First-tier Tribunal Denies Right to Buy for Elderly-Suitable Housing

OUTCOME: Dismissed

© CROWN COPYRIGHT

Case Reference : BIR/00CU/RTB/2022/0003

[NAME] : [ADDRESS], Bloxwich, [RESPONDENT], [POSTCODE]

Applicant: [redacted]

Respondent: [redacted] : An application under paragraph 11 of Schedule 5 to the Housing Act 1985 (“The Act”). (Denial by Landlord of the Right to Buy provisions of the Act because [NAME] is particularly suitable for occupation by an elderly person).

Tribunal Members : [NAME] (Hons) F.R.I.C.S.

[NAME] M.B.A M.R.I.C.S.

Date of Decision : 12 August 2022

___________________________________________________________

DECISION ______________________________________________________

FIRST – TIER TRIBUNAL [NAME] CHAMBER ([NAME])

Page 2 of 9

Background

1. The Applicant, [APPELLANT] (“the Applicant”), applied to [RESPONDENT[COMPANY] (“the Respondent”) to buy [ADDRESS], Bloxwich, [RESPONDENT] [POSTCODE] (“[NAME]”) under the Right to Buy provisions contained in the Act.

2. By way of an RTB2 Form – Notice in Reply to Tenant’s Right to Buy Claim, the Respondent served notice on the Applicant denying the right of the Applicant to buy [NAME] as in their opinion, paragraph 11 of Schedule 5 to the Act applies. This form was dated 9 March 2022.

3. By an application received on 25 April 2022, the Applicant applied to the Tribunal pursuant to section 181 of the Housing Act 2004 for a determination as to whether [NAME] was excluded from the Right to Buy (RTB) provisions contained in the Act on the grounds that the dwelling:

 was first let before 1 January 1990

 is particularly suitable, having regard to its location, size, design, heating system and other features, for occupation by elderly persons; and

 was let to the tenant or a predecessor in title of his for occupation by a person who was aged 60 or more.

4. The Office of the Deputy Prime Minister Circular 07/2004 entitled Right to Buy: Exclusion of Elderly Persons’ Housing (“the Circular”) gives guidance on the criteria to be adopted in determining the suitability of a dwelling house for occupation by elderly persons. The Circular also provides details of the “Lettings Test”: it is reiterated that paragraph 11 of Schedule 5 of the Housing Act 1985 applies only if the dwelling in question was let ‘to the tenant or a predecessor in title of his for occupation by a person who was aged 60 or more’. The Secretary of State takes to view that this condition is only met if, when the current tenancy or that of the current tenant’s predecessor in title was granted, the landlord knew:

 that the tenant, or one or more of joint tenants, was aged 60 or more;

or

 that the dwelling was to be occupied by some other person known by the landlord to be aged 60 or more.

Page 3 of 9

5. The Tribunal is not bound by the Circular and decides each case on its merits but has regard to the Circular for guidance.

Hearing

6. The Applicant had indicated that they were content with a paper determination. The Tribunal advised the Respondent that if they required an oral hearing to advise the Tribunal upon submitting his statement. No such request was made. Accordingly, the Tribunal makes its determination on the basis of the written submissions of the parties and its own inspection of [NAME]

[NAME]

7. The Tribunal inspected [NAME] on 21 July 2022 in the presence of the Applicant, [NAME] [APPELLANT] and [NAME], employed by the Respondent as a Market and Leasehold Services Manager.

8. [NAME] comprises a semi-detached bungalow offering the following accommodation, which benefits from double glazing and gas fired central heating:

Porch Lounge Kitchen Double Bedroom Single bedroom Wet Room incorporating electric shower, wash hand basin, and low flush WC. There are grab rails fitted to the wet room. Conservatory* Rear storage area*

Externally

Car Port with block paved driveway*

9. From the evidence provided to the Tribunal and gleaned at the inspection, the Tribunal understands that the Applicant has renovated and modernised elements of [NAME] at his own expense. These renovations include the items marked * above and the paved area to the rear.

Page 4 of 9 10. To the front of [NAME] is a garden laid primarily to lawn. There is a block paved driveway which has a reasonable slope upwards from the footway to the car port and [NAME]. The terraced paved area lies immediately to the rear of [NAME] with the remainder laid to a lawned area.

11. The step from the Porch up into the lounge is 18 cm. There are no other steps of consequence.

12. [NAME] forms the front part of a small development of five similar dwellings fronting onto [ADDRESS] approximately one mile to the west of Bloxwich town centre. There is a One Stop convenience store (incorporating a Post Office), Chemist and Bus Stops on [ADDRESS] and further Bus Stops on [ADDRESS], all within 200m.

