Lands Tribunal for Scotland

OPINION

Margaret Rizza
v
Glasgow Housing Association

[1] Mrs Rizza, tenant of a house at 275 Mosspark Drive, Glasgow, applied to the Tribunal for a finding in terms of section 71(2)(b) of the Housing (Scotland) Act 1987 that the landlords had served an offer to sell which did not conform with the requirements of the Act. Her tenancy had started in May 2007 and it was not disputed that, in the offer, the discount on the purchase price was calculated on a basis which would normally have been correct for such a tenancy. It had been calculated on the “modernised” basis. The question was whether she was entitled to a discount calculated on a “preserved” basis.

[2] Although Mrs Rizza obtained the tenancy in May 2007, she qualified for the right to buy by virtue of her previous occupation of subjects at 51 Gallowhill Road, Glasgow. This was, or had been a warden’s flat forming part of a block of sheltered housing. She had lived there, with her husband, from about 1996. The landlords’ offer calculated the discount on the basis of the provisions of section 62 of the 1987 Act as amended by section 49 of the Housing (Scotland) Act 2001. It was not disputed that the amended provisions applied to all tenancies after 30 September 2002 unless special provisions applied which allowed a purchasing tenant to rely on a “preserved” right. In her application Mrs Rizza had contended that she would have been entitled to discount calculated on a pre-2001 Act basis if the landlords had “exercised their right to recognise this move as being a management transfer”. As discussed below, it became clear that this was based on a misunderstanding. However, in the proceedings before us, matters ranged more widely and we have attempted to assess her claim on the basis of all the information provided.

[3] In the application as adjusted, Mrs Rizza set out, in careful detail, various arguments in support of a claim to be treated as if she had been a tenant of 51 Gallowhill Road and her claim that the transfer could be viewed as a management transfer or a transfer on management grounds. She supported the argument by a well prepared set of appendices including the guide published by the Scottish Executive entitled “The Scottish Government Modernised Right to Buy – Housing (Scotland) Act 2001”. We shall refer to that simply as “the guide”. It formed the main basis of discussion before us. Her productions also included the Glasgow Housing Association Limited “Allocations Policy” and a document entitled “Review of GHA’s Sheltered Housing Service”. We also had productions showing correspondence between parties and material relating to the problems Mrs Rizza and her husband had in relation to the house at Gallowhill Road. It was apparent from a preliminary study of the various productions that Mrs Rizza had not identified the particular provisions of the legislation on which the guide was based. She accepted that the Tribunal would have to determine the matter on the basis of the statutory provisions rather than on the terms of any guidance or statements made by officials or others.

[4] It was clear that before she made the move from Gallowhill Road to Mosspark Drive, she had investigated, in some detail, the issue of “preserved” rights. She had discussed it with officials. She had enlisted the support of her MSP. He had advanced, on her behalf, the argument that the many years she had spent as the spouse of the tenant of a tied house entitled her to a preserved right to buy. It appears that both the MSP and Mrs Rizza thought that this was a matter within the discretion of the landlords.

[5] In response to that argument, the landlords had set out their position very fully in a letter of 14 August 2006. This explained that it was the “Modernised RTB” which attached to new tenancies created after 30 September 2002. There were some exceptions to this relating to tenants affected by clearance programmes or whose tenancies had been repossessed on management grounds. They said that it was clear that her case did not fall within the scope of the exceptions and they stressed that the legislation did not confer any discretion on landlords. The letter went on to say that: “in order to enjoy a Preserved RTB after 30 September 2002, a tenant must have enjoyed the Right to Buy before that date. As Mrs Rizza and her husband did not enjoy such a right in respect of the wardens flat prior to 1 April 2006 due to her husband’s requirement to occupy the house for the better performance of his duties, she had no Right to Buy to preserve”.

[6] At the outset of the debate there was some discussion to clarify this issue. It was the respondents’ position that the applicant’s husband had not had a Right to Buy at the relevant date because he was then occupier of a tied house. The respondents’ policy towards such occupiers had changed in April 2006. But, in any event, they argued that this particular point was not of significance in relation to the present application because Mrs Rizza had not been the tenant.

[7] We refer to the letter 14 August 2006 because it demonstrates that, whatever impressions or understandings Mrs Rizza may have derived from guidance notes or from advice by officials or others, she was well aware of the landlords’ position at the time when she moved house.

