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

OUTCOME: Dismissed

1

Case number

: BIR/17UJ/RTB/2019/0002

[NAME]

: 35 Pineview, Danesmoor, Chesterfield, Derbyshire, [POSTCODE]

Applicant: [redacted]

Respondents

: [redacted]

North East Derbyshire District Council (2)

Type of Application : An Application under paragraph 11 of Schedule 5 to the

Housing Act 1985 following denial of the Right to Buy under

that Act because [NAME] is particularly suitable for

occupation by [NAME]

Tribunal Members : Judge David R Salter (Chairman)

[NAME] (Deputy Regional Valuer)

Date of Decision : 31 May 2019

____________________________________________________________

DECISION

© CROWN COPYRIGHT 2019

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

2 Preliminary matter

1 [COMPANY] is a company limited by guarantee which is controlled by North East Derbyshire District Council (‘the Council’). It is responsible for the management of the Council’s housing stock, including [NAME] which is the subject of this application.

REASONS

Background

2 This is an application to the First-tier Tribunal ([NAME] Chamber) ('the Tribunal') to determine whether the exception to the right to buy in paragraph 11 of Schedule 5 to the Housing Act 1985 (‘the Act’) ([NAME] particularly suitable for occupation by [NAME]) applies to 35 Pineview, Danesmoor, Chesterfield, Derbyshire [POSTCODE] (‘[NAME]’).

3 The tenant, [APPELLANT], applied to the landlord, the Council, through [COMPANY] to buy the freehold interest in [NAME] under 'right to buy' legislation.

4 By operation of law, Mr [APPELLANT] succeeded to the tenancy of [NAME] in 2015

following the death of his father who had entered into a secure tenancy agreement with

the Council dated 4 April 2006.

5 The landlord replied by counter notice, Form RTB2 dated 15 January 2019, which was served on the tenant by [COMPANY] denying the right to buy because it considered [NAME] particularly suitable for occupation by [NAME]. The Notice advised that the qualifying conditions for denial had been met as [NAME] had been first let before 1 January 1990 and routinely let for occupation by a [NAME] or someone with an identified medical need for this type of accommodation.

6 Mr [APPELLANT] made an application to the Tribunal dated 19 January 2019, which was received by the Tribunal on 21 January 2019, (‘the Application’), for a determination by the Tribunal as to whether the grounds in paragraph 11 had been satisfied.

7 The Tribunal sent a copy of the Application to [COMPANY] on 25 January 2019.

8 Directions were issued by the Regional Judge on 11 February 2019 which were concerned, principally, with the processes associated with the preparation and submission of statements of case and related documents.

9 Statements of case were submitted by the Applicant and on behalf the Council in due course. The latter was written by Mr [COUNSEL], Solicitor, Bolsover District Council (‘Mr [COUNSEL]).

10 A Hearing was not requested by any of the parties.

Relevant Law

11 The material parts of paragraph 11 of Schedule 5 of the 1985 Act are as follows:

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

(a) is particularly suitable, having regard to its location, size, design, heating

system and other features, for occupation by [NAME], and

3

(b) was let to the tenant or a predecessor in title of his for occupation by a

person who was [NAME] 60 or [NAME] (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…

(6) This paragraph does not apply unless the dwelling-house concerned was first let

before 1st January 1990.

12 ODPM Circular 7/2004 (Right to Buy: Exclusion of [NAME]' Housing) (‘the Circular’), which was issued by the Office of the Deputy Prime Minister, gives guidance on the main criteria to be taken into account in determining the suitability of a dwelling- house for occupation by [NAME]. Such determinations were to be made by the Secretary of State. However on 1 April 2005, such jurisdiction was transferred to ‘the appropriate tribunal or authority’ under section 181 of the Housing Act 2004, which, presently, is this Tribunal. In anticipation of this transfer, the Circular states that ‘the criteria set out in this circular will not be binding on the [appropriate tribunal or authority] but they will be guided by them in general terms’. Importantly, the Circular adds that each case will be decided on its own merits.

The following paragraphs of the Circular are particularly apposite to the determination by the Tribunal of this Application:

Particular suitability for occupation by [NAME]

“12. The main points on which the Secretary of State will normally expect to be satisfied in considering applications under paragraph 11 – as well as other features to which his attention is drawn – are as follows:

(a) there should be easy access on foot to the dwelling. In assessing ease of access, consideration should be given to:

- the number and size (in particular, the height) and curvature of any steps up to the dwelling itself, and also of any steps in its immediate vicinity where these must be negotiated to gain access to it; - the presence or absence of handrails, or other means of support, alongside any steps up to the dwelling and in its immediate vicinity that need to be negotiated to gain access to it; - the gradient of ramps, paths, pavements or other means of access to the dwelling and in its immediate vicinity, where these must be negotiated to gain access to it.