The Submissions of the parties

The Applicant

13. Within his application form, the Applicant had made the following comments with regard to [NAME]’s lack of suitability for elderly persons and provided photos to endorse the same.

a) [NAME] can only be accessed by a particularly steep drive. b) To enter the porch being the first entry point at the front of [NAME], there is a slight step. c) Once inside the porch because of a considerable difference in floor levels, a further large step has to be encountered to access the living room. d) All the doorways are narrow and the angles make manoeuvrability difficult to move from room to room. e) A further step has to be encountered to exit the rear of [NAME]. f) The only aids fitted for assistance to disabled or elderly persons are a walk in shower and outdoor wooden handrail. No special adaptations have been made to overcome the health and safety issues of suitable for elderly persons. g) Adaptations would be required to be made by the Landlord to [NAME] to satisfy the current and up to date specifications so that it could be considered suitable for future elderly tenants which would be extremely costly.

The Applicant makes the general comment that in its current state, he believes [NAME] is unsuitable for occupation by elderly persons and would require considerable structural alterations to make it so.

Page 5 of 9 14. The Applicant also draws the Tribunal’s attention to the fact that a [NAME] Authority [NAME] known as [ADDRESS], [RESPONDENT] [POSTCODE] was purchased by the Tenant

The Respondent

15. Initially, the Respondent explained that in March 2003, the housing stock owned by [RESPONDENT] was the subject of a large-scale voluntary stock transfer (LSVT) to five [NAME] housing trusts. In January 2009, these trusts amalgamated as [RESPONDENT[COMPANY] ([COMPANY]). [COMPANY] is a registered provider of social housing with charitable status and in the opinion of the Respondent should be regarded as the successor in title to those tenancies granted by [RESPONDENT] insofar as they pertain to this application.

16. The Respondent then set out the test to be applied to determine the right to buy does not apply.

 Was [NAME] first let before January 1990?

 Is [NAME] particularly suitable, having regard to its location, size, design, heating system and other features for elderly persons aged 60 or over;

 Was [NAME] let for occupation by a person who was aged 60 or more (whether or not that person was the tenant).

17. Was [NAME] first let before January 1990?

[NAME] was first let in 1986.

18. Is [NAME] particularly suitable, having regard to its location, size, design, heating system and other features for elderly persons aged 60 or over;

The Respondent stated that it is understood that the bungalows on [ADDRESS] were originally constructed in the 1960s. With regard to the subject [NAME] itself, a combi gas fired boiler was fitted in 2007, UPVC double glazed windows installed at the start of 2022 and the electrical wiring renewed/replaced in 2009 with a new consumer unit fitted more recently. The kitchen units were replaced in 2007 and the adaption of the bathroom into a wet room in 2020.

Continuing, the Respondent sets out the location of [NAME] with regard to amenities as set out in the Circular which have been confirmed by the Tribunal’s own inspection.

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The Respondent acknowledges that the gradient from the footpath to the dwelling would not be suitable for permanent wheelchair users however, in their opinion, it is not steep enough to adversely affect access to the dwelling.

The Respondent does not accept the Applicant’s comments that [NAME] requires significant adaptations to render it suitable for occupation by elderly persons; it is the policy of the Respondent to continually invest in the properties within its portfolio.

19. Was [NAME] let for occupation by a person who was aged 60 or more (whether or not that person was the tenant).

In order to put the current tenure of [NAME] into context, the Respondent provided historical background to the occupation of [NAME].

In 1968, [RESPONDENT] granted a tenancy of [NAME] to a couple. On 19 January 1986, that couple took part in an exchange with Mr and Mrs [NAME]. Mr [NAME] is believed to have been born in [DATE]. The mutual exchange was permitted by the Council as Mr [NAME] was 69 years old (and also in poor health). Mr and Mrs [NAME] thus became the joint tenants of [NAME]. Mrs [APPELLANT] became the sole tenant by right of survivorship later in 1986 when Mr [APPELLANT] passed away.

In 1989, [NAME] married Mr [APPELLANT] (and thereby became Mrs [APPELLANT]). Mr [APPELLANT] was born on [DATE]. On 9 October 1989 Mr and Mrs [APPELLANT] were granted a joint secure tenancy of [NAME] from [RESPONDENT], until the large-scale voluntary stock transfer (LSVT) whereupon all relevant secure tenancies became assured tenancies. Mr [APPELLANT] was 58; Mrs [APPELLANT] was 62. Following the LSVT, all tenants were invited to sign a new tenancy agreement reflecting their new tenancy conditions. Mr and Mrs [APPELLANT] signed a new assured tenancy agreement in respect of [NAME] on 18 September 2003 with [COMPANY] (the Respondent’s predecessor in title). Mr [APPELLANT] was then 72 years old; Mrs [APPELLANT] was 75. When Mrs [APPELLANT] passed away on 14 February 2022, Mr [APPELLANT] became the sole tenant of [NAME].

The Law

20. The relevant law is contained in paragraph 11 of Schedule 5 of the Act as follows:

(1) The right to buy does not arise if the dwelling-house:

Page 7 of 9 (a) is particularly suitable, having regard to its location, size, design heating system and other features, for occupation by elderly persons, and

(b) was let to the tenant or a predecessor in title of his for occupation by a person who was aged 60 or more (whether the tenant or predecessor or another person).