[8] At the hearing, Mrs Rizza was unwilling to accept explicitly that her husband had been the tenant of 51 Gallowhill Road. She said she had been unable to find any documentation such as a tenancy agreement. She thought that as a spouse she should be regarded as a tenant along with her husband. However, it was not disputed that the accommodation had been provided as a tied house to go with her husband’s job. The landlords’ approach to tied housing had not changed until April 2006. We are satisfied that the only inference which can reasonably be drawn from this is that the husband, as employee, was the tenant. Although we do not take a strict view of pleadings it may be noted that, prior to the hearing, Mrs Rizza had not contended that she was a tenant in her own right. She had highlighted material bearing on the rights of a “spouse of the tenant”. The letter from her MSP had explicitly stated that as her position. It is not disputed that she had various rights based on her occupancy as spouse of a tenant but there is nothing to persuade us that she was herself a tenant.

[9] For completeness, we should mention that Mrs Rizza did challenge the idea that her husband required to stay in the Gallowhill flat “for better performance of his duties”. We accept that this was a relevant question. The simple assertion that it was a “tied house” would not have been enough to exclude him under the former provisions of Schedule 2 paragraph 1 of the 1987 Act. The limited material before us tended to support the view that his occupation would have been excluded from the status of secure tenancy under these provisions. But, the information available to us was limited. There was no positive attempt by the landlords to establish that the tenancy fell within that Schedule. The essential point, in the present context, is that we are satisfied that it was her husband who was the tenant.

[10] It was agreed that what was described in the guide as the “Introduction of the Scottish Secure Tenancy Order 2002” was The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002, Scottish Statutory Instrument 2002 No. 318. We did not find the provisions of this Order entirely clear to grasp in relation to its application to successive tenancies of different subjects. We are aware that similar difficulties have arisen in relation to other provisions of the Housing legislation but not aware of any dicta bearing on the interpretation of the current Order.

[11] The respondents were content to present their argument by reference to the guide. We noted that, to have the effect described in the guide, the words “in relation to that tenancy” in Article 4 of the Order have to be read as if they went on to say: “and any new tenancy entered into in substitution for that tenancy”. As it was not disputed by the respondents that the material set out in paragraphs 112 to 117 of the guide adequately explained the effect of the Order we have not felt it necessary to decide whether such a meaning was justified either as a matter of construction or by virtue of any other relevant provision. We are satisfied that, on any view of the Order, it gives a tenant no greater rights than are assumed in paragraph 114 of the guide. Mrs Rizza was familiar with the terms of that paragraph and, in the whole circumstances, we are able to proceed by reference to it. However, it is right to add that we did not find the approach taken by the respondents to be an entirely satisfactory one. Our task is to apply the substantive statutory provisions and we would expect landlords to be able to take us to the detail of these provisions rather than to rely on guidance material.

[12] However, there is no doubt that the main effect of the Order is that existing secure tenants continue to have the benefit of the old rights. Tenants of new tenancies including those created as a result of transfers or exchanges are only able to exercise the RTB on the “Modernised” terms and conditions unless they fall under the limited exceptions set out in the Order. The guide explains that tenants will be able to retain the RTB on pre-2001 Act terms and conditions following a transfer to a new tenancy in two sets of circumstances: where the landlord has sought to recover possession of the tenancy under section 14 of the 2001 Act under the “management grounds” set out in Schedule 2 and where the landlord has made a decision to demolish the house and the tenant has simply agreed, without formality, to move to other accommodation. These provisions appear to reflect, with adequate accuracy, the terms of Article 4(3) but it is important to realise that the term “management grounds” is not part of the wording of the Order or of the Act.

[13] For the purposes of section 14 of the Act, Schedule 2 sets out some 15 grounds upon which repossession may be sought. It seems clear that the term “management grounds” has been adopted as a convenient way to distinguish grounds 8 to 15 from grounds 1 to 7. The latter cover situations where the landlord seeks to repossess because of some aspect of the conduct of the tenants, ranging from failure to pay rent to anti-social conduct. These might be described as “conduct grounds”. Repossession on the so-called “management grounds”, in other words, on grounds 8 to 15, is not to be confused with a “management transfer”. This term is described in the “Allocations Policy” at paragraph 6.3. It refers to a transfer which is offered to a tenant or his household in circumstances of harassment. It can be contrasted with repossession in that the person offered such a transfer is free to decline it. That is clear from the express provision that if two suitable offers are refused, it is deemed that a management transfer is no longer required. We can find no statutory provision which preserves pre-2001 Act terms and conditions in such a situation.

