1. This is an application by a secure tenant for a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”) that she has a right to purchase the house of which she is tenant. The respondents are the landlords. They refused her application to them, and resist this application to the Tribunal, on the ground that she does not have the required period of occupation to qualify for the right to purchase. The relevant facts are not in dispute. The Tribunal has decided that the landlords’ contention is in the circumstances of this case correct and that this application must be refused.
2. The applicant is a tenant, and apparently a secure tenant, of the house at 11 Ashburn Road, Milngavie. The respondents are her landlords. She submitted an application to purchase her house on about 3 May 2007. This was met by a Notice of Refusal dated 21 May 2007. The ground of refusal was that she had not been in occupation of qualifying accommodation for at least 5 years. She applied to the Tribunal on about 24 May 2007. The respondents resist her application only on the issue of qualifying occupation, which is accordingly the only issue raised.
3. Section 61(2) of the 1987 Act, as amended by Section 42 of the Housing (Scotland) Act 2001 (“the 2001 Act”), provides as follows:-
“(2) This section applies to every house let under a Scottish secure tenancy where –
(c) immediately prior to the date of service of an application to purchase, the tenant has been for not less than 5 years in occupation of a house (including accommodation provided as mentioned in subsection (11)(n)).”
Section 61(10), again as amended, provides as follows:-
(b) for the purpose of determining the period of occupation –
(iii) there shall be added to the period of occupation of a house by a joint tenant any earlier period during which he was at least 16 years of age and occupied the house as a member of the family of the tenant or of one or more of the joint tenants of the house, or
(iv) the landlord may, if it thinks fit, disregard as not affecting continuity any interruption in occupation which appears to it to result from circumstances outwith the control of the person in question.”
4. The requirement of 5 years’ occupation was introduced by the 2001 Act, which became effective on 30 September 2002. Two years’ occupation had previously been sufficient. Transitional provisions protected the right to purchase of tenants who had the right, i.e. satisfied the previous 2 year requirement, on that date. The applicant does not suggest that she is in that position. The sole issue accordingly is whether the Tribunal can hold that she satisfies the 5 year requirement.
5. The applicant has not been legally represented in this application. The respondents are represented by Mr Kelly, their Acting Legal Manager. Both parties were agreeable for the Tribunal to exercise its power under Rule 26 of the Lands Tribunal for Scotland Rules 2003 to dispose of the case without a hearing, on the basis of parties’ written submissions. The Tribunal agreed that this was appropriate in the circumstances, particularly as there was agreement on what must be regarded as the essential facts. The submissions before the Tribunal included therefore the application and answers, certain adjustments to the pleadings and the final written submissions.
6. Prior to making her application to purchase, the applicant had four periods of occupation of houses provided by relevant landlords, as follows:-
(i) 55/1 Keystone Avenue, Milngavie – January 2000 to August 2001;
(ii) 24 Nithsdale Crescent, Bearsden – August 2001 to September 2001;
(iii) 47 Oak Drive, Lenzie – November 2003 to March 2006;
(iv) 11 Ashburn Road, Milngavie – March 2006 to May 2007.
7. During the gap in said periods of occupation, between September 2001 and November 2003, the applicant was accommodated privately. She evidently experienced a number of difficulties in relation to her occupation at Keystone Avenue and her tenancy at Nithsdale Crescent. She complains about wrong information given to her regarding her housing entitlements.
8. The applicant acknowledged that the gap of over 2 years in her qualifying occupation occurred. She set out an explanation of the circumstances which is not always easy to follow but is along the following lines. She claims to have been advised by the Housing Department in Milngavie that – apparently after giving up, or perhaps never really taking up, the accommodation at Nithsdale Crescent, as her childminder refused to childmind from there – she would have to wait for over a year before she could apply for another Council house. In these circumstances she says that the reason for the big gap was that she believed she had no legal right to apply for a house.
9. Having set out the statutory provisions and the position regarding the applicant’s periods of occupation, the respondents submitted that although Section 61(10)(iv) gave them a discretion to disregard such a lengthy interruption in occupation when they considered the circumstances to have been outwith the control of the tenant there was nothing to indicate that they erred in not exercising that discretion. The discretion had not been operated in a perverse manner.
10. In our opinion, we have no alternative but to refuse this application. We appreciate that in doing so we have not addressed all the rights and wrongs of the applicant’s account of the difficulties which she went through in relation to her housing position. There is, however, in our opinion, no material on the basis of which we have jurisdiction to interfere with the respondents’ decision to refuse her application to purchase.
11. The 1987 Act, as amended, has a scheme of provisions in relation to the occupation requirement which is one of the qualifying conditions of the right to purchase. In this application, it is not in dispute that there was an interruption of more than 2 years in the applicant’s period of occupation, between September 2001 and November 2003. Although she could have qualified on the basis of occupation from May 2002, she was not in any qualifying occupation at that date, SO the whole of that interruption has to be considered. She could only qualify if Section 61(10)(b)(iv) operated in her favour. That section gives the landlord a discretion to disregard an interruption, however long, in occupation “which appears to it to result from circumstances outwith the control of the person in question.” The difficulty for the applicant is that the statute gives that discretion to the landlord, i.e. it is basically left up to the landlord to decide whether to exercise it and it is not for the Tribunal to decide whether the gap resulted from circumstances outwith the applicant’s control.
12. This is a new provision introduced by the 2001 Act. It might be going too far to say that the Tribunal has no jurisdiction at all to consider the landlord’s exercise of this discretion, although we would prefer to have fuller submissions before giving a definite opinion on that matter. The question would not be whether there were circumstances outwith the applicant’s control, but whether the respondents made an error in law in deciding that there were not. The question whether there was error of law in the exercise of a discretion is not straightforward. Questions might arise not just about the actual decision by the respondents but possibly also about their approach to the exercise of the discretion, the procedure they followed, etc. The submissions before us in this case do not explore such questions and the applicant, through no fault of her own as she is not legally represented, has not considered the question of error of law at all. In the Tribunal’s opinion, the circumstances as set out in this case do not give a basis for interfering with the respondents’ decision. The case which the applicant has made simply does not provide us with a basis for examining the material available or constructively available to the respondents when they reached this decision. We of course appreciate that she has explained from her point of view the circumstances in which the gap occurred, and this includes criticism of the conduct of the respondents’ Housing Department or at least their office in Milngavie. We are not in any position to judge on these criticisms, particularly as they are expressed in somewhat vague terms, but what we can say is that there is nothing in the applicant’s case from which we could properly conclude that the respondents erred in law in the exercise of this discretion.
13. Assuming the applicant still has her tenancy, she may presumably be able to look forward to acquiring the right to purchase once she has the necessary 5 years’ occupation, apparently in November 2008. Meantime, however, we regret that we must refuse the present application.
Decision issued: 12 November 2007
Member: J N Wright, QC
Case Ref: LTS/TR/2007/05
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 12 November 2007
Neil M Tainsh – Clerk to the Tribunal