(2) In determining whether a dwelling is particularly suitable, no regard shall be had to the presence of any feature provided by the tenant or a predecessor in title of his.

(3) This paragraph does not apply unless the dwelling-house concerned was first let before 1st January 1990.

The Tribunal’s Findings (including those relevant to the Circular)

21. [NAME] is a semi-detached bungalow.

22. [NAME] benefits from a gas fired heating system which, from the information provided, appears to function correctly and provide overnight heating if required.

23. When considering the gradient to [NAME] from the footpath, the Tribunal must consider paragraph 12 of the Circular:

12.In this connection, ‘elderly persons’ will be taken to mean individuals who are able to live independently despite some limitations owning to age. It will not mean individuals who are frail or severely disabled. Provision is made separately in other paragraphs of Schedule 5 for dwelling-houses and are designed to make them suitable for such individuals.

The Tribunal accepts that the driveway gradient would cause issues for individuals who are frail or severely disabled but not for individuals that can live independently.

24. The dwelling is located conveniently for shops and public transport.

25. [NAME] offers car parking.

26. [NAME] was first let before 1990.

27. With regard to the Lettings Test, the Tribunal notes that on 9 October 1989, Mr and Mrs [APPELLANT] were granted a joint secure tenancy of [NAME] from [RESPONDENT]. At this time, Mr [APPELLANT] was 58 and Mrs [APPELLANT] was 62. The latter was an existing Tenant of

Page 8 of 9 [NAME] as Mrs [APPELLANT] (see above). Mr and Mrs [APPELLANT] signed a new assured tenancy agreement in respect of [NAME] on 18 September 2003. Mr [APPELLANT] was then 72 years old and Mrs [APPELLANT] was 75. When Mrs [APPELLANT] passed away on 14 February 2022, Mr [APPELLANT] became the sole tenant of [NAME].

Following the guidance from the Circular with regard to the Lettings Test given in 4. above, at the time of the 1989 tenancy, Mrs [APPELLANT] was 62 thus satisfying the first limb of the test, “that the tenant, or one or more of joint tenants, was aged 60 or more”. At the time of 2003 tenancy, both occupiers were over 60.

The Tribunal therefore considers the lettings test satisfied.

28. The Tribunal considered the width of doorways within [NAME] and the circulation space during its inspection. Whilst the doorways are narrow compared to those of more recently constructed properties, they would not prevent occupation of [NAME] as defined by the Circular.

29. The purchase of [ADDRESS], [RESPONDENT] by its [NAME] Authority tenant is not a relevant matter for the Tribunal to take into account. The Tribunal is only concerned with the subject [NAME] itself and factors relating to the same.

Determination by the Tribunal

30. Whilst the Tribunal has much sympathy for the Applicant in view of the amount of money and effort invested in [NAME], the matter to be decided is whether [NAME] is particularly suitable, having regard to its location, size, design, heating system and other features, for occupation by elderly persons.

31. The term “elderly persons” does not mean persons who are frail or severely disabled; provision is made in other paragraphs of Schedule 5 of the Act to exclude dwelling houses for such persons from the right to buy legislation. The Tribunal is obliged to examine suitability from the perspective of an elderly person who can live independently. The personal circumstances of the Applicant are not to be taken into account.

32. In the Upper Tribunal decision, Milton Keynes v Bailey [2018] UKUT 207 (LC), [NAME] commented:

“The question in a case such as this is whether [NAME] is particularly suitable. Some features may tend in one direction, while others point the other way. Some features may be so significant in themselves that they make [NAME] positively

Page 9 of 9 unsuitable (for example that it could only be reached by a very steep staircase). But what is required is an assessment of the whole”.

33. The Tribunal considers that, when assessing it as a whole, [NAME] is suitable for occupation by an elderly person who can live independently and noted the proximity of the shops and facilities as identified by the parties and the Tribunal’s own research which satisfy paragraph 12 f) of the Circular.

34. The Tribunal determines, therefore, after taking into account the parties' submissions and the findings of fact made by the Tribunal, that the Respondent is entitled to rely on the exception to the right to buy contained within paragraph 11 of Schedule 5 to the Act as [NAME] is particularly suitable for occupation by an elderly person.

Accordingly, the Respondent’s notice of denial is upheld. In practical terms this means that the Applicant does not have the right to purchase [NAME].

35. In making their determination the Tribunal had regard to the submission by the parties, the relevant law and their knowledge and experience as an expert tribunal, but not any special or secret knowledge.

APPEAL

36. A party seeking permission to appeal this decision must make a written application to the Tribunal for permission to appeal. This application must be received by the Tribunal no later than 28 days after this decision is sent to the parties. Further information is contained within Part 6 of The Tribunal Procedure (First-tier Tribunal) ([NAME] Chamber) Rules 2013 (S.I. 2013 No. 1169).

[NAME] (Hons) FRICS Chairman