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

OUTCOME: Dismissed

1

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/OODB/RTB/2019/0006 Property : 4 [ADDRESS], [POSTCODE] Applicant: [redacted] : In person Respondent : [redacted] : [COUNSEL], Type of Application : Housing Act 1985, Schedule 5, Paragraph 11-Right to Buy Tribunal Members : Judge [NAME] (Valuer) Date of Determination : 29th May 2019 Date of Decision : 3rd June 2019

DECISION

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2 Decision

1. [NAME] is particularly suitable for occupation by [NAME].

2. The requirements of Paragraph 11, Schedule 5 of the Housing Act 1985 (“the Act”) as to the date of the first letting and the age of the tenants are met as are the characteristics of [NAME] regarding the accommodation and location.

3. The Respondent is entitled to rely upon Paragraph 11, Schedule 5 of the Act to deny the Applicants their Right to [NAME].

Application

4. [APPELLANT] and [NAME] (“the Applicants”) gave notice to [NAME] (“the Respondent”) of their wish to buy [ADDRESS], Kirkthorpe, Wakefield (“[NAME]”), pursuant to the Act.

5. The Respondent subsequently served a notice dated 18th January 2019, [NAME] section 124 of the Act, denying the Applicants their Right to Buy stating that [NAME] was particularly suitable for occupation by an [NAME] as provided for in Paragraph 11, Schedule 5 of the Act.

6. By an application received on 20th February 2019 the Applicants applied to the Tribunal [NAME] paragraph 11(4) of the Act for a determination as to whether the grounds contained within Paragraph