Lands Tribunal for Scotland

OPINION

John Robb and Elizabeth Robb
v
Tayside Joint Police Board

Introduction and Summary

[1] This is an opposed application for a finding of entitlement under Section 61 of the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001, to purchase a dwellinghouse. Mr Robb, now retired, was a serving police constable who, along with Mrs Robb, had rent free accommodation in a police house, but was obliged to pay council tax. The application raises a sharp issue of construction in context of the words, “occupies the house without the obligation to pay rent or rates”, in Paragraph 7(a)(i) of Schedule 2 of the 1987 Act, which is applicable in this case, in order to decide whether the circumstances met that provision and thus excluded Mr Robb’s 2002 tenancy from being a secure tenancy.

[2] Having considered the parties’ competing submissions, the Tribunal has decided that the applicants’ position is to be preferred; Paragraph 7(a)(i) is not applicable in this case; and the application succeeds.

Procedure

[3] The applicant John Lawrie Robb, Police House, Main Street, Bridge of Earn (“the house”), applied to the respondents, Tayside Joint Police Board, on 26 October 2007 to purchase the house on the basis that he and the applicant Elizabeth Wilson Robb were joint tenants who each wished to purchase. The respondents refused that application on 12 November 2007. The applicants applied to the Tribunal on 6 December 2007 for a finding in terms of Section 68(4) of the Housing Act 1987 (“the 1987 Act”) that they had a right to purchase the house under Section 61 of the 1987 Act as amended by the Housing (Scotland) Act 2001 (“the amended Act”). The respondents opposed the application. The application was heard at an oral hearing on 9 June 2008. The applicants were represented by Mr Robb himself and the respondents by Mr Stalker, Advocate. Parties had lodged various productions and intimated certain witnesses, but the hearing proceeded on the basis that there was no dispute on the facts material to the issue as identified at the hearing.

[4] As more fully set out below, the legal issues were not clarified until very shortly before the hearing, when the respondents instructed counsel in response to a letter sent by the Tribunal to both parties indicating a concern that the issues were not very clearly focused. The respondents set out their position by letter dated 5 June 2008, amplified at the hearing on 9 June. The applicants were prepared to continue with the hearing, but the Tribunal considered at the conclusion of the hearing that the applicants should have a fuller opportunity to respond, particularly as they were not legally represented. Accordingly, the respondents were allowed to clarify their position in further written submissions and the applicants were given an opportunity to respond. The Tribunal has decided the case on the basis of the oral submissions at the hearing as explained and supplemented in further written submissions on both sides.

Factual Background

[5] Mr Robb served as a police constable with Tayside Police for some 30 years, at various locations, until his retirement in January 2008. As such, he was entitled under the Police (Scotland) Regulations either to receive a housing allowance or to be provided with free housing. These entitlements were substantially ended by the Police (Scotland) Regulations 2004 but preserved for officers, like Mr Robb, who had been in post since before 1 September 1994. Mr Robb had occupied various police houses. Latterly, and at the time of his application to purchase, he and Mrs Robb occupied the police house in Bridge of Earn, which is attached to the police station there, rent free under a tenancy which commenced in May 2002. There was no written tenancy agreement or record of the terms of the tenancy.

[6] Regulation 66 of the 1976 Regulations entitled a constable in the position of Mr Robb, who was not in receipt of a housing allowance, to be provided with a house or quarters free of rent and rates. Upon the abolition of domestic rates in 1989, constables were required themselves to pay the community charge. After the community charge was replaced by council tax in 1993, police authorities, and in particular the respondents, did not meet the council tax liabilities of constables in the position of Mr Robb. Accordingly, under the May 2002 tenancy, and as at 30 September 2002, Mr Robb occupied the house under a tenancy which was rent free but under which he was obliged to pay council tax which was not reimbursed by the respondents.

