OPINION

Sheena Duguid (applicant) v Sanctuary Scotland Housing Association Limited (respondents)

Subjects: 1 Gaitside Road, Aberdeen

[1] This is an application by Mrs Sheena Duguid (“the applicant”) for a finding under sec 68(4) of the Housing (Scotland) Act 1987 (“the 1987 Act”) that she has a right to buy her home at 1 Gaitside Road, Aberdeen (“the subjects”), which she presently leases from Sanctuary Scotland Housing Association Ltd (“the respondents”). The applicant is represented by Hingston’s Law, solicitors, Aberdeen and the respondents by Harper Macleod LLP, solicitors, Edinburgh, both of whom have agreed that we may deal with the application on the basis of written submissions and without the need for a hearing.

[2] The applicant applied to buy her home before the right to do so was abolished with effect from 1 August 2016 by virtue of section 1 of the Housing (Scotland) Act 2014. Although we have not been given the date of her application, the respondents’ notice of refusal is dated 26 July 2016. The applicant is therefore entitled to bring this application because of the transitional arrangements contained in Housing (Scotland) Act 2014 (Commencement No. 1, Transitional and Saving Provisions) Order 2014/264.

[3] Both the factual and legal history of matters is set out very fully in the respondents’ answers to the application and we do not understand the following account of events to be disputed from either a factual or legal point of view (and, with regard to the latter, we have satisfied ourselves as to the accuracy of the statutory changes referred to):

i. The applicant first occupied the subjects on 28 February 1994 in terms of an occupancy agreement with Deeside Housing Co-operative Ltd (“Deeside”), who then owned the subjects.

ii. Deeside were a mutual housing co-operative at that time and, as such, their tenancies could not be assured tenancies in terms of para 11(d) of Schedule 4 to the Housing (Scotland) Act 1988 (“the 1988 Act”), with the consequence that their tenants did not have the right to buy otherwise conferred by sec 61 of the 1987 Act.

iii. In 2000 Deeside transferred their whole undertaking to Tenants First Housing Co-operative Ltd (“TFHC”), another housing co-operative and, therefore, like Deeside, incapable of granting assured tenancies.

iv. In relation to local authorities and housing associations, the Housing (Scotland) Act 2001 (“the 2001 Act”) replaced secure tenancies under the 1987 Act and assured tenancies under the 1988 Act with Scottish secure tenancies and on 31 August 2003 the applicant entered into a Scottish Secure Tenancy agreement with TFHC. However, because TFHC were a co-operative housing association for the purposes of sec 61(4)(ca) of the 1987 Act they were, as at 31 August 2003, exempt from the right to buy conferred on Scottish secure tenants by sec 61(1) of the 1987 Act, as amended by the 2001 Act.

v. Section 44 of the 2001 Act inserted a new sec 61A into the 1987 Act, the effect of which was to impose a moratorium on the right to buy under sec 61 for a period of 10 years from 30 September 2002 and any further period determined by the Scottish Ministers on the application of the relevant landlord.

vi. In or around September 2012 TFCH changed their constitution so as to cease to be a co-operative housing association and become instead a registered Scottish charity and a subsidiary of Sanctuary Housing Association, the present respondents. Although this meant that they lost the immunity from the right to buy provided for in sec 61(4)(ca) of the 1987 Act, their tenants could still not exercise the right to buy because the moratorium referred to in the immediately foregoing paragraph had been extended by Scottish Ministers, at the request of TFCH, for a further period of 10 years, so as to expire on 30 September 2022.

vii. Accordingly, when the applicant applied to buy her home in or around July 2016, she was met with a refusal based on the moratorium.

viii. The right to buy has now been abolished as aforesaid.

[4] The applicant’s agents do not challenge any of this. Their point is, rather, that she is being treated unfairly because some other tenants of TFCH have been permitted to buy their homes. We quote from their letter of 6 October 2017:

“Whilst Sanctuary Scotland Housing Association Limited agents have provided a timeline regarding the change of ownership and relevant timelines our client’s argument still remains that Tenants First and their successors have allowed tenants to purchase their homes outwith these timelines and guidance … My client’s main concern is that whilst she is not being permitted to purchase her property Tenants First have permitted other tenants to purchase their property and indeed her son was permitted to purchase this property having only been a tenant for 1 year.”

The letter goes on to give details of how the applicant’s son came to buy his home and encloses relevant correspondence from Tenants First from which it appears that he was allowed (and presumably entitled) to do so by virtue of becoming a joint tenant with his grandmother (the present applicant’s mother) of the house in which she lived, he having moved in with her as her carer, and in reliance on her history of tenancies.

[5] The respondents’ agents have not given an explanation of how that purchase came about. They are not obliged to do so in this process, since it has no direct bearing on the present applicant’s entitlement to buy her home but it would no doubt be helpful, in assuaging the applicant’s sense of unfairness, were they, or their clients, to do so now. For our part, all we would say is that the history of legislative changes in this area of housing law since 1980, when the right to buy was first introduced, has been far from straightforward and it is entirely possible that, depending on, among other things, the history of tenancies held, one tenant may be entitled to purchase whereas another is not. This is hinted at in the letter whereby Tenants First intimated to the applicant that she did not have the right to buy. In that letter, dated 26 July 2016, they said:

“Your tenancy at 1 Gaitside Road commenced on 28th February 1994. You do not have the Contractual Right to Buy from the start of this tenancy. We have a very small percentage of tenants who have this generous Contractual Right to Buy. These tenants have lived in their homes since generally the 1980s and were previously Scottish Homes tenants.”

[6] Be that as it may, what the respondents and their predecessors may have done in respect of other tenants does not affect the law as it applies to the facts of the present applicant’s case and we are unable to find for her on the basis of perceived unfair treatment.

Decision

[7] The outcome of all of this is that we are satisfied that at the time of her application to do so the applicant did not have the right to buy her home by virtue of sec 61 of the 1987 Act or otherwise. Her application for a finding to the contrary is therefore refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 June 2018

Neil M Tainsh – Clerk to the Tribunal