OPINION

Evelyn Dickson v Ore Valley Housing Association

[1] In this application Mrs Evelyn Dickson seeks a finding in terms of sec 68(4) of the Housing (Scotland) Act 1987 (“the Act”) that she has a right to purchase her home at 15 Westfield Terrace, Cardenden, Lochgelly, Fife (“the subjects”), from her landlords, Ore Valley Housing Association.

[2] On 13 July 2016 Mrs Dickson applied to buy the subjects, which she occupies under a Scottish secure tenancy under the Act, in the joint names of herself and her grand-daughter, Ms Nicole Sinclair, but her application was refused, by letter dated 5 August 2016, on the ground that Ms Sinclair had not been occupying the subjects as her only or principal home along with Mrs Dickson for a continuous period of six months prior to the application (a reference to the statutory requirement contained in sec 61(6)(a) of the Act). The final sentence of that letter said “In the event that you dispute this decision, you may wish to seek independent legal advice or alternatively raise the matter through our Complaints Procedure, a copy of which is enclosed.”

[3] Mrs Dickson chose to pursue the matter through the complaints procedure referred to and did so by formal complaint dated 5 September 2016. The respondents treated her complaint as a request to exercise their discretion to allow Ms Sinclair to buy the subjects along with her and by letter dated 30 September 2016 intimated that they were refusing to do so, saying:

“Our decision is to continue to adopt the position that we will not use that discretion on the basis that our main objective as an organisation is to provide social rented housing for those in need of that resource.

The Association was founded on the principle that community assets should wherever possible deliver community benefit and that is best achieved by retaining them in community ownership.”

That letter concluded by advising Mrs Dickson that she had a “further right of appeal” to this tribunal.

[4] At that point Mrs Dickson took legal advice and the present application was lodged with the Tribunal on 31 October 2016.

[5] On 21 November 2016 Thorntons LLP, acting on behalf of the respondents, lodged answers to the application wherein it was argued (a) that the application was time-barred under sec 68(4) which prescribes a period of one month from the service of a notice of refusal within which a tenant can apply to this tribunal and (b) that, Ms Sinclair not satisfying the residence requirement of sec 61(6)(a), it was, under para (b) of that subsection, a matter for the respondents’ discretion whether or not to allow the subjects to be bought in the joint names of Mrs Dickson and Ms Sinclair and they could exercise that discretion as they wished.

[6] The applicant’s agents then adjusted her pleadings and parties indicated that they were content to have the application disposed of by way of written submissions, without an oral hearing. Regrettably, however, before written submissions for the applicant had been prepared her Legal Aid application was refused and her agents, therefore, required to withdraw from acting. That is very unfortunate in our view, since, as will appear below, there are aspects of this case which would have benefitted from full legal argument.

[7] Leaving aside for the moment the question of time-bar, there was an aspect of the case which caused us concern when we came to consider the respondents’ submissions. It was this: that whilst the respondents may very well have been entitled (indeed, as we decide below, were entitled) to refuse to sell the subjects to Mrs Dickson and Ms Sinclair jointly, were they also entitled to refuse to sell to Mrs Dickson on her own, since she, unquestionably, satisfied the statutory right-to-buy criteria? We invited further submissions from parties on that point and both responded but Mrs Dickson’s position turned out to be that she simply could not afford to buy the house on her own. Although it is well known to anyone who has operated in this area that ways could have been devised of allowing Ms Sinclair to fund the purchase and secure her interest in the subjects albeit title was being taken in the sole name of Mrs Dickson in the first instance, Mrs Dickson, unrepresented and unadvised as she now is, has decided not to pursue that course.

Tribunal’s consideration

[8] We begin by setting out the relevant legislation.

[9] So far as time-bar is concerned, the relevant provisions were (the right-to-buy provisions now having been repealed by the Housing (Scotland) Act 2014) contained in sec 68 of the Act and read:

“(1) Where a landlord on which an application to purchase has been served disputes the tenant’s right to purchase a house under section 61, it shall by notice (referred to in this Part as a “notice of refusal”) served within one month after service of the application to purchase

(a) refuse the application; or

(b) offer to sell the house to the tenant under section 14, or under any other power which the landlord has to sell the house.

(2) Where a landlord on which an application to purchase has been served, after reasonable enquiry (which shall include reasonable opportunity for the tenant to amend his application), is of the opinion that information contained in the application is incorrect in a material respect it shall issue a notice of refusal within 2 months of the application to purchase.

(3) A notice of refusal shall specify the grounds on which the landlord dispute the tenant’s right to purchase or, as the case may be, the accuracy of the information.

(4) Where a landlord serves a notice of refusal on a tenant under this section, the tenant may within one month thereafter apply to the Lands Tribunal for a finding that he has a right to purchase the house under section 61 on such terms as it may determine.”