[7] The respondents refused Mr Robb’s application to them to purchase the house, along with Mrs Robb, in their letter of 12 November 2007, in the following terms:-

“The current situation is that Tayside Police require to maintain Bridge of Earn as an operational station and given that the house is an integral part of that requirement Tayside Joint Police Board are not in a position to sell the property at this time.”

The Issue

[8], Schedule 1 of the 1987 Act set out various circumstances in which tenancies were not secure tenancies. Notwithstanding the reason indicated in the respondents’ letter of 12 November, the respondents ultimately relied only on Paragraph 7(a)(i) of Schedule 1, which applied if the landlord was a relevant authority and the tenant:-

“(i) is a constable of a police force, within the meaning of the Police (Scotland) Act 1967, who in pursuance of regulations under section 26 of that Act occupies the house without obligation to pay rent or rates;”

The respondents accepted that they were a “local authority landlord” and that the house was let under a tenancy within the meaning of the legislation. This was the tenancy which commenced in May 2002. It was agreed that there was no new tenancy or agreement which could constitute a tenancy after 30 September 2002, the commencement date of the new regime under the 2001 Act. In order to have the right to buy, the applicants required to be tenants under a “Scottish secure tenancy”. The effect of Section 11(1)(e) of the 2001 Act and the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002 was that as the tenancy was not created after 30 September 2002 it was only a Scottish secure tenancy if, as at that date, it was a ‘secure tenancy’ under the 1987 Act. Hence the reference to Schedule 1 of the 1987 Act and in particular paragraph 7(a)(i). Mr Robb was a police constable. The issue was therefore whether the remaining part of that provision was satisfied as at 30 September 2002.

Relevant Statutory Provisions, in summary

[9] Secure tenancies, and the right of secure tenants to buy, were introduced by the Tenants’ Rights Etc (Scotland) Act 1980. Police and fire authority landlords were, however, not originally covered. That was changed by the Housing (Scotland) Act 1986. There were always a number of situations where tenancies which would otherwise qualify were not secure tenancies and the right to buy was excluded. Some further specific exclusions relating to police and fire authorities were introduced by the 1986 Act. The 1987 Act was a consolidation Act. Paragraph 7 of Schedule 2 of the 1987 Act provided as follows:-

“7. A tenancy shall not be a secure tenancy if the landlord is an authority or committee mentioned in-

(a) section 61(2)(a)(viii) and the tenant-

(i) is a constable of a police force, within the meaning of the Police (Scotland) Act 1967, who in pursuance of regulations under section 26 of that Act occupies the house without obligation to pay rent or rates; or

(ii) in a case where head (i) above does not apply, is let the house expressly on a temporary basis pending its being required for the purposes of such a police force; or

(b) section 61(2)(a)(ix) and the tenant-

(i) is a member of a fire brigade, maintained in pursuance of the Fire Services Act 1947, who occupies the house in consequence of a condition in his contract of employment that he live in close proximity to a particular fire station; or

(ii) in a case where head (i) above does not apply, is let the house expressly on a temporary basis pending its being required for the purposes of such a fire brigade.”

[10] The Housing (Scotland) Act 2001 introduced “Scottish secure tenancies” and also amended the right to buy provisions in a number of respects. In relation to tenancies commenced after 30 September 2002, Schedule 1 of the 2001 Act again lists cases of tenancies which are not Scottish secure tenancies. Paragraph 2 of Schedule 1 provides as follows:-

“2. A tenancy is not a Scottish secure tenancy if the landlord is a local authority landlord and the tenant-

(a) is a constable of a police force, within the meaning of the Police (Scotland) Act 1967, who in pursuance of regulations under Section 26 of that Act occupies the house without obligation to pay rent or council tax,

(b) is a member of a fire brigade, … who occupies the house in consequence of a condition in the person’s contract of employment that the person live in close proximity to a particular fire station, or

(c) is let the house expressly on a temporary basis pending its being required for the purposes of such a police force or fire brigade.”

