OPINION

Akanimoh Collins Mark v City of Edinburgh Council

[1] This case is concerned with a dispute about aspects of a “right to buy” application under the Housing (Scotland) Act 1987 (“the 1987 Act”). The applicant is Mr Akanimoh Collins Mark and the respondents are City of Edinburgh Council (“the Council”). More particularly, the dispute concerns whether the applicant is entitled to a discount on the purchase price of his council house home calculated in accordance with the original provisions of section 62 of the 1987 Act (the “preserved right to buy”) or under the less favourable provisions of that section as amended by section 49 of the Housing (Scotland) Act 2001 (“the modernised right to buy”). Preliminary questions arise as to whether the application to the Tribunal is out of time.

[2] The Tribunal appointed a hearing on the application to take place and, by way of clarification of the procedure to be followed at the hearing, the President issued a note indicating that it should take the form of a legal debate. We heard that debate at Edinburgh on 15 December 2014 when the applicant represented himself and Ms Kirsty Slee, solicitor, of Anderson Strathern LLP, appeared for the Council.

Statutory material

[3] The Housing (Scotland) Act 1987, secs 62, 65(2), 66(1) and 71(1)(d)
The Housing (Scotland) Act 2001 (“The 2001 Act), sec 49
The Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc.) Order 2002 (“The 2002 Order”)

Authorities

[4] McAllister v Queen’s Cross Housing Association Ltd 2002 SLT (Lands Tr) 13
Rizza v Glasgow Housing Association Ltd LTS/TR/2007/11, 25 March 2008
Peter Carey v Glasgow Housing Association Ltd LTS/TR/2010/2, 5 January 2011
Fletcher v South Lanarkshire Council 2006 SLT (Lands Tr) 51
Graham v Northern Joint Police Board 2000 SLT (Lands Tr) 7

Additional References

[5] Scottish Public Services Ombudsman Decision 2009 04272

Background

[6] While the hearing took the form of a legal debate, a considerable amount of factual material was provided in the pleadings and productions and was supplemented by the parties, principally by the applicant, who based much of his submission on the particular circumstances of his case. These circumstances may be summarised as follows.

[7] On 12 March 2001 Mr Mark took up a tenancy from the Council of a flat at 46/3 Dumbryden Gardens, Edinburgh. Over the next eighteen months there were issues with water penetration. This came to a head in December 2003 when the kitchen ceiling collapsed and a bedroom ceiling appeared to be in danger of collapsing. Mr Mark required to vacate the property in the interests of safety as well as comfort. As the Council could not provide temporary accommodation immediately Mr Mark stayed with his brother until after the Christmas break. On 8 January 2004 the Council provided Mr Mark with accommodation at 20/1 Calder Drive, Edinburgh. On Mr Mark’s account there was then little communication between the Council and himself as to progress with the repair of the Drumbryden Gardens flat. He would have been happy to return there. In July 2004 the Council approached Mr Mark offering to make his occupation of Calder Drive permanent. Mr Mark decided to accept the offer of the Calder Drive flat and signed a new tenancy agreement.

[8] In the spring of 2007 Mr Mark applied to purchase the Calder Drive flat and received a formal offer of sale from the Council dated 25 June. The discount which was offered was at a capped level of £15,000 under the “modernised scheme” and did not match his expectation of a considerably larger discount under the “preserved right to buy” regime. He did not accept the offer. The present application was lodged with the Tribunal on 16 July 2014. It is an application under sec 65(2) of the 1987 Act for a determination of the level of discount to which Mr Mark is entitled.

Competency and Time Limits

[9] The foregoing chronology and the respondents’ pleadings having alerted the Tribunal to the existence of questions as to the competency of the application, at the outset of the debate Ms Slee was asked to confirm whether it remained the position of the Council that there was no active application in existence, which she did. After taking us through a resume of sections 61 to 66 of the 1987 Act she submitted that where an offer to sell had been duly issued to an applicant and there was no outstanding issue in terms of section 66(1)(a) then, if after two months an acceptance had not been received, the application was treated as having lapsed. There was no longer a live right to buy offer open for acceptance or on which to found a reference to the Tribunal. Alternatively the application to the Tribunal was time barred as it had not been lodged within the maximum of two months set out in section 65(2) under which the application to the Tribunal had been brought.

