OPINION

Margaret McIntosh v Castle Rock Edinvar Housing Association Limited

Introduction and Summary

[1] This is an application for a finding of entitlement to buy under Section 61 of the Housing (Scotland) Act 1987, as amended. The applicant was employed by the respondents as warden of a sheltered housing scheme from 1987 to 2011 and occupied a warden’s house. She claimed to have a continuing fair rent regulated tenancy. The respondents refused her application to buy on the grounds that they are a charity and as such excluded from the ‘Right to Buy’ provisions. The applicant’s position was that the landlord’s charitable status only impacted on tenancies which started on or after 30 September 2002, when the Housing (Scotland) Act 2001 came into force, and she had the “old” (preserved) right to buy. The respondents also maintained in their Answers that, although the applicant now has a Scottish Secure Tenancy, she previously did not have a secure tenancy because she was required as a condition of her 1987 employment contract to occupy the property for the purposes of her employment.

[2] In summary, we have decided:-

(i) the applicant’s tenancy was a tenancy to which Section 61(1) of the Act of 1987 could apply;

(ii) however, this application must be refused because the conditions for statutory exemption of the respondents as her landlords under Section 61(4)(e), both before and after amendment of that provision by the 2001 Act (or Section 1(11)(g) of the Tenants’ Rights, etc. (Scotland) Act 1980), are applicable and the applicant has therefore at no time had the ‘right to buy’ under Section 61(1).

Procedure

[3] The applicant submitted an application to buy the house at 4 Hyndford’s Close, 34 High Street, Edinburgh on 26 February 2013, along with her husband who is apparently not himself a tenant. The respondents intimated refusal of her application on 15 March 2013 on the grounds that, under Section 61(4)(e) of the Housing (Scotland) Act 1987, the right to buy did not apply where the landlord was a charity and Castle Rock Edinvar Housing Association was a registered Scottish charity. The applicant applied to the Tribunal under Section 68(4) of the Act of 1987 for a finding that she was a tenant entitled under Section 61(1) to buy.

[4] The application to the Tribunal was heard at an oral hearing on 19 September 2013. The applicant was present and represented, with the Tribunal’s consent, by her husband, Alistair McIntosh. The respondents were represented by Mr Bauld, Solicitor, of TC Young, Solicitors, Edinburgh. Evidence was given on behalf of the respondents by Sandy Welsh, their Head of Housing Services. The applicant also gave evidence. Both sides also lodged documentary evidence. In the course of final submissions by Mr McIntosh on behalf of the applicant, we offered him the opportunity of time for further submissions, partly because two of the respondents’’ productions, in the form of correspondence from the Housing Corporation, had been lodged very late and partly because Mr McIntosh had not prepared any submission in relation to the respondents’ case under Section 61(4)(e) of the 1987 Act as it stood before the 2001 Act, but the offer was declined.

Applicants’ Tenancy

[5] There was a slightly confusing position about the applicant’s tenancy. In their Answers to the application, the respondents indicated that the applicant had not initially been liable to pay any rent, apparently casting doubt on her position as a tenant. This position was not, however, maintained and the Tribunal is in any event entirely satisfied that the applicant has had a tenancy since the outset of her employment by the respondents in 1987. As this commenced before 2 January 1989, it could from the outset have been a secure tenancy with the right to buy even although the landlords were a housing association. It was suggested in the Answers that the applicant was required as a condition of her employment to occupy the property for the purposes of her employment. The onus would be on the respondents to establish that that particular exclusion from secure tenancy status applied, but very little evidence on that matter was given at the hearing. Mr Bauld, while referring to it in his final submissions as an alternative position, did not elaborate on it, preferring to base his submissions, really in the end entirely, on the position of the respondents as a charity. The Tribunal simply did not have sufficient material on which to find, in relation to this matter, whether or not the applicant’s tenancy was a secure tenancy. The applicant must in our view be regarded for the purposes of this application as a tenant with the requisite status to entitle her to the right to buy if the right is not excluded by the landlord’s status.

