DESCRIPTIVE RUBRIC

Landlord and tenant – Public sector housing – Tenants’ rights – Right to buy – Whether Scottish secure tenancy – police house – tenancy commenced in 2002 – applicant obliged to pay council tax – Whether occupation in pursuance of police regulations “without obligation to pay rent or rates” – Police (Scotland) Regulations 1967, as amended – Housing (Scotland) Act 1987, Schedule 2, Para. 7(a)(i) – Housing (Scotland) Act 2001, S. 11(1)(a) and Schedule 1, para. 2(a)

Robb & Anr v Tayside Police Joint Board
11 August 2008
LTS/TR/2007/12

The male applicant, now retired, had served as a police constable for 30 years and prior to retirement applied to purchase the police house which he occupied rent-free. His tenancy was based on preserved rights in relation to accommodation under police regulations. His current tenancy had commenced in June 2002. He was obliged to pay council tax. The respondents refused his application on the basis that the house was operationally required, a claim not accepted by the applicants. The effect of the 2001 Act was that tenancies commenced before 30 September 2002 must have been ‘secure tenancies’ under the 1987 Act in order to be Scottish secure tenancies with the right to buy. The respondents relied on the exclusion under Para. 7(a)(i) of Schedule 2 of the 1987 Act where the house was occupied by a constable in pursuance of police regulations “without obligation to pay rent or rates”. Until the abolition of domestic rates in 1989, the regulations had provided for accommodation free of rent and rates; upon the introduction of the community charge, that was reduced to occupation free of rent; and upon the introduction of council tax, constables occupying such accommodation were required to pay council tax. Schedule 2 of the 1987 Act had not been amended to reflect these changes. The corresponding exclusion under para. 2 of Schedule 1 of the 2001 Act applied where the constable occupied in pursuance of the regulations “without obligation to pay rent or council tax.”

Held, allowing the application, the application raised a sharp issue of construction in context, in relation to a tenancy commenced before 30 September 2002. Neither Para. 7(a)(i) nor the regulation made any reference to operational requirements. The Tribunal doubted the respondents’ submission that the purpose of Para 7(a)(i) was to protect houses currently operationally required, but even if that was so, the provision did not simply depend on the current provision under the police regulation: the description, “without obligation to pay rent or rates”, had also to be satisfied. Parliament had struck the balance between the purpose of the provision and the general purpose of the legislation by requiring freedom from both rent and rates for this exclusion. Had the regulation been changed so as to remove the freedom from paying rates while the domestic rating system still existed, the exclusion would not have been satisfied. The Tribunal could not accept that the there was no obligation to pay “rates” because non-domestic rates continued. The question was whether, in relation to a 2002 tenancy, the words “or rates” were to be disregarded so as to bring the provision into line with the regulation, or whether they were to be construed as “or council tax”. The Tribunal preferred the latter. The definition of “rates” which had appeared in the regulations would have included council tax. The 2001 Act provision required freedom from council tax, so that on the respondents’ construction constables applying to purchase on the same day might be treated differently depending on whether their tenancies had commenced before or after 30 September 2002. Construing “rates” as (now) “council tax” did not put any undue strain on the language of the provision. There were other exclusions which might have been used, although express lease provision might be required, e.g. Para 7(a)(ii).

Authorities referred to:-

R v Hammersmith and Fulham LBC, ex p M (1997) 30 HLR 10
Bennion, Statutory Interpretation (5th ed’n), 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


See full decision:  LTS/TR/2007/12