OPINION

Stephen Kelly Oakley v North Ayrshire Council

[1] This is an application under sec 68(4) of the Housing (Scotland) Act 1987 for a finding that the applicant, Stephen Kelly Oakley, has a right to purchase his home at 4 Ardrossan High Road, West Kilbride, Ayrshire, in terms of sec 61 of that Act. It follows a refusal by respondents to sell the property to him on the ground that it is within a “pressured area” within the meaning of secs 61B and 61C of the 1987 Act as amended. The date of the application to buy the house is not clear from our papers but the respondents’ letter of refusal is dated 20 July 2016.

[2] Number 4 Ardrossan High Road is a council house owned by the respondents. The applicant, who is now 45, has lived there since the age of eight, when his mother acquired the tenancy of the property. Sadly his mother died in 2009 at the age of only 60. The applicant succeeded to the tenancy on 27 July 2009. The tenancy thus created was a “Scottish secure tenancy” within the meaning of the Housing (Scotland) Act 2001 and of the 1987 Act as amended by the 2001 Act.

[3] As well as introducing the Scottish secure tenancy, the 2001 Act contained powers to curb the right to buy. Those arose out of concern among local authorities and other social landlords about pressure being placed on their housing stock by the hitherto largely unrestricted right to buy. These concerns led to the Scottish Parliament including provision in the 2001 Act (sec 45) for the designation of certain areas as “pressured areas” within which the right to buy would be suspended. By the time the present applicant had succeeded to the tenancy of his home in July 2009, 4 Ardrossan High Road was within such an area, the relevant designation having been made for a period of five years from 14 May 2008. The effect of that was that the right to buy contained in sec 61 of the 1987 Act had been suspended in relation to Scottish secure tenancies within that area to which the tenant had succeeded after 30 September 2002 (the date specified by the Scottish Government in respect of the respondents in terms of sec 11(1) of the 2001 Act), which was the position the applicant found himself in; see sec 61B(3)(b)(ii) of the 1987 Act as amended. That designation was subsequently renewed by the respondents for a period of ten years from 27 March 2013 and the right to buy has now been abolished entirely by sec 1 of the Housing (Scotland) Act 2014 with effect from 1 August 2016.

[4] In those circumstances the applicant is the latest of a number of disappointed tenants who have seen their applications – no matter how otherwise meritorious – refused by their landlords because of pressured area status and who have applied to the Tribunal in the hope of having these refusals set aside. However, as has been explained in the cases of Caven v Irvine Housing Association LTS/TR/2015/12, decision of 22 June 2016, and Clark & Findlay v South Ayrshire Council LTS/TR/2016/13, decision of 11 October 2016, that is not something the Tribunal can do. That is simply because the right to buy was suspended at the time the applicant made his application to buy the house and has now been abolished.

[5] We acknowledge that this will be a disappointing result for the applicant. Number 4 Ardrossan High Road is the only home of which he has meaningful memories and where he lived with his mother for some 30 years before her untimely death. As the applicant says, had his mother had any foreknowledge of her early death she would probably have passed the tenancy to him much sooner and he would have been in a position to exercise the right to buy before it came to be suspended. That did not happen, however, and in those circumstances the law simply does not allow people in the position of the applicant to insist on their former right to buy nor does it give this Tribunal any discretion to overturn the respondents’ refusal to sell. The application must, therefore, be refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 December 2016

Neil M Tainsh – Clerk to the Tribunal