purchase her house. We must therefore refuse this application.