Lands Tribunal for Scotland

OPINION

Janet Warren
v
South Ayrshire Council

1. This is an application for a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987, as amended, that the applicant, who is a tenant of the respondents, has a right to purchase. The respondents resist the application and rely on the designation of the area in which the applicant’s house is situated as a ‘pressured area’ under section 61B, a provision added by the Housing (Scotland) Act 2001. The applicant argues that because her husband was a secure tenant prior to 30 September 2002 and she succeeded to his tenancy (after that date) her right to buy still applies.

2. Having considered the parties’ submissions, the Tribunal has decided that the respondents are correct; the applicant does not presently have the right to buy; and the application must accordingly be refused.

3. There appears to be no dispute about the facts. The applicant’s husband, with whom she lived, was a tenant of the respondents and their predecessors for many years. Following his death, she succeeded to the tenancy in December 2004. ‘Pressured area’ designation, in relation to the Belmont South area of Ayr, in which the applicant’s house is situated, took place on 10 February 2006 and there is no issue about the procedure followed by the respondents in that respect. The applicant applied to the respondents to purchase the house in October 2008. The respondents refused that application. The applicant applied timeously to the Tribunal. The respondents lodged answers to the application. They relied on Section 61B(3) of the Act in response to the applicants’ claim to be entitled because she had succeeded to her husband’s tenancy.

4. Parties each consented to the Tribunal’s disposing of this application without a hearing, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, and the Tribunal decided to follow that procedure. In accordance with our normal practice, we gave each party an opportunity to lodge any further legal submissions.

5. It has been a feature of the statutory scheme of tenants’ rights that the spouse of a tenant can acquire tenants’ rights by succession and can often, in establishing a period of occupation for the purpose of exercising the right to buy, rely on occupation prior to succeeding to the tenancy. The applicant argues that, because she succeeded to a tenancy which commenced long before 2002 her right to buy is not suspended following designation of the area in which her house is situated as a ‘pressured area’. The respondents argue that on a correct interpretation of the Act of 2001 she is.

6. The 2001 Act made a number of alterations to the ‘Right to Buy’ scheme. These included the new provision (inserted into the 1987 Act 1987 as Section 61B) allowing landlords to apply for designation of certain areas as ‘pressured areas’ in which the right to buy is suspended for a period. Importantly for the purposes of deciding this application, the Act of 2001, and also the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002 (S.S.I. 318), contain a number of provisions as to whether tenants relying on rights prior to the operative date of the Act (30 September 2002) are or are not covered by the new provisions. Section 61B(3) of the 1987 Act as amended provides as follows:-

“(3) For so long as an area is designated as a pressured area, section 61(1) does not apply in relation to a house in the area-

(a) let under a tenancy created on or after the date specified in relation to the landlord in an order under section 11(1) of the Housing (Scotland) Act 2001, or

(b) let under a tenancy created before that date where-

(i) the tenant did not, immediately before that date, have a right under section 61(1) to purchase the house, or

(ii) the tenant succeeded to the tenancy on or after that date.”

7. In the opinion of the Tribunal, the effect of that provision, and in particular Section 61B(3)(b)(ii), is that, although the applicant can indeed point to a tenancy which was a secure tenancy before the 2001 Act came into effect, the right to buy conferred by Section 61(1) of the 1987 Act does not apply for so long as the ‘pressured area’ designation is in force, because she succeeded to the tenancy after the Act came into force. This provision appears clear.

8. The Order of 2002 extends slightly the transitional protection of tenants under older tenancies. The Tribunal considered whether the somewhat obscurely worded provisions of this Order might assist the applicant despite the clear provision in Section 61B(3), and invited and received further submissions on that point. The applicant then sought to rely on the Order, but having considered the competing submissions, the Tribunal has reached the view that the Order, as it applied following a subsequent amending Order, does not apply in this case.

9. Paragraph 4(2) of the Order gives transitional relief, by way of modification of a number of provisions, in cases falling under Paragraph 4(1). Reading Paragraph 4(1), and in particular 4(1)(c) along with Paragraph 2 of Schedule 3 to the 2001 Act to which 4(1)(c) refers, the applicant, as the tenant’s spouse whose only or principal home at the time of the tenant’s death was the house, would appear to qualify, as her husband would have done, for the transitional relief. Turning back to Paragraph 4(2), as this was originally promulgated, one finds in Paragraph 4(2)(a) that one of the transitional reliefs was that Section 61B, the provision for ‘pressured areas’, would not apply. However, this position was changed by an amending order also promulgated and brought into effect before the 2001 Act came into force. This was the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Amendment Order 2002 (S.S.I. 415). Paragraph 2(1)(b) of that Order deletes the reference in the original order to Section 61B. In other words, under the provisions which came into force on 30 September 2002, the transitional reliefs, although they did apply to the applicant in her particular situation, did not include relief from the effect of the ‘pressured area’ designation. The Explanatory Note to the amending Order explains that this amendment was required to correct an error in the original Order, which never actually took effect in its original form. Given the clear provision in Section 61B, referred to above, it would indeed appear to have been an error to include relief from ‘pressured area’ designation in the original Order. At all events, this provision, in the form in which it came into force on 30 September 2002, does not assist the applicant, although it would appear that the Order as originally promulgated would have. It should be noted that all these provisions took effect some years before the applicant succeeded to the tenancy.

10. For these reasons, the Tribunal finds that the applicant is covered by the ‘pressured area’ provision, with the result that her right to buy her home is meantime suspended. The position is indeed as she was originally informed when her application to her landlords was refused, and was set out in explanatory information, namely that her right to buy is suspended but will be restored once the pressured area designation ends, which is due to happen on 11 February 2011.

11. We must accordingly refuse this application.