[11] Section 26 of the Police (Scotland) Act 1967 authorised regulations in relation to pay and conditions of police constables. The Police (Scotland) Regulations 1976 provided inter alia:-

“42(1) A constable who is not provided with a house or quarters free of rent and rates shall be paid a rent allowance which shall be either a maximum limit allowance or a flat rate allowance …

(7) In this regulation:

(c) the expression “rates” means any rate, charge, or assessment, the proceeds of which are applicable to public local purposes and which are leviable on land and heritages and includes any rate in respect of water supply payable according to the net annual value of the house or quarters; … ”

66. A constable who is not paid a rent allowance under regulation 42(1) shall be provided with a house or quarters free of rent and rates … ”

[12] Domestic rates were abolished and replaced by the community charge with effect from 1 April 1989, in terms of the Abolition of Domestic Rates (Scotland) Act 1987. Regulations 42 and 66 above were amended by the Police (Scotland) Amendment Regulations 1990, so as to read inter alia as follows:-

“42(1) Subject to the provisions of regulation 42B, a constable who is not provided with a house or quarters free of rent shall be paid a housing allowance which shall be either a standard-rate allowance or a half-rate allowance …

(12) In this regulation-

(c) the expressions “rent allowance” and “rates” have the same meanings as they had in regulation 42 of the principal Regulations as originally enacted …

66. A constable who is not paid a housing allowance under regulation 42(1) or a transitional rent allowance under regulation 42B shall be provided with a house or quarters free of rent … ”

[13] The community charge was abolished and replaced by council tax, in terms of the Local Government Finance Act 1992. No amendments were then made to the relevant parts of regulations 42 or 66.

[14] Regulations 42 and 66 were repealed by regulation 12 of the Police (Scotland) Regulations 1994, subject to certain savings and transitional provisions which applied to Mr Robb, so that he continued to be entitled to either an allowance (now referred to as a “replacement allowance”) or to be provided with a house or quarters free of rent. References in these regulations to rent-free accommodation were all to the provision of accommodation “free of rent”. “Rates” were not mentioned, and not defined, in these regulations.

Authorities referred to

R v Hammersmith and Fulham LBC, ex p M (1997) 30 HLR 10
Bennion, Statutory Interpretation (5th edition) pp 890-1, 1157
Scottish Current Law Statutes 1986, vol. 4 (CMG Himsworth)
Watchman, The Housing (Scotland) Act 1987, p 447
Scottish Office Police Circulars, 12/1987, 3/1992 and 11/1994

Submissions

[15] The application to the Tribunal and the Answers, each as adjusted, mainly covered the question whether, as indicated in the respondents’ refusal of the application to purchase, the respondents had an operational requirement for the house. The applicant did not accept that and alleged that another constable had been advised that he could not occupy the house when the applicant moved out because it was surplus to requirements. The respondents asserted that where police officers occupy police houses rent free under the Police Regulations, or the house was let expressly on a temporary basis pending its being required for the purposes of the police force or authority, the tenancy was not a Scottish secure tenancy. There was reference to Scottish Home and Health Department guidance to the effect that “the tenancy of a police house is not a secure tenancy” but individual police authorities could and should consider whether houses surplus to operational requirements could be sold to officers on the same favourable terms as under the statutory ‘Right to Buy’. The respondents also explained that, in line with other police authorities, they did not pay council tax for police houses tenanted by officers. That would give an additional benefit to individual officers. The respondents did not have either obligation or discretion to provide such an additional benefit. The applicant, as the resident, was the person liable to pay. The respondents also referred to the house and the police office adjoining each other and being integral parts of the same building, whereas the applicants claimed that the house and office were not even as closely aligned as standard semi-detached houses.