Landlord’s Charitable Status: Law

[6] Section 61(4)(e) of the Housing (Scotland) Act 1987, provided that Section 61 did not apply where, by virtue of Section 49(2) of the Charities Act 1960 a landlord which was a registered housing association was not one to which Part II of that Act applied (and was therefore not a charity excluded by section 61(4)(d)) but-

“(i) the landlord has, in respect of all periods from 14 November 1985 or from the date of first being registered by the Housing Corporation (whichever is the later) claimed and been granted (whether or not retrospectively) under section 360(1) of the Income and Corporation Taxes Act 1970 (special exemptions for charities), exemption from tax; and

“(ii) where such exemption has not been claimed and granted in respect of all periods from the said date of registration, the rules of the landlord, registered under the Industrial and Provident Societies Act 1965 and in force at that date, were such as would have admitted of such exemption had it been claimed as at that date.”

That provision consolidated and re-enacted Section 1(11)(g) of the Tenants’ Rights, etc. (Scotland) Act 1980, as that provision had been amended by Section 12 and Schedule 1, Para 1(f)(ii) of the Housing (Scotland) Act 1986. Depending on the precise commencement date of the applicant’s tenancy, that earlier provision, in the same terms, may have applied when the tenancy commenced.

[7] Section 61(4)(e) of the Act of 1987, as substituted by the Housing (Scotland) Act 2001, now provides that Section 61 does not apply:-

“where a registered social landlord is registered as such by virtue of section 57(2) of the Housing (Scotland) Act 2001 and was, on the date on which that Act received Royal Assent, a recognised body within the meaning of section 1(7) (Scottish charities) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.”

Landlord’s Charitable Status: Evidence

[8] There was very little oral evidence relating to the respondents’ charitable status. Mr Welsh had been involved with the respondents since 1999, when they were Castle Rock Housing Association, which had then been merged with Edinvar and others in 2005. He was not able to explain the terms of that merger. He did not speak to any of the documentation lodged by the respondents in relation to charitable status, but merely said that when he joined, they were recognised as a charity. They had been formed in 1968 out of two previous housing associations. No tenant had ever exercised a right to buy, the applicant being, he said, the first to have formally applied. Mr Bauld believed that Castle Rock was a charity because it was set up to provide for persons in housing need and of necessitous circumstances. He said that he knew that it had been registered as a charity “since right back”.

[9] In her evidence, the applicant said that nobody had told her that the respondents were a charity until a meeting in 1992 in connection with an issue (which apparently recurred from time to time during her employment) about rent, which the respondents had apparently offered to cease requiring her to pay. She agreed that this meeting had really arisen in the context of the introduction of Council Tax. There had also been a meeting of staff in 2002, to explain the effect of the 2001 Act. Reference to the Right to Buy at that meeting had, she said, brought to her attention that she had that right. She agreed that a variety of matters, not just related to staff occupying Castle Rock homes, had been discussed. She said that she had no understanding how charities were regulated.

[10] The documentary evidence lodged by the respondents in relation to this issue included:-

(i) Letter by Inland Revenue to Castle Rock Housing Association Limited, dated 27 October 1992, indicating the association’s “Scottish Charity Number”, SCO08342, and advising that that number showed that it had been recognised by the Inland Revenue as a charity for tax purposes.

(ii) Letter by Inland Revenue, dated 20 January 2005, confirming that Castle Rock Housing Association Limited continued to be recognised by the revenue as a charity and was entitled under Section 1(7) of the Law Reform (Miscellaneous Provisions) Act 1990 to describe itself as a Scottish charity. This letter refers to an earlier ‘Charity Recognition Letter’ as still being relevant.

(iii) Extract from the Scottish Charity Register, in relation to Castle Rock Edinvar Housing Association Ltd, SCO06035, setting out certain details, including “Registered charity from 20-12-1940”.