[10] Asked whether the application might equally have been taken under section 71(1)(d) Ms Slee acknowledged that there appeared to be no time limit for a reference to the Tribunal under that sub-section although she thought that this would be likely to cause some practical difficulties. The Tribunal indicated that a previous decision of the Tribunal, Fletcher v South Lanarkshire Council, had found there to be no short time limit under that section. Ms Slee also agreed that section 65 seemed largely to be concerned with “conditions” and that matters concerning “discount” were more naturally relevant to an application under 71(1)(d) to the effect that the offer failed to conform to the requirements of section 63(2). While the pre-printed part of the application form used by Mr Mark bore reference to section 65(2), the handwritten text made it clear that the amount of discount was the issue. Ms Slee accepted that it would reasonable to treat the application as having been made under section 7(1)(d) and that she would not oppose such an approach being taken.

[11] However, it remained her position that the application was no longer live and that although there was no specific time limit for applications to the Tribunal contained within section 71(1) itself, section 66(1) had the effect of imposing a time limit. The change of section made no difference to the outcome in terms of competency or time bar. Distinct from these preliminary matters she remained of the view that on the merits the application fell to be rejected.

[12] In reply, Mr Mark narrated some of the background set out above and indicated that he would expand on this when the merits were considered. When he made his application to purchase in 2007 the procedure had advanced without incident until the point was reached when he received an offer that did not provide the level of discount that he had been expecting. But for that a sale would have been concluded. There was an active application. When he came to pursue a complaint with the Council it had taken some time for it to be appreciated that he had indeed made an application to buy his home. Reaching the stage of finality in the complaint procedure (as set out in the Council’s letter of 23 April 2012, production 7) had been a slow business. He had felt that it would be a waste of judicial time for him to make an application to the Tribunal while the matter was still being considered by the Council.

[13] Asked why it had, nevertheless, taken more than two years to make the application to the Tribunal following the Council’s letter of 23 April 2012 concluding the complaints procedure, Mr Mark said that he had come upon a decision of the Public Sector Ombudsman in a case involving South Lanarkshire Council (No 2009 04272) that seemed similar to his circumstances and he had pursued the matter with the Ombudsman. That had taken time. Mr Mark told us that the Ombudsman had indicated that the issue did not lie within his jurisdiction and that Mr Mark should bring the matter to the Tribunal.

[14] Ms Slee pointed out that the Ombudsman’s decision in the Lanarkshire case had not been issued until July 2011. The delay between the expiry of the period for acceptance of the offer in 2007 and the application to the Tribunal in July 2014 was therefore largely unexplained.

[15] Mr Mark suggested that these matters should be viewed in context and that in general he had not been aware of time limits for the taking of particular actions. The Council had never mentioned the existence of time bars. He had thought that in taking up the matter as a complaint with the Council and the Ombudsman he was proceeding correctly.

[16] At the conclusion of these submissions we indicated that we would reserve our position as to the procedural issues and hear submissions on the substance of the application.

Submissions on the merits

(i) for the applicant

[17] By way of introduction the President indicated that it was understood that the 2001 Act brought about changes to the discount regime and that Mr Mark was caught up in the issue of whether the modernised regime established by the 2001 Act or the pre-existing level of discount applied to his circumstances. Aspects of those matters had been the subject of decisions of the Tribunal such as Rizza v Glasgow Housing Association Limited and Carey v Glasgow Housing Association Limited, copies of which had been lodged by both sides.

