Lands Tribunal for Scotland

OPINION

Peter Carey
v
Glasgow Housing Association

Introduction and Summary

[1] In this application for a finding in terms of Section 71(2)(b) of the Housing (Scotland) Act 1987 (“the 1987 Act”), as amended, the applicant complains that in an Offer to Sell under the ‘Right to Buy’ provisions the respondents have not offered the correct statutory discount on the price. He claims to be entitled to the discount as originally provided under section 62 of the 1987 Act (“the preserved right to buy”), whereas the Offer reflected the less favourable provisions of Section 62 as amended by Section 49 of the Housing (Scotland) Act 2001 (“the modernised right to buy”). Central to the issue is the fact that whereas the applicant’s tenancy of the house which he applied to buy commenced in July 2003, i.e. after the commencement date of the 2001 Act (30 September 2002), he was, prior to that commencement date and up to July 2003, a secure tenant (in fact of the respondents’ predecessors, Glasgow City Council, whose housing stock was transferred to the respondents on 7 March 2003) of another house.

[2] By agreement of the parties, and in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, the application has been disposed of on written submissions. The applicant in fact advanced a number of arguments in support of his position. Without hearing evidence, the Tribunal could not make findings of fact on some of these arguments, but considers, for reasons set out below, that it does not require to do so because the facts material to the decision in this application are not in dispute. The Tribunal had in correspondence drawn attention to the particular applicable statutory provisions and suggested that the applicant would be well advised to obtain advice from a solicitor or other skilled representative.

[3] In short, the Tribunal has refused the application. In our opinion, on a proper application of Section 62 of the 1987 Act, as amended by the 2001 Act, and of the provisions of the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002/318, (“the 2002 Order”) (as itself amended by the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Amendment Order 2002/415), this application cannot succeed. Under our jurisdiction as relating to this issue, the Tribunal, like the landlord, has to apply the legislation, under which the applicant’s previous discount right is not preserved. We have no discretion which would enable us to take account of the matters complained of by the applicant.

The Applicant’s Tenancies

[4] There is no dispute that the applicant had a secure tenancy of the house at flat 2/2, 370 Dyke Road, Glasgow, an upper floor flat, from 28 December 1987. He thus became entitled to purchase. In November 2001 he was awarded a medical ‘A’ priority, enabling him to apply to his then landlords Glasgow City Council to be rehoused in ground floor accommodation. He was offered the tenancy of other subjects, and then in July 2003, after the respondents had taken over the Council’s housing stock, he was offered, and accepted, the tenancy of the house at 17 Tabard Place. That was a Scottish secure tenancy and it is, again, not in dispute that the applicant is entitled to purchase. He has exercised that right, resulting in the respondents’ Offer to Sell. The respondents are offering the discount calculated under the provisions of the 2001 Act, fixed at the maximum under those provisions of £15,000.

The Applicant’s Case

[5] In summary, the applicant complains about the procedure and lack of advice given to him when he signed the tenancy agreement in July 2003; suggests that his termination of the former tenancy and acceptance of the new tenancy was not voluntary and that he may be being discriminated against by reason of his disability; and also raises a number of other complaints about the respondents’ conduct. He claims that he was not given any advice, help or support, and given a very short time in which to accept or refuse the new tenancy. There was no timescale to seek legal advice. He referred to the proposed legislation in 2010 with regard to information to be given. He had not signed anything to say that he was giving up his previous right to buy discount. He makes a number of points about an appeal hearing in December 2003, in relation to a bill said to have been issued erroneously to him in relation to damage to the flat at 370 Dyke Road; and also about the respondents’ continued operation of a bank account in the name of Knights Housing Association after the de-registering of that organisation. He also referred to “Section 14 Act” in relation to the landlords’ discretion in the case of interruption of tenancies outwith the control of the person in question and suggests that moving house through a medical condition would fall within that category, and also to “Section 34”, on giving early warning to tenants of any plans for changes such as capping the Right to Buy. He claims that he was deliberately held back from being rehoused to a suitable house, previous offers having not been suitable to his medical condition.

[6] The respondents replied to some of the applicant’s wider complaints but primarily, particularly in their final submissions, relied on the directly applicable statutory provisions to which we refer in more detail below. In relation to advice or information at the time of signing the new tenancy agreement, the respondents referred to a tenants’ handbook which would have been issued at the time. This, they said, explained the position about the Scottish secure tenancy and the effect on the right to buy. Having raised in their original answers the claim that the applicant in fact took an active interest in social housing matters and had acted as chairman of a neighbourhood housing forum at which a presentation on the Scottish secure tenancy agreement had been given, the respondents produced minutes of two meetings on 21 and 28 August 2001, the first of these apparently confirming that the applicant had chaired a meeting at which the forum had been advised that the Right to Buy would be protected for tenants in their current house only and some concern had been expressed about that. They were, however, not prepared to produce the minute of the appeal committee hearing in December 2003 as requested by the applicant, as they considered this matter irrelevant.

Authority referred to:-

Rizza v Glasgow Housing Association 2008 SLT (Lands Tr) 13

Tribunal’s Consideration

[7] The Tribunal’s jurisdiction under Section 71(1)(d) of the 1987 Act is limited to considering whether the offer which the respondents have served on the applicant conformed with the requirements in Section 63(2) of the Act. The requirement with which this application is concerned is that the offer should contain “the discount calculated under section 62(3)”. We therefore can only apply Section 62(3) of the 1987 Act, subject to the amendments made by the 2001 Act but having regard also to certain “transitional” provisions which in some cases, but only in some cases, preserved the entitlement to discount provided by the original Section 62(3). As the Tribunal pointed out in Rizza v Glasgow Housing Association, another case involving the discount following the coming into force of the 2001 Act, there is nothing in the legislation which gives us any discretion to depart from these provisions. In particular, although we can understand the suggestion that where a tenancy has been given up, and a new tenancy accepted, for essential medical reasons, this may be said to be “outwith the control” of the tenant, there is no provision giving us any discretion to depart from the statutory provisions for such a reason.