(iv) Search of Scottish Housing Regulator ‘Find an RSL’, in relation to Castle Rock Edinvar Housing Association Limited, referred to it as having been registered on 10 November 1975.

(v) Letter from The Housing Corporation, Edinburgh, to Castle Rock Housing Association Limited, dated 10 April 1987, advising that that body was satisfied that the association was exempt from the ‘right to purchase’ provisions of the Housing (Scotland) Act 1986, by virtue of having had charitable status as at its first date of registration with the Corporation and by it having enjoyed continuous tax exemption since that time or from 14 November 1985, whichever was the later, and that an entry had been made to that effect in the register of housing associations maintained under the Housing Associations Act 1985, but that in the event of advice from Inland Revenue that exemption under Section 360(1) of the Income and Corporation Taxes Act 1979 was refused, this entry would require to be cancelled.

Parties’ Submissions

[11] The respondents’ position was that Castle Rock Housing Association which subsequently transferred its engagements to Castle Rock Edinvar Housing Association has been a charity at all times during the relevant periods, under Section 61(4)(e) of the Act of 1987 as originally enacted and under that provision as amended by the Act of 2001. Mr Bauld elaborated slightly in his oral submission on the position whereby housing associations had been brought into the ‘right to buy’ provisions with effect from 1987 but there had always been an exemption for charitable housing associations. Section 94(2) of the Charities Act 1960 did not apply in Scotland. The Housing Corporation documentation, along with the other documentation narrated above, confirmed the position. The respondents were exempt from the Right to Buy in its entirety.

[12] The applicant’s position was that her tenancy which commenced on 6 July 1987 was recognised under Section 61(1) of the Act of 1987, and her landlord was recognised under Section 61(2), as qualifying her for the right to buy. Section 61(4)(e) applied to tenancies started on or after 30 September 2002. Tenancies like hers, which had the “old right to buy”, could not be altered or varied in this respect. In oral submission, Mr McIntosh said that he had not prepared anything about charitable status because he understood that the respondents’ only claim for this exemption arose out of the amendment made by the 2001 Act. Charitable status only came after the 1987 Act. He believed that the respondents were not a charity when this tenancy started. If the charitable status was gained in 1990, it could not be retrospective. They would need to have had the charitable status throughout. In response to the question why the respondents might not have had the exemption under Section 61(4)(e) as originally enacted, Mr McIntosh said that he believed the respondents to be a charity in 1992 but the tenancy had started in 1987. Therefore, he said, the applicant had the right to buy.

Tribunal’s Consideration

[13] As we have indicated, we have not considered it necessary to explore further whether the respondents have brought this case within the particular exclusion from secure tenancy status arising out of the applicant’s employment position. As previous cases show, this particular exclusion is by no means straightforward. The 1987 contract of employment does tend in that direction, but there is no clear indication of the position at other dates which might be relevant, such as September 2002. We cannot accept that the applicant fails for that reason.

[14] Accordingly, the respondents can only resist this application if the provisions related to charitable status apply so as to defeat the applicant’s claim, the applicant’s tenancy having commenced in 1987. This appears to be the first application of this kind in which that has been a material issue. In Fotheringham v Hillcrest Housing Association Limited, the respondents advanced this argument but in that case the applicants’ tenancy had commenced in 1990 and was accordingly caught by Section 43 of the Housing (Scotland) Act 1988. That provision effectively took housing association tenancies entered into after 2 January 1989 out of the Right to Buy provisions by creating the different status for them of ‘assured tenancies’, until the 2001 Act introduced ‘Scottish secure tenancies’ which included tenancies with registered social landlords. The Tribunal in that case did not feel that it had sufficient material on which to decide the issue of charitable exemption.