So far as the residence requirement is concerned, it was contained in sec 61(6):

“A tenant may exercise his right to purchase, if he so wishes, together with one or more members of his family acting as joint purchasers, provided –

(a) that such members are at least 18 years of age, that they have, during the period of 6 months ending with the date of service of the application purchase, had their only or principal home with the tenant and that their residence in the house is not a breach of any obligation of the tenancy; or

(b) where the requirements of paragraph (a) are not satisfied, the landlord has consented.”

The time-bar point

[10] There is no doubt that the letter of 5 August 2016 contains all the requirements of a notice of refusal in terms of sec 68. It told Mrs Dickson that her application was being refused and why. There was no statutory duty on the respondents to advise her at that point of her right to appeal to this tribunal within a month although it would have been good practice to do so. What they certainly ought not to have done was mislead Mrs Dickson into thinking that she could challenge their decision under their complaints procedure without any risk to her statutory right of application to this tribunal. Had Mrs Dickson continued to be represented we would have been interested in hearing argument to the effect that this advice, on which Mrs Dickson acted to her prejudice, barred the respondents from relying on sec 68(4) before this tribunal. An alternative approach might have been to argue that the letter of 5 August did not constitute a notice of refusal because it made clear that it was not necessarily the respondents’ last word on the matter. Neither of these points having been taken on Mrs Dickson’s behalf, however, it is not for us to make her case for her and, in any event, we have not had the benefit of submissions on them. Accordingly, we hold that the letter of 5 August was indeed a notice of refusal and, this application not having been lodged until 31 October 2016, is time-barred.

The respondents’ right to refuse the application

[11] Mrs Dickson does not dispute that her grand-daughter had not been living at the subjects as her only or principal home for at least six months before she, Mrs Dickson, applied to buy her house. Instead, the position was that Ms Sinclair was, and no doubt is, in the habit of spending weekends with her grandmother, helping with her care and giving her own mother some respite from being Mrs Dickson’s full-time carer. Going forward, Ms Sinclair’s intention was to forego any intention of buying a house of her own and, instead, fund the purchase of her grandmother’s house in their joint names and move in with her as her full-time carer. Accordingly, there is no doubt Ms Sinclair did not qualify as a joint purchaser under sec 61(6)(a).

[12] That left the matter as one for the respondents’ discretion under para (b) of the subsection. Under reference to what was said by the Tribunal (J N Wright QC) in Young v East Dunbartonshire Council unreported decision of 12 November 2007 LTS/TR/2007/05 their agents make the point that the Act does not prescribe how landlords should exercise their discretion in such a situation and submit that “ [t]he landlords are entitled to exercise their discretion as they see fit and have done so.”

[13] Young involved a similarly uncircumscribed discretion contained in subsec (10)(b)(iv) of sec 61 concerning the continuity of periods of occupancy for the purposes of entitlement to exercise the right to buy. In that case the Tribunal said:

“11. The difficulty for the applicant is that the statute gives that discretion to the landlord, i.e. it is basically left up to the landlord to decide whether to exercise it and it is not for the Tribunal to decide whether the gap [in occupancy] resulted from circumstances outwith the applicant’s control.

12. This is a new provision introduced by the 2001 Act. It might be going too far to say that the Tribunal has no jurisdiction at all to consider the landlord’s exercise of this discretion, although we would prefer to have fuller submissions before giving a definite opinion on that matter. The question would not be whether there were circumstances outwith the applicant’s control, but whether the respondents made an error in law in deciding that there were not. The question whether there was error of law in the exercise of a discretion is not straightforward.” [A fuller discussion of that matter then follows.]

[14] The applicant’s argument in the present case is that the respondents have exercised their discretion unreasonably because they have left account, or given inadequate weight to, the advantages to Mrs Dickson of the proposed arrangement between her and her daughter. However, as was said in Young, the fact of the matter is that Parliament left it up to landlords as to whether and, if so, how, they were to exercise their discretion in terms of granting or refusing consent to a purchase in joint names. It did not even make it a requirement that landlords had to explain why they had exercised their discretion as they had. As it happens, in this case the respondents purported to give their reasons, in their letter of 30 September, quoted above. It is quite clear to us that these reasons are not reasons for refusing to allow a purchase in joint-names. They do not address that question at all. Instead what appears to us to have happened here is that the respondents have taken advantage of the fact that this application has been presented in joint names in order to apply a policy of opposition to the sale of “community assets”. That is a perfectly understandable policy position for them to adopt, given their objectives but it is not a reason for refusing consent to a purchase in joint names. However, since they need not have given reasons at all, the fact that the reasons they give are entirely beside the point does not entitle us to intervene. The fact is that in terms of sec 61(6)(b) they are free to refuse consent for any reason they please.

[15] The situation is, therefore, that the respondents were entitled to refuse consent to Mrs Dickson’s application to purchase the subjects in joint names. That left the question whether they were obliged to offer to sell to Mrs Dickson on her own but since that is not something Mrs Dickson wishes to pursue we say no more about it. Accordingly the application is refused.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 April 2017

W Douglas Ballantyne – Deputy Clerk to the Tribunal