In general, access is unlikely to be regarded as easy if it is necessary to climb three or

[NAME] steps (in addition to the threshold) and there is no handrail;

(b) the accommodation should normally be on one level. The Secretary of State is unlikely

to regard a dwelling with two or [NAME] floors as being particularly suitable for occupation

by an [NAME]. However, he may be prepared to make exceptions for dwellings

with up to three internal steps, or with stairlifts or similar devices provided by the

landlord;

(c)…

4

(d) there should be no [NAME] than two bedrooms, designated as such in the tenancy

agreement;

(e) there should be heating arrangements which:

• function reliably

⦁ provide heat to at least the living room and one bedroom

• may safely be left on overnight;

(f) the dwelling should be located reasonably conveniently for [NAME] and public transport,

having regard to the nature of the area (the Secretary of State may take into account

reliable means of transport other than those provided by public bodies – for instance,

transport provided by [NAME] or voluntary organisations):

- in an urban area, the dwelling should be located no [NAME] than 800 metres (half a mile) from both the nearest shop selling basic food items and the nearest public transport stop. ‘Basic food items’ include bread and milk; - in a rural area, the dwelling should be located no [NAME] than 800 metres (half a mile) from the nearest public transport stop, and such transport should be available from this point frequently enough to provide at least three opportunities for shopping each week.

Letting test

18…It is important to reiterate 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 [NAME] 60 or [NAME]’. The Secretary of State takes the

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 [NAME] of joint tenants, was [NAME] 60 or [NAME];

or

• that the dwelling was to be occupied by some other person known by the landlord to be

[NAME] 60 or [NAME].”

[NAME]

13 The Tribunal inspected [NAME], internally and externally, during the morning of 18 April 2019 in the presence of Mr [APPELLANT] and [NAME].

14 [NAME] is a traditionally constructed semi-detached bungalow located within Pineview, a discrete development which comprises around 40 semi-detached properties all of which are similar in structure and design. It is situate on a flat and level site.

[NAME] offers the following accommodation and benefits from upvc double glazing and gas fired central heating:

Hall

Lounge

Kitchen

2 bedrooms (double)

Bathroom comprising a wet room, shower, wash hand basin and low flush WC.

5

[NAME] has a small rear garden which is enclosed by mature and fairly dense hedges. There are footpaths leading from a side entrance to the back door and to a gate to the rear of the garden which gives access to a pedestrian right of way and, thence, to a housing estate which borders Pineview. In addition, there are two brick outbuildings which are proximate to and face the back door. Otherwise, the garden is laid, principally, to lawn. This garden would be easy to maintain.

15 The front of [NAME] is approached over a footpath which passes through an open plan communal lawn on either side. There is no front garden.

16 There is no step to either the front or the rear door of [NAME]. All the footpaths which provide access to and egress from [NAME] are level and easy to navigate.

17 Car parking is available within walking distance of [NAME] in an open tarmacadam car parking area within Pineview which is bordered by bungalows on each of its four sides. However, there is no designated car parking in this car parking area either for [NAME] or any of the other bungalows on Pineview. There are no significant gradients in the car parking area.

18 During a partial inspection of Pineview immediately after the inspection of [NAME], the Tribunal noted that upvc windows had been installed in each of the bungalows it observed during this inspection and it was apparent that a fair number of those bungalows were unoccupied. The Tribunal also observed an industrial area adjacent to Pineview. However, the Tribunal detected only a very low level of noise emanating from this area.

19 A Nisa Local and Post Office are situated nearby in [ADDRESS] and are approximately 600 metres and 500 metres respectively from [NAME]. [NAME] is within easy walking distance of bus stops on [ADDRESS] that provide ready access to the surrounding area and, in particular, to amenities available within or proximate to the town centre of Clay Cross including a pharmacy, [COMPANY] and supermarkets.

Submissions

The Applicant

20 Mr [APPELLANT] strongly disagreed with the proposition that [NAME] was particularly suitable for occupation by [NAME]. He cited the following reasons in support of his objection which were set out either in the Application or in his statement of case.

Location

Mr [APPELLANT] described [NAME] as ‘a bit out of the way’. He said that it was about three miles to the local [NAME]. Further, Mr [APPELLANT] drew the attention of the Tribunal to the proximity of Pineview to what he described as a nearby industrial area which could be noisy, especially at night, and would, in his opinion, be a disturbance to most [NAME]. To his knowledge, one tenant had left Pineview because of the noise from the industrial area. Mr [APPELLANT] also believed that ‘getting out and about’ from Pineview would be difficult for some.