[8] Section 62 of the 1987 Act, as amended by Section 49 of the 2001 Act, provides:-

“62. (1) Subject to subsection (6A), the price at which a tenant shall be entitled to purchase a house under this Part shall be fixed as at the date of service of the application to purchase by subtracting a discount from the market value of the house.

(3) Subject to subsection (5), the discount for the purposes of subsection (1) shall be-

(a) 20 per cent of the market value of the house;

together with

(b) an additional one per cent of the market value for every year beyond 5 of occupation by the appropriate person , preceding the date of service of the application to purchase, of a house … or of a succession of houses provided by any persons mentioned in Section 61(11) up to a maximum discount of 35 per cent or £15,000, whichever is less.”

Subsections 5 (as amended) and 6(A) have no effect in the circumstances of this case.

[9] The discount in the respondents’ Offer to Sell was £15,000. The application to purchase was served after the commencement date of the 2001 Act. This application can therefore only succeed if there is some form of transitional or saving provision covering this application to purchase.

[10] There are transitional provisions and savings which can apply to preserve the rights, including the rights to discount, of applicants who were tenants who had the right to purchase prior to the commencement date, 30 September 2002. The applicant was a tenant (of the flat at 370 Dyke Road), and it is accepted that he had a right to purchase, immediately before that date. It is therefore necessary to consider these provisions, which are unfortunately not very clearly expressed.

[11] These provisions are set out in Article 4 of the 2002 Order, which provides:-

“4. (1) Where, immediately before the conversion date, a tenant had a right to purchase under Section 61 of the 1987 Act, the provisions of the 1987 Act and the 2001 Act shall, after the conversion date and until the earliest of-

(a) the termination of the tenancy (within the meaning of paragraph (3) below);

apply in relation to that tenancy subject to the modifications mentioned in paragraph (2) below.

(2) The modifications mentioned in paragraph (1) above are that-

(c) the discount in relation to the tenant’s right to purchase should be as provided for in Section 62(3) of the 1987 Act as that provision applied immediately before the conversion date;

(3) For the purposes of this article, a tenancy is terminated if it is brought to an end under any of the circumstances listed in section 12(1) of the 2001 Act other than circumstances where-

(a) an order for recovery of possession has been made under Section 16(2) of the 2001 Act and the ground on which proceedings for recovery of possession have been raised falls within grounds 9 to 15 of Schedule 2 to the 2001 Act; or

(b) the tenancy is terminated by written agreement between the landlord and the tenant and-

(i) the landlord has made a decision to demolish the house; and

(ii) as a result of that decision, the landlord has made other accommodation available to the tenant.”

[12] Section 12(1) of the 2001 Act provides:-

“Despite anything in the tenancy agreement, a Scottish secure tenancy may not be brought to an end except-

(a) by an order for recovery of possession under section 16(2),

(b) by operation of section 18(2),

(c) by operation of section 22,

(d) by operation of section 35,

(e) by written agreement between the landlord and the tenant, or

(f) by 4 weeks’ notice given by the tenant to the landlord.”

[13] The effect of these provisions is basically that the previous discount entitlement is preserved until the termination of the tenancy, so that the applicant would still have been entitled to that discount if he had applied to purchase the flat at 370 Dyke Road after 30 September 2002, but the right was not generally preserved in relation to new tenancies. The applicant’s tenancy at 370 Dyke Road was terminated in July 2003, when his present tenancy commenced. The termination could only have been in one of the ways set out in Section 12(1) – in this case, apparently, (f). Unless it was terminated in one of the situations set out in Article 4(3)(a) and (b), the effect of Article 4(1) is that the savings, in particular the saving of the discount right in Article 4(2)(c), do not apply, i.e. the tenant no longer has the preserved right to buy (although he could rely on the previous tenancy in order to establish the necessary continuity, if he required to do so to have the right to buy).

[14] There is no suggestion that either Article 4(3)(a) or Article 4(3)(b) apply in this case.

[15] In these circumstances, there is no provision which would enable the applicant to retain the preserved right to buy in relation to his tenancy at 17 Tabard Place. The Tribunal has no power to offer or award the applicant a discount in excess of the maximum under the modernised right to buy.

[16] As far as the suggestion of disability discrimination is concerned, whether or not the applicant may have any form of remedy under that head, no basis on which we could exercise jurisdiction over it has been provided. The other matters raised are also not matters of which we can take any account. With due respect to the applicant, one or two of these matters appear completely irrelevant to the discount problem. So far as the suggestion that he was held back from being offered a suitable new tenancy, presumably until after 30 September 2002, is concerned, we have no power to adjudicate on that. As far as the procedure at the time when he terminated the old tenancy and accepted the new one is concerned, again, we can express no view on the applicant’s allegations, but would just point out that there is in any event no indication that his decision to terminate the previous tenancy would have been any different. Reference to a Bill currently before the Parliament also does not assist. The applicant may wish to seek appropriate advice on these various points.

[17] We must dismiss this application. If any issue as to expenses arises, we can consider that also on the basis of written submissions in accordance with our normal practice.