[16] In response to letters sent to both parties suggesting a concern that the legal issues were not very clearly focused and that the respondents would require to confirm the particular legal basis for the submission that there was not a secure tenancy, the respondents wrote confirming their reliance on Paragraph 7(a)(i) and 7(a)(ii) of Schedule 2 of the 1987 Act. At the hearing, however, Mr Stalker indicated that the respondents no longer relied on Paragraph 7(a)(ii). He also confirmed that no other argument as to why this had not been a secure tenancy was being advanced. In relation to 7(a)(i), he said that there were four questions: were the respondents a relevant police authority?; was the applicant a constable?; did he occupy in pursuance of regulations under Section 26?; and, did he occupy without obligation to pay “rent or rates”? The 1976 regulations, as amended, were made under the general power in Section 26 of the 1967 Act. No specific agreement was required, because the regulations provided the entitlement to occupy. Mr Robb had had the right, before 1994, to either a rent allowance or the provision of a house free of rent and rates. He had no obligation to pay rent. Nor had he any obligation to pay rates, which had been abolished. A policy of allowing any officer with a police house to exercise the right to buy would put the respondents in difficulties, although certain forces had adopted a policy of selling. The definition in regulation 42(7)(c) expressly applied only to that regulation, in order to establish the qualifying requirements for payment of the rent allowance. There was no warrant for applying this definition to Paragraph 7(a)(i) of Schedule 2 of the 1987 Act, in which the context was different. That would mean that in the event that a constable had to pay anything which would come under that definition, he would suddenly acquire the right to buy. Mr Stalker did accept that the definition in regulation 42 would include council tax. Mr Stalker briefly considered the question whether the ‘or’ in ‘rent or rates’ might be disjunctive, so that an obligation to pay one or the other would be sufficient. That would depend on the context. Any ambiguity should be resolved in the respondents’ favour: it would be anomalous to allow those paying rates to buy houses, but not those not paying rates. Also, the occupation without paying rates would not then be under regulation 66, because that (as amended) gave no power to give constables such a benefit.

[17] At the hearing, Mr Robb relied on the definition of “rates” in regulation 42(7)(c) and stressed that regulation 42 was quite closely associated with regulation 66. It was unlikely that the definition would only apply to one part. The definition under regulation 42 should apply to regulation 66 also. Then, a constable not paying rent but paying council tax would not be occupying under the regulation. The definition would not be satisfied if one or other of rent and rates (or council tax) was being paid by the tenant. Regulation 66 used the word ‘and’ (“free of rent and rates”).

[18] In their further written submissions, the respondents expanded on and slightly reformulated these submissions. It was submitted, under reference to commentaries on the 1986 and 1987 Act provisions by CMG Himsworth and Paul Watchman respectively and also to Scottish Office Circulars, that the intention of Paragraph 7 was to exclude from the right to buy houses which were required, or potentially required, for operational purposes. Paragraph 7(a)(i) covered the first category – houses currently required – by referring to the regulations under which such houses were occupied by constables and were accordingly in operational use. The reason for re-enacting the definition of ‘rates’ in the 1990 regulations related to a provision about calculation of the new ‘standard rate’ housing allowance under a formula which included rates which would have been payable on 31 March 1989, the day before introduction of the community charge. It was therefore purely a historical reference. The amendments showed that housing allowances were not to include reimbursement of the community charge and officers provided with a rent free house would have to pay their own community charge. Similarly, when council tax was introduced, no steps were taken to provide that rent free houses would be freed of the obligation to pay that. When Mr Robb’s tenancy of the house commenced in May 2002, this was under the 1994 regulations, in which there was no reference to either rates or council tax and the provision was of a house “free of rent”.

[19] The respondents’ submissions went on to address the fact that, despite the amendments under the police regulations, Paragraph 7 had not been amended and the reference to rates remained until the 2001 Act. The Tribunal had to interpret Paragraph 7 as at May 2002, in order to determine whether there was a secure tenancy as at 30 September 2002. It was submitted that the Tribunal ought, in the light of the changes made to the regulations made under Section 26, to read the provision as if the words “or rates” were no longer part of it, because these words had been deleted from the regulations to which the provision referred. Five reasons were advanced for preferring this interpretation to the applicants’ position that the words “or rates” continued to have effect and applied to an obligation to pay council tax:-

(i) if the applicants’ construction were correct, there was no tenancy to which the provision could apply: the correct approach was not to ask the separate questions whether the constable occupied in pursuance of the regulations and whether he had an obligation to pay rent or rates, but to take the whole question together. Under the original, pre-1990 provision, an obligation to pay rates would have been inconsistent with occupation in pursuance of the regulations. After the 1990 amendments the correct question could only be asked by reading the provision as if the words “or rates” had been deleted: there were then no regulations under which a constable could occupy without an obligation to pay rates.