[18] Mr Mark elaborated on the background he had sketched in relation to the procedural matters. There was no dispute that he had acquired a right to buy at a discount calculated on the old rules at Drumbryden Gardens. He had been forced to move through no fault of his own. There had been Council ineptitude in effecting repairs and handling communication with him. He had not wanted to move and had been keen to return. He had received no information for around six months and then suddenly the Council had wanted to make the move permanent. He had signed the new tenancy agreement. It was the crux of his case that the Council had failed to inform him that the creation of a new tenancy would affect his discount under the right to buy scheme in clear breach of their duty to provide him with certain information in terms of section 23(4) of the 2001 Act.

[19] In the absence of such information he had expected to have a preserved right to buy. If he had been informed that the effect of taking a new tenancy would be a reduction of the discount to which he was entitled because of the application of the modernised right to buy he would have waited and gone back to Drumbryden Gardens once the repairs had been completed.

[20] In response to a question as to whether he could point to any statutory provision that would entitle the Tribunal (if satisfied as a matter of fact) to take into account a failure to discharge the duty set out in section 23(4) Mr Mark could only point to the terms of the section and to the South Lanarkshire case which appeared to him to deal with a similar point.

[21] Mr Mark also confirmed that he accepted that the exceptions set out in article 4 of the 2002 Order as amended (which preserve the uncapped discount despite a change of tenancy in very limited circumstances)did not apply to his case. In addition he confirmed that in his short written comments attached to the cases which he had submitted as authorities he was indicating that he accepted the fact of the modernised regime and the lack of application of the exceptions in the Order to his circumstances. Nevertheless, by not advising him of the effect of the creation of a new tenancy on his right to buy, there had been a failure to carry out a clear statutory duty. The circumstances that had arisen had not been the result of any fault on his part and should be brought into the Tribunal’s consideration in relation to discount.

(ii) for the respondents

[22] Ms Slee sought clarification of the basis on which she should address the Tribunal as there were a number of factual matters on which she did not accept the applicant’s description of events. We confirmed that she should deal with issues relevant to a legal debate. If there was a need for further and fuller investigation of the facts that would be dealt with separately at a later date.

[23] Ms Slee then submitted that even accepting everything said by Mr Mark as fact it did not provide the Tribunal with a basis for interfering with the provisions of section 62 of the 1987 Act dealing with the calculation of discount to be awarded. As she understood the position Mr Mark accepted that his situation was governed by the modernised right to buy but wanted the particular circumstances of his case and the conduct of the Council to be taken into account such as to allow discount to be calculated on the preserved terms. There was no basis for doing so.

[24] The circumstances were similar to those in Carey where at paragraph 3 the Tribunal had made it clear that it had no discretion to vary the amount of discount. She accepted that Mr Mark felt aggrieved in a number of respects but these were not matters which the Tribunal could take into account in reaching a decision on the case.

[25] We indicated that it was not necessary for Ms Slee to go through the terms of the exceptions in the 2002 Order as they were not engaged or relied upon. As to where Mr Mark’s remedy for his grievances might lie, if not with the Tribunal, until recently she would have suggested the Public Sector Ombudsman but it now appeared that Mr Mark had explored that route without success. She could think of no other avenue but, be that as it may, the Tribunal could not grant the relief sought.

[26] Ms Slee accepted that in correspondence as recent as February 2012 (production 12) the Council had advised Mr Mark to make application to the Tribunal.

(iii) response by applicant

[27] In reply, in relation to Carey, Mr Mark emphasised that in Carey the change of address had been voluntary due to a medical condition whereas in his own case it had not.

Tribunal’s Consideration

Competency of Application and Time Bar

[28]Given that Ms Slee (rightly in our view) consented to the application being treated as arising under section 71(1) rather than section 65(2), her initial submission on there being no live application before the Council which the Tribunal could consider came up against the difficulty that section 71(1), unlike section 66(1), does not contain a time limit. She did, nevertheless, argue that the effect of section 66(1) was to import a time limit into section 71(1)(d). That argument was considered but rejected by the Tribunal in Fletcher and Graham, in both of which it was held that there was no “short time limitation period” for applications under section 71; see Graham at p 16E-F and Fletcher at p 55J. Not having had any reason to anticipate this turn of events, Ms Slee had not had the opportunity of considering these cases.