Parking

Mr [APPELLANT] stated that [NAME] lacks ‘car parking outside by means of a drive’, and that as [NAME] is set back from the road by about 100 metres there is no scope for creating a drive. Further, whilst there is a communal parking area this is sufficient only to

6 accommodate car parking for less than half of the 40 properties on Pineview. Mr [APPELLANT] also opined that, presently, Pineview has ‘only a handful of properties let to tenants’ and he estimated that there were ‘twenty odd bungalows empty out of forty’. Consequently, this meant car parking might be available but ‘a good distance’ away from [NAME]. Mr [APPELLANT] suggested that this car parking provision could be problematic for persons with limited mobility.

Lack of privacy and security

Mr [APPELLANT] stated that Pineview has ‘many entrances and is wide open’ with at least seven points of entry and this has provided the opportunity for many criminal acts and vandalism. He intimated that tenants had moved away from Pineview because they did not feel safe.

Mr [APPELLANT] said that [NAME] is ‘wide open with no fence and a hedge that is falling apart’ and that the rear of [NAME] backs onto a housing estate.

Regeneration and disturbance

Mr [APPELLANT] informed the Tribunal that regeneration of the bungalows located in Pineview had been taking place for five years and that many ‘older people’ had moved away from Pineview because of the disturbance caused by this regeneration. He indicated that the main aspect of the regeneration which would involve properties being replaced had not started, and that, therefore, the regeneration could take years to complete.

[NAME] Respondent - the Council

21 Mr [RESPONDENT] opened the statement of case, which he submitted on behalf of the [NAME] Respondent (hereafter, for ease of reference, the Council), with the statement that it was strongly asserted that ‘[NAME] is, and remains, particularly suitable for occupation by [NAME].’

Thereafter, Mr [NAME] sought to verify this by placing reliance on what he described as the reasons for this assertion and a summary of the relevant facts referring, where appropriate, to pertinent paragraphs and sub-paragraphs of the Circular. In this respect, Mr [NAME], initially, made the following points in relation to each of the above-cited sub- paragraphs of paragraph 12 of the Circular:

“Ease of Access

The premises is accessed from the highway by means of a footpath. The gradient is level, making it suitable for access by those with mobility difficulties and/or in need of assistance, e.g. by way of a walking frame or stick. The short distance from the highway to [NAME] also lends itself to those with need of easy access. [NAME] benefits from level access at the entrance. These features are consistent with easy access in accordance with the Circular at paragraph 12(a).

Levels of [NAME]

[NAME] is a single storey bungalow. This meets the requirements of the Circular in paragraph 12(b).

[NAME] has two bedrooms, again consistent with suitability for [NAME] in accordance with paragraph 12(d) of the Circular.

7

[NAME] enjoys the benefit of a reliable central heating system throughout, again consistent with suitability for [NAME] in accordance with paragraph 12(e) of the Circular.

[NAME] is located 0.2 miles from local convenience stores. Public transport stops on [ADDRESS] are even closer. Therefore the criteria is met in paragraph 12(f) of the Circular.

There are no adverse gradients on the route between [NAME] and the nearest convenience store or public transport stops.”

22 Mr [NAME] also drew the Tribunal’s attention to ‘other features’ of [NAME]. First, he stated that [NAME] benefitted from an adapted wet room. This had been installed in 2013 following an upgrade to the bathroom as part of [COMPANY] works. Secondly, he informed the Tribunal that [NAME] is located in an area scheduled to benefit from significant planned regeneration works, some of which had already begun, including:

- new windows were fitted to [NAME] in 2018; - the estate will receive full roof replacements and upgrading to individual plots in order to provide level access parking and enclosed rear gardens; and - the number of access paths to the estate will be reduced in order to reduce the footfall from neighbouring estates into this [NAME] community. Street lighting will be upgraded.

Further, Mr [NAME] referred the Tribunal to the following website where further details about the regeneration works may be found, namely https://www.rykneldhomes.org.uk/regeneration/[NAME]-improvements/pine-view- regeneration/.

23 Finally, Mr [NAME] submitted that the criteria in paragraph 18 of the Circular were met when [NAME] was let by the Council to Mr [APPELLANT]’s father in 2006 at which time he satisfied the restricted age criterion of being [NAME] 60 or [NAME]. Mr [APPELLANT] added that Mr [APPELLANT] succeeded to the tenancy of [NAME] in 2015 by operation of law upon the death of his father and not through any decision to relax the restricted age criterion. Mr [NAME] also intimated that to the best of the Council’s knowledge [NAME] had been previously let solely with a specific designation that it was suitable for [NAME]. [NAME] generally, Mr [NAME] informed the Tribunal that during 2018 that the bids received by the Council for properties on Pineview averaged 25 per month and that the Council does not have any difficulty in re-letting properties on Pineview to individuals who meet the relevant age criteria.

Determination

24 At the outset, the Tribunal considered the evidence relating to whether [NAME] is particularly suitable for occupation by [NAME], having regard to its location, size, design, heating system and any other features to which the Tribunal’s attention may be drawn (‘the suitability test’).