[14] In the present case it was not contended that there had been any attempt at repossession. In short, it became clear that the discount shown in the offer to Mrs Rizza was correct. She had a new tenancy. She did not fall under the exemption as she was not herself a secure tenant as at 30 September 2002. Further, even if she had been, the circumstances did not fall with the terms of Article 4 (3) of the Order either as it stood or as described in the guide. It is clear that there was no attempt by the landlord to repossess. The circumstances did not fall within the provisions of Schedule 2. There is nothing in the statutory provisions which gives the landlords any discretion in the matter. Her tenancy is not covered by the provisions of Article 4 of the Order. It is a tenancy under the “modernised” provisions. It follows that we cannot make the finding requested in the present case.

[15] For completeness, we should say something about the wide ranging arguments advanced by Mrs Rizza. They were based essentially on the proposition that any reasonable person would have found that the situation in which Mrs Rizza found herself at 51 Gallowhill Road, created levels of stress which were potentially harmful to health, or at least that the levels of intrusion experienced there were inconsistent with peaceful enjoyment of a dwelling. For the purposes of this case, we can accept both propositions.

[16] We heard that the house was part of a block of sheltered housing. There were 30 “sheltered” flats. The door of the house was immediately outside the only entrance to the flats. Mr Rizza was a warden. Mrs Rizza explained that although her husband’s duties did not involve evening or night work, the position of their door immediately adjacent to the main door of the block meant that many callers sought their assistance at all hours of evening and night. Callers in the evening included occupants of the flats who found themselves unable to cope with the security procedures necessary to obtain entry and relatives or other visitors who could not alert occupants using the buzzers. Emergency services such as police, social workers and doctors might call at their door at any hour of night. Calls from inmates suffering from dementia or other illnesses had caused Mrs Rizza particular difficulty when her children were in their teens. She had been afraid to leave them in the house in the evening because of the risk of disturbance.

[17] Mrs Rizza advanced arguments to the effect that the landlords should have re-housed her in exercise of a duty of care to her or a duty to act fairly and reasonably towards occupiers. She suggested that they should have recognised that a house was not “fit for purpose”. They should have taken positive steps to rehouse her. It was not clear whether she went as far as suggesting that they should have positively repossessed the house, putting her husband out against his will, but she was very clear in her view that living was intolerable for any normal person. She suggested it would have been open to the landlords to repossess the house in exercise of their duty of care.

[18] It is unnecessary for us to express any view whatever on such matters beyond noting that Mrs Rizza was, of course, rehoused and that she appears to have been treated favourably in reliance on provisions which did allow the landlords, when allocating houses, to take account of her particular difficulties. The fundamental point is that the landlords did not in fact attempt to take steps to repossess and the circumstances relied on by Mrs Rizza do not bring her within the scope of the exemption provisions of the Order.

[19] It may be added to avoid misunderstanding that although we have been able to accept Mrs Rizza’s account of her stress for the purposes of this case, cross-examination hinted at certain matters which might require further investigation if any more general type of claim was ever advanced. We express no view of this.

[20] We have studied all the material lodged by Mrs Rizza in support of her application. We have also considered the exemption provisions in detail. We looked, for example, at the provisions of paragraph 15 of Schedule 2. This relates to cases where a landlord wishes to transfer a tenancy from one spouse to another and they no longer wish to live together. Although we heard no submission from either side dealing with this provision, the circumstances described had some points of superficial resemblance to the present case. However, we are satisfied this provision does not apply where there is no change of tenant. In any event, there was no question of the landlords having actually proceeded under that provision. It would not have been enough to say that it might have applied.

[21] We understand that the respondents have expressed some sympathy for the position of the applicant. But we are constrained by the statutory provisions. We are satisfied that nothing in the material presented to us provides any justification for a finding that Mrs Rizza was entitled to discount on the “preserved” basis. The application must be refused.

Decision issued: 25 March 2008

Members: Hon. Lord McGhie

Case Ref: LTS/TR/2007/11


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 March 2008

Douglas Ballantyne – Depute Clerk to the Tribunal