(ii) The applicants’ position involved disengaging the words “without obligation to pay rent or rates” from the rest of Paragraph 7. This would cause difficulties. The lack of obligation to pay rent was still in pursuance of the regulations. Paragraph 7 would apply to no-one, because the constable occupying the house would always be the person liable to pay council tax. Both parties sought ‘updating’ constructions, but the respondents’ was to be preferred.

(iii) Under reference to Bennion, at pages 890 to 891 and R v Hammersmith and Fulham LBC, ex p M (1997) 30 HLR 10, per, Lord Woolf MR, Parliament should be presumed to intend a construction which continuously updates the wording of legislation to allow for changes since the Act was framed. The words “or rates” were ‘embedded’ in the time when the Act was drafted, and their deletion from the regulations should be taken into account so as to give effect to the purpose originally envisaged by the wording of the legislation. These words were intended to reflect the terms of the regulation, i.e. the original regulation 66, but once that was amended that purpose no longer applied.

(iv) It was submitted that the respondents’ construction gave effect to the purpose of Paragraph 7, whereas the applicants’ frustrated it because it would leave no provision by which houses in operational use were exempted from the right to buy. Constables would be entitled to buy houses in operational use, but not those merely potentially in operational use (Paragraph 7(a)(ii)).

(v) As at May 2002, an “obligation to pay rates” was distinct from an obligation to pay council tax. “Rates” were then non-domestic rates, and the applicants had no obligation to pay these. Therefore, an obligation to pay “rates” did not include an obligation to pay council tax.

[20] In his further written submission, Mr Robb first drew attention to the extent to which the respondents’ argument had been broadened in the written submissions. He submitted that the concept of an ‘updating’ construction favoured the applicants, as it might have been thought that the local authorities would resume the “rates/council tax burden” when council tax was introduced. The respondents’ references to the purpose of Paragraph 7 were references to Paragraph 7(a)(ii), on which they had indicated they were not relying. Updating principles would also take account of other changes such as the reduction of operational requirements for police housing. The respondents had not indicated what their requirement for the house at Bridge of Earn might be. Further, there was increasing encouragement in society to be owner occupiers, reducing the operational purpose promoted in the commentaries on the legislation. The respondents had referred to regulations under the police legislation, but this case involved housing legislation: the right to buy remained the same before and after the amendments to the police legislation. Payment of council tax was the requirement described in the 2001 Act, which in turn referred to previous legislation referring to rates. Substitution then of “council tax” for “rates” could infer that the legislators in 2001 considered them to be the same thing. The definition in regulation 42(7)(c) clearly included council tax, and it was not uncommon for definitions from one piece of legislation to be used in clarification of a situation arising under otherwise unrelated legislation.

[21] In answer to the specific reasons advanced for preferring the respondents’ position, Mr Robb submitted that the legislators may have intended that the regulations would reflect older legislation and local authorities would resume the burden of rates/council tax. Local authorities omitting to pay rates/council tax benefited financially, laying themselves open to occupiers’ right to buy. The words “or rates” should not be omitted. The court should endeavour to give significance to every word of an enactment. The respondents were relying on the police legislation, not the housing legislation. The argument that Paragraph 7(a)(i) would become meaningless as there would be no provision by which houses in operational use could be exempted from the right to buy was an inaccurate reference to 7(a)(i). The police authorities could seek protection by allowing occupancy under Paragraph 7(a)(ii). The proposition that any reference to “rates” in housing legislation meant business rates would render the provision meaningless.