25 In this respect, ‘[NAME]’ does not mean persons who are frail or severely disabled; provision is made in other paragraphs of Schedule 5 to the Act to exclude dwelling houses for such persons from the right to buy legislation. Consequently, the Tribunal is required

8 to examine suitability from the perspective of an [NAME] who can live independently (see, paragraph 11 0f the Circular) and not from one which imputes a degree of immobility or other impediment to that [NAME]. The personal circumstances of the Applicant are not to be taken into account.

26 In the recent Upper Tribunal decision in Milton Keynes Council v Bailey [2018] UKUT 207 (LC), Mr [NAME] in considering the exception to the right to buy under paragraph 11 of Schedule 5 to the 1985 Act observed:

“[25] I accept the Council’s submission that the characteristics of [NAME] must be assessed in the aggregate, and not looked at individually. The question in a case such as this is whether [NAME] is particularly suitable. Some features may tend in one direction, whilst others point the other way. Some features may be so significant in themselves that they make [NAME] positively unsuitable (for example that it could only be reached by a very steep staircase). But what is required is an assessment of the whole.”

27 In relation to this Application, it is necessary for the Tribunal, when assessing [NAME] as a whole with a view to determining whether it is particularly suitable for occupation by [NAME], to have regard to the satisfaction (or otherwise) of the specific criteria in the pertinent sub-paragraphs of paragraph 12 of the Circular (see above, paragraph 11) and also to ‘other features’ to which its attention is drawn.

In the former respect, the Tribunal is persuaded by the evidence adduced by Mr [NAME] on behalf of the Council and the outcome of its inspection of [NAME] and its environs that the specific criteria set out in those sub-paragraphs of paragraph 12 of the Circular by way of guidance on suitability for occupation by [NAME] are met. In short, there is easy access to [NAME] on foot and it is situate on a flat and level site on one level with two bedrooms. It benefits from a gas fired central heating system which, from enquiries made at the Tribunal’s inspection, appears to function reliably and to provide overnight heating if required, and also double glazing. Further, [NAME] is in a convenient location with local amenities reasonably near to hand.

The Tribunal is also satisfied that the upgraded bathroom (including the wet room) is a characteristic of [NAME] which, similarly, fosters its particular suitability for occupation by [NAME].

On the other hand, the Tribunal does not find the ‘other features’ or factors upon which the Applicant relied to challenge the suitability of [NAME] for occupation by [NAME] to be compelling. Each of those factors (the level of noise pollution from the industrial area, the inadequacy of the provision for car parking, lack of privacy and security, and disturbance related to the regeneration of Pineview) may be concerns and some are acknowledged by Mr [NAME] and addressed in the Regeneration literature prepared by the Council. However, they are material to the question of whether or not an individual may be willing to enter into a tenancy of [NAME] (or, indeed, other bungalows on Pineview) rather than to the determination of whether [NAME] per se is particularly suitable for occupation by [NAME].

In light of the above, the Tribunal finds that [NAME] is particularly suitable for occupation by [NAME].

28 As to the so-called ‘letting test’, namely whether [NAME] was let ‘to the tenant or a predecessor in title of his for occupation by a person who was [NAME] 60 or [NAME]’, the Tribunal had regard, in particular, to the most compelling evidence. This was presented by the Council or on its behalf by Mr [NAME]. Thus, the Council, in Form RTB2, averred that [NAME] had been first let before 1 January 1990 and routinely let for occupation

9 by a [NAME] or someone with an identified medical need for this type of accommodation whilst Mr [APPELLANT] intimated that Mr [APPELLANT]’s father met the restricted age criterion of being [NAME] 60 or [NAME] when [NAME] was let to him in 2006, and that, prior to the Applicant’s tenancy by way of succession, [NAME] had to the best of the Council’s knowledge always been let with a specific designation that it was suitable for [NAME]. The Applicant did not adduce any evidence pertaining to the letting test and did not challenge the evidence submitted by the Council, especially the evidence which was within his knowledge, namely the age of his father at the time when the tenancy of [NAME] was granted to him in 2006. In these circumstances, the Tribunal finds that the letting test is satisfied.

29 Accordingly, the Tribunal determines that the Council is entitled to rely on the exception to the right to buy contained within paragraph 11 of Schedule 5 to the Act and, thereby, to deny the Applicant of the right to buy [NAME].

Judge David R Salter

31 May 2019

Appeal to the Upper Tribunal

30 If any party is dissatisfied with this decision they may apply to this Tribunal for permission to appeal to the Upper Tribunal (Lands Chamber). Any such appeal must be received within 28 days after these written reasons have been sent to the parties (Rule 52 of the Tribunal Procedure (First-tier Tribunal) ([NAME] Chamber) Rules 2013.

31 If the party wishing to appeal does not comply with the 28-day time limit, the party shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

32 The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal and state the result the party making the application is seeking.