[29] Fletcher arose in relation to an application lodged just over two months after the date of an offer to sell. That is a very different order of delay compared to the current case. Graham decided the same general point in the same way but on very different facts. It involved a delay of a number of years during which not even an acknowledgement of receipt of an application to purchase had been issued, far less an offer of sale. It is clear that in both of these cases there was a recognition that there was no short time limit under section 71 but they also indicate that there may be instances where the facts of a case and the actings of the parties might give rise to waiver or acquiescence on the part of the tenant; Graham at pp 16-18, Fletcher at 56B.

[30] Without giving Ms Slee an opportunity to address us more fully on these matters it would not be appropriate to decide them against the respondents. However, given that we have been able to reach a clear conclusion on the merits of the case, it is not necessary to incur further expense and delay by pursuing them further.

Mr Mark’s complaints against the Council

[31] Mr Mark is plainly aggrieved at what he sees as less than satisfactory service from the Council. He has concerns as to the way in which repairs and communications were handled. While we have not held an evidential hearing it is clear on any view of the correspondence submitted that there was some confusion in the Council’s handling of Mr Mark’s complaint. At some points the persons dealing with the matter seem to have had no awareness that he had lodged a right to buy application in 2007 (see letters of 3 August and 9 September, 2011, from the Council to Mr Mark, productions 5 and 8). At another point, in February 2012, the Council advised Mr Mark to make an application to the Tribunal notwithstanding that, by that time, he was already well outwith the time limit for which the Council contended before us (letter from respondents to Mr Mark dated 3 February 2012, production 12).

[32] One of the general failures to which Mr Mark spoke was to the effect that in his engagement with the Council he had not been aware of, and had not been advised, that there were time limits that required to be observed. In fairness to the Council, however, it is worth recording the wording of the letter that accompanied the offer to sell sent to Mr Mark in 2007 (production 4):-

“…The offer is an important document. It is in your best interests to consult a Solicitor and you are strongly advised to take this letter and the offer to your Solicitor immediately. Strict time limits for acceptance (TWO MONTHS from date of offer) and/or qualifications to the offer (ONE MONTH from date of offer) apply (Sections 66(1) and 65(1) of the Act) and failure to observe these time limits could result in your present application being cancelled.”

[33] Notwithstanding this notice of the fact that at least some time limits applied, there followed a gap of some four years in the continuity of events. The offer was issued in June 2007 and yet the earliest material provided concerning any complaint by Mr Mark to the Council is dated 3 August 2011 (production 5) which makes reference to a ‘recent’ letter from Mr Mark. We accept, as Mr Mark says in his letter to the Council of 10 November 2011 (production 9), that he only refused to accept the offer when he realised that he was on the modernised right to buy instead of the preserved right to buy. We also note his explanation that he had been spurred into action by coming upon the Ombudsman’s report in the South Lanarkshire case. But none of that explains why, when he was in possession of an offer stressing that time limits applied and where he had an appreciation of the distinction between the two discount schemes, he failed to object to the offer as he now seeks to do. On the material before us it would seem that Mr Mark allowed four years to elapse before taking any action. Even then he resorted to the Council’s complaints procedure and to the Ombudsman rather than to an application to the Tribunal.

[34] The central criticism made by Mr Mark was that the Council failed to advise him of the effects of entering a new tenancy on his pre-existing right to buy. The argument is that if that duty had been discharged and Mr Mark had become aware that he would lose his preserved rights if he took up a new tenancy of Calder Drive then he would have declined the new tenancy and waited to return to Drumbryden Gardens. As he sees it, because he has lost out through no fault of his own, he should be allowed a discount on preserved terms on the Calder Road property. However, he was not able to point to anything that provides a basis for the Tribunal to exercise any jurisdiction over a failure to provide information under section 23(4) of the 2001 Act. Nor was he able to point to a power allowing the Tribunal to take into account such a failure in deciding whether section 62(3) of the 1987 Act had been applied correctly, nor indicating how the Tribunal could or should vary the discount when a failure arose in complying with the section.