[22] Both sides referred briefly to expenses.

Tribunal’s Consideration

[23] The problem in this case is how to apply the words, “without obligation to pay rent or rates”, in relation to the tenancy of a dwellinghouse which commenced in 2002, some 13 years after the abolition of domestic rates, where the tenant, although occupying rent-free, was obliged to pay council tax, the modern counterpart of domestic rates. The legislation in question does not provide any definition of “rates”. A further element, heavily relied on by the respondents, is that the provision under consideration does not simply require occupation “without obligation to pay rent or rates” but requires such occupation to be “in pursuance of regulations under section 26 of the Police (Scotland) Act 1967”. The regulations referred to deal with police constables’ pay and conditions, and they have not, since the introduction of the council tax, involved any entitlement to occupy any housing without being obliged to pay council tax. The submissions before us suggest three possibilities: firstly, to ignore the words, “or rates”, so that the provision applies because the tenant has, under the regulations, no obligation to pay rent; secondly, to construe “rates” as meaning non-domestic rates, which have continued in existence, so that the tenant can be said not to have any obligation to pay either rent or rates; or thirdly, to construe “rates” as referring to its modern counterpart, council tax.

[24] The respondents invite us to have regard to the purpose which they identify in the statutory provision. They argue that the intention of Paragraph 7 was to exclude from the right to buy those houses which were required, or potentially required, for operational purposes. Relying on commentaries on the provision, they maintain that Paragraph 7(a)(i) covers houses currently required, and 7(a)(ii) those potentially so required. We do not agree with Mr Robb that this involves bringing 7(a)(ii) back into the argument: the respondents’ suggestion is that both of these provisions have such a purpose. The respondents have made no attempt to prove that this house was required for operational purposes, a matter which Mr Robb made clear all along that he did not accept. We recognise, however, that the respondents’ reliance on purpose is at a more general level of construction of Paragraph 7(a). The argument merits closer examination in order to try to see what can be said about the legislative purpose behind the provision which we have to apply.

[25] In relation to a dwellinghouse, an operational requirement would presumably be a requirement for a resident police officer within such proximity of a police station as to make it difficult, in the particular area, for the authority to provide similarly close accommodation if that accommodation ceased to be available to them. Paragraph 7(a)(i) makes no express reference to operational requirements whether current or future. Nor does regulation 66, the regulation relied on by the respondents. That simply entitles the officer to be provided with “a house or quarters” (our underlining) free of rent. With due respect to the learned commentators on the Act, we are inclined to think that 7(a)(i) primarily addresses a consideration other than operational requirements, viz. the questions whether and when it is appropriate that an officer occupying a house in terms of entitlement under the police regulations should be excluded from secure tenancy and the right to buy. Presumably, the reasoning behind the suggestion that 7(a)(i) has to do with current operational requirements may be that in practice it is such houses that are allocated under regulation 66, although we have not heard any evidence to that effect. If, however, we are prepared to make that assumption, it is still necessary to consider why the requirement, “without obligation to pay rent or rates”, was included in the provision. It seems to us that, even if there was a purpose of excluding houses currently required, that was significantly qualified by the addition of words limiting the exclusion of the right to cases in which the officer was not required to pay rent or rates. The overall purpose of the legislation, to confer a general right to buy on the tenants of public authorities, must also be remembered. The exclusions from the right, of which there are a few, are quite closely defined: they no doubt, like this one, each have a purpose, but there is also a scheme of limiting exclusions to cases where it is genuinely appropriate to remove the right to buy. The right balance has to be found between the purpose of the exclusion and the general purpose of the legislation. In the case of Paragraph 7(a)(i), even if its purpose is to protect houses operationally required, that balance was struck by providing that the exclusion only applies to such houses if the officer occupies free of rent and rates. If, for example, an officer was required under the regulations to pay some rent, perhaps a very modest rent, for a house operationally required, the balance would, under this provision, be tipped against the police authority despite the operational requirement; and similarly with rates. So, even if there is a purpose as suggested by the respondents, the form of the provision clearly shows another consideration, in line with the general purpose of the right to buy provisions. This view of the provision does not involve ‘disengaging’ the words, “without obligation to pay rent or rates”, but rather considering the effect of these words within the provision read as a whole.

