DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants rights – Right to purchase – Renovated tenement buildings with ground and first floor flats described as ‘sheltered housing complex’ – Call system, day-time warden facilities and some other adaptation – Whether flat one of a group designed for persons with special needs and provided with or situated near special facilities – Housing (Scotland) Act 1987 (as amended by Housing (Scotland) Act 2001), Section 61(4)(ea)(i)

Halliburton v Dundee City Council
1 February 2007
LTS/TR/2006/08

The Applicant was an elderly secure tenant of a ground flat in tenement buildings some 60 of which, on the ground and first floors, were described as a ‘sheltered housing complex’ and had facilities for the elderly or infirm (but not wheelchair facilities unless these were particularly required). The applicants’ flat had a call system in working order and in use, alarmed pull cords and some other adaptations such as non-slip floors. A number of flats, mostly on the second floors, had been sold to sitting tenants. It was submitted on the applicant’s behalf that the subjects were not designed for use by the elderly or disabled with special needs nor properly adapted for such use. The call system and warden service on weekdays only were insufficient and there was no adjustment for wheelchair use. The respondents argued that the group of flats was a recognizable group of houses designed for persons with special needs. Provision of the call system at the applicant’s house was itself sufficient but there were also other facilities. Adaptation for wheelchair use was not the only way of meeting the statutory criteria. It was irrelevant whether some of the properties had been sold.

Held the right to buy was excluded by Section 61(4)(ea)(i). Because of the unfortunate effect of this provision for the individual tenant who would otherwise have the right, the Tribunal must look closely to see whether it was met. This case was (by agreement) disposed of on written submissions, but the Tribunal had had been able to see the applicant’s house. The applicants did not challenge the respondents’ assertions (with documentary evidence) about the ‘sheltered housing complex’. The amended provision was more clearly in two parts. It was clear that the first part, which was mainly directed at the group of houses, was satisfied. The needs of the elderly infirm, being different from those of ordinary householders, were ‘special needs’. The second part was also satisfied. Although it was no longer essential for facilities to include a warden and call service, these went at least a substantial distance towards satisfying the provision and there had been some further adaptation. The test did not require the provision of all possible facilities or the elimination of all problems. The question was whether there was sufficient to enable it to be said that the houses had been provided with special facilities for use by the tenants. The evidence about sales to tenants was not clear, but even if a small number of the properties to which the exception applied had been sold, the statutory provision might still be satisfied.

Case referred to:-

Davidson v Dundee City Council, 4.7.2001, LTS/TR/2001/3

 

(Note: this case was decided on limited written submissions and before Connelly v South Lanarkshire Council, where there was an oral hearing with submissions by counsel on both sides on the interpretation and application of Section 61(4)(ea) resulting in a slightly different approach by the Tribunal.)


See full decision:  LTS/TR/2006/8