[35] Mr Mark’s complaint, if factually well-founded, is a serious one but it is not one for which the Tribunal is empowered to provide a remedy. As we explained to Mr Mark in the course of the hearing, the Tribunal’s powers and its ability to take certain matters into account are all circumscribed by Parliament in the form of the legislation we have been discussing. It may seem surprising that the Ombudsman felt unable to entertain such a complaint, but that is a matter for that official, not for us. There is no remedy we can offer based on alleged failings on the part of the Council of the kind Mr Mark describes.

Merits

[36] Having dealt with the foregoing matters, we come to the merits of the application. The Tribunal’s jurisdiction in matters of right to buy is to be found is section 65 of the 1987 Act which empowers the Tribunal to vary conditions contained in an offer of sale which are objected to by the tenant, section 68 which deals with refusal to sell a property and section 71(1) of the Act which sets out four particular matters which may be referred to the Tribunal by the tenant.

[37] Paragraphs (a) to (c) of section 71(1) deal respectively with lack of timely offers or refusal notices; failures to issue timely revised offers following a determination by the Tribunal under section 65; and failure to progress applications in accordance with orders or findings of the Tribunal under other sections of the Act. It is not suggested that any of these heads is relevant to the case before us.

[38] Section 71(1)(d) is concerned with offers to sell whose contents are not in accordance with the requirements of paragraphs (a) to (e) of section 63(2) of the Act or where such contents have not been arrived at in accordance with the provisions set out in those paragraphs. Those paragraphs require offers to sell to contain the following:

a) “the market value of the house determined under section 62(2);

b) the discount calculated under section 62(3);

c) the price fixed under section 62(1);

d) any conditions which the landlord intends to impose under section 64; and

e) an offer to sell the house to the tenant and any joint purchaser named in the application to purchase at the price referred to in paragraph (c) and under the conditions referred to in paragraph (d)”

[39] The relevant provision for present purposes is paragraph (b) dealing with discount. Section 62(3) sets out the detail of how the discount is to be calculated in the following terms:

“(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 (including accommodation provided as mentioned in section 61(11)(n)) 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.”

[40] Subsection 5 (as amended) is not relevant to the circumstances of this case. The offer of sale issued to Mr Mark incorporated the maximum discount of £15,000. There is no doubt that this is the correct discount if the modernised right to buy provisions apply.

[41] Had Mr Mark remained a tenant at Drumbryden Gardens and exercised his right to buy there, he would not have been affected by this cap on his discount. Instead he would, we understand, have been entitled to a significantly higher one. But that tenancy was terminated and Mr Mark accepts that, his new Scottish secure tenancy at Calder Drive having commenced after the 2001 Act came into force, he falls into the category of those purchasers to whom the modernised terms are to apply. He also concedes that he does not fall into any of the small number of excepted categories set out in section 4 of the 2002 Order.

[42] The case of Carey, referred to by both parties, has much in common with the current application and in respect of the character and limits of the Tribunal’s jurisdiction we respectfully concur with the views of the member who decided that case. We have no powers to vary the way in which discount is calculated. The Tribunal’s task when a dispute arises is to ensure that section 62(3) is applied correctly. Looking to the details of the offer issued by the Council, Mr Mark has failed to demonstrate that the amount of discount applied in the offer is not in accordance with the terms of section 62(3). The application must therefore be dismissed.

[43] If any issue of expenses arises then that can be the subject of a written submission in keeping with normal practice.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 20 January 2015

Neil M Tainsh – Clerk to the Tribunal