[26] It is appropriate at this point to note that use of the word “or” does not mean that the provision would be satisfied if the tenant was free from one of the liabilities but not the other. Little words like “or” can play large tricks. The surrounding wording needs to be looked at to see whether the meaning is disjunctive or conjunctive. Here, looking at the surrounding words, and also the negative formulation – “without obligation to pay rent or rates” – it is reasonably easy to conclude that this actually means that the occupation is free of both rent and rates. At the hearing, the Tribunal asked Mr Stalker whether it could be suggested that freedom from only one of the two elements, rent or rates, would be sufficient. This had clearly not been a submission he had intended to make. The respondents’ further written submissions, which are a clear and careful statement of their position, do not advance such an argument. We consider that they are correct not to do so.

[27] Accordingly, it is clear that while the domestic rating system applied, the exclusion in Paragraph 7(a)(i) would not apply if the tenant was obliged to pay rent but not rates, and it would not apply if the tenant did not have to pay rent but was obliged to pay rates. If, before the abolition of domestic rates, the police regulations had been changed so as to remove the entitlement to occupy free of rent and rates and substitute occupation which was rent free but with the tenant obliged to pay rates, it seems clear that constables in that position would have become secure tenants who could acquire the right to buy. Clearly, it was possible for the regulations to be amended, as has indeed happened. Parliament did not simply leave this matter in the hands of those charged with fixing officers’ pay and conditions and making the regulations, but prescribed this minimum condition of freedom from both rent and rates. To decide otherwise would not simply be to fail to recognise the purpose of the words, “without obligation to pay rent or rates,” it would be to treat them as unwritten.

[28] How then should the words “or rates” be construed in the circumstances which actually occurred, namely abolition of domestic rates, followed for a time by the community charge but eventually replaced by council tax? Various rules of construction, or presumptions, have been referred to expressly or by implication. In referring to the purpose of the provisions, the respondents may be seeking a purposive interpretation. ‘Updating’ construction has been referred to, as also the approach of seeking to give a meaning to every word. Ultimately, we must look at the whole context and arrive at a sensible meaning which does not put an undue strain on any words.

[29] In our opinion, the “rates” referred to, in legislation about dwellinghouses, were domestic rates, and no-one would think that they might refer to non-domestic rates, even after the abolition of domestic rates. So we reject as artificial the approach that Mr Robb occupied the house without obligation to pay rates because he was not obliged to pay non-domestic rates.

[30] That leaves a choice between treating the words as no longer having any meaning and in effect deleted and giving them a current, or ‘up-dated’, meaning as referring to council tax. We prefer the latter. We accept that in ordinary language one would not refer to council tax as rates. But our task is to look at the whole context, including the purpose of the provision, and endeavour if possible to give effect to the whole of the provision. Council tax is clearly the modern equivalent or counterpart of domestic rates. Both were essentially taxes raised on the value of property for the purpose of meeting local authority expenditure. Paragraph 7 limited the exclusion to cases where the constable not only occupied in pursuance of the regulations but did so free of rent and rates, whereas under the regulations as they stood in 2002 such a constable had to pay council tax: the position may appear just the same as if the regulations had been changed so as to require the occupier to pay domestic rates. There is no definition of “rates” in the Housing (Scotland) Act 1987, and we were not referred to any other definition apart from that in the regulations. Would it place undue strain on the words, “or rates”, to read them now as “or council tax”? The definition in regulation 42 does not apply to regulation 66 and therefore cannot be said to have been made applicable to Paragraph 7, but it still seems to us to be of some assistance here because it appears that the only time “rates” has been defined in the context of police housing entitlements the definition, as Mr Stalker agreed, was apt to cover council tax. Accepting that this was in the particular, quite technical context, of calculating allowances, we take it as some sort of indication that it is not a misuse of language to use the word “rates”, in order to give them some meaning, as these days meaning council tax, when the alternative is not to give the words any meaning and to treat them as deleted.