[15] The applicants’ tenancy commenced in 1987 and could have been a secure tenancy under the 1987 Act (or perhaps the 1980 Act as it stood when that tenancy commenced). Her argument is that Castle Rock did not receive charitable status until the Law Reform (Miscellaneous Provisions) Act 1990 conferred specific ‘Scottish charity’ status, and, as we understand the argument, it was therefore only the amendments made by the 2001 Act which gave the respondents the charitable exemption from the Right to Buy. Article 4 of the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002 provides (in short) that where, immediately before the commencement date of the Act of 2001 (30 September 2002), a tenant had a right to purchase under Section 61 of the 1987 Act, the provisions of the 2001 Act were modified. The effect was to preserve the right to buy (“the preserved right to buy”) until one of certain events such as termination of the tenancy. The argument therefore is that, although excluded under the new provisions of the 2001 Act (the “modernised right to buy”), the applicant’s tenancy retained the “preserved right”.

[16] That argument, however, ignores Section 61(4)(e) of the 1987 Act as it stood before amendment by the 2001 Act. (Again, this was perhaps the identical relevant provision of the 1980 Act, as amended by the 1986 Act, in force when the applicant’s tenancy was entered into). Housing association tenancies entered into before 2 January 1989 were for a period, as a result of the Housing (Scotland) Act 1986, eligible for the Right to Buy, but this was subject to several exceptions. These included Section 61(4)(e). As indicated above, this provision refers back to section 61(4)(d), which also related to charities, but the respondents no longer suggest that they are exempt under that sub-section. Section 61(4)(e) sets out the test for exemption of Scottish charities before the 1990 Act introduced specific Scottish charity status. Put shortly, charities in Scotland could at that time achieve exemption from tax, and this provision in effect makes the test, in the case of registered housing associations, for such exemption rest on their satisfying (or being capable of satisfying – Section 61(4)(e)(ii)) the Revenue of their entitlement to charitable exemption, from not later than 14 November 1985 or, if later, the date of their registration as a housing association of that condition. What is important in this case is that the 2001 Act did not remove the charitable exemption as it applied to the few older tenancies for which it still had a material effect. If the exemption provisions in force before the 2001 Act were satisfied, there could be no right to buy which could be preserved.

[17] Accordingly, the respondents can successfully resist this application if they establish that they did indeed fall within the original Section 61(4)(e) (or the identical terms of the 1980 Act as amended by the 1986 Act). We understood the respondents to accept that they required to satisfy the test from the outset of the applicant’s tenancy. As the applicants have not looked at the position before 1990, and have not denied that the respondents had the requisite charitable status after that date, there is really no contradiction of the respondents’ assertion that they satisfied that test. The correspondence from the Housing Corporation, the body then particularly involved in this issue, indicates that Castle Rock was in April 1987 exempt.

[18] However, we have felt it necessary to consider the evidence before us. Despite the standing of the Housing Corporation, we are not aware of any provision for statutory certification or authentication by that body. The respondents have to satisfy us of the position.

[19] As we have said, such documentation as was produced was not formally spoken to and might be described as indirect and somewhat thin. However, we require to be satisfied on this only on a balance of probability; there is no contradictory evidence, and the evidence is in effect that the position has always been accepted; there is a reference to registration as a charity since 1940; there are indications of acceptance by the Inland Revenue of the position; and there is at least some other reference to registration before the commencement of the applicant’s tenancy. In this state of affairs, while the evidential position is not altogether satisfactory, we have decided that we can be satisfied on a balance of probability that the test in Section 61(4)(e)(i), or alternatively 61(4)(e)(ii), is satisfied. On the material before us, we find that the respondents have throughout the applicant’s tenancy satisfied the statutory test in force at the time for exemption as a charity.

Decision

[20] We have accordingly decided that Section 61(1) of the Act of 1987 has at no time applied to the applicant’s tenancy. She does not have the right to buy. We must refuse her application.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 November 2013

Neil M Tainsh – Clerk to the Tribunal