[31] We also note that Paragraph 2(a) of Schedule 1 of the 2001 Act, which provides, in relation to new tenancies, a substantially similar list of excluded cases, did substitute ‘council tax’ for ‘rates’. That schedule is slightly different in form and expression from Paragraph 7 of the 1987 Act, but Paragraph 2(a) is otherwise identical to the old Paragraph 7(a)(i). The provisions appear intended to have the same effect. If the respondents are correct, however, two police constables, each with long enough service to retain the pre-1994 entitlements and each occupying rent-free but being required to pay council tax, might apply to purchase on the same day but be treated differently, just because one took up occupation before 30 September 2002, when the applicable provision used the word “rates”, and the other after that date, when “council tax” has been substituted. That would seem to us to be considerably less satisfactory than the situation where the regulations have changed so that the exclusion can no longer apply, a situation which the legislation appears to have anticipated by adding this requirement of no obligation to pay rent or rates.

[32] We appreciate that there are necessary technical differences between the working of the rating system as applied to dwellinghouses (and indeed to police property) and the council tax system. The latter necessarily distinguishes dwellinghouses and places the obligation to pay the tax to the council more firmly at the door of the residential occupier. However, such technical distinctions would seem to have little part to play in this issue of interpretation of housing legislation, and the respondents did not rely on them. The applicants clearly do have the obligation to pay council tax.

[33] Accordingly, we have reached the view that “rates” in this context should be interpreted as including its modern counterpart or equivalent, council tax, when the alternative is to treat the word as deleted. The respondents are therefore unable to bring this case within the terms of Paragraph 7(a)(i).

[34] We agree with the applicant that the respondents’ argument involves using the police legislation to determine the housing legislation. That would be the result if the housing legislation merely provided for accommodation in pursuance of regulations under the police legislation, but it does not. It adds the phrase, “without obligation to pay rent or rates”, which in our view clearly limit the ambit of the provision.

[35] The respondents argue that this interpretation places them in difficulties in relation to houses which are operationally required. However, there are three other ways in which tenancies can, and could under the 1987 Act, be excluded from the right to buy., viz. Paragraphs 1, 7(a)(ii) and 8 of Schedule 2. Given these other possibilities, it does not seem unreasonable to construe Paragraph 7(a)(i) as confined to the situation which is the modern equivalent of what Parliament clearly envisaged. The current legislation appears clear to the effect, in relation to tenancies commencing after 30 September 2002, that the corresponding provision will not apply if there is an obligation to pay council tax; and if there is such obligation, the house could be let expressly on a temporary basis pending its requirement for operational use. If the entitlement under the police regulations is in line with the statutory exclusion, there is no requirement for any written agreement or lease; but if it is not, the right to buy can only be excluded by a lease expressly covering the matter or under one of the other two excluding provisions. The provisions of the 1987 Act appear to us to have worked the same way.

Decision

[36] For these reasons, we have decided that Paragraph 7(a)(i) does not apply in the applicants’ circumstances and that this application should succeed.

[37] Mr Robb moved for expenses if the applicants succeeded, and we understood Mr Stalker to accept that position. However, the applicants do not appear to have had legal representation, and before making any order in relation to expenses, we shall allow the applicants to make a written application setting out the amount sought and the basis for that. The respondents will have the opportunity to answer. The Tribunal may be able itself to assess a fixed sum for expenses or may require to remit the matter to formal taxation of expenses. We would mention that Mr Stalker moved for certification of the case as suitable for the employment of counsel in view of the complexity and importance of the case. We can accept that the legal arguments were not straightforward and also that there could be some application beyond this particular case, and in the circumstances had this matter arisen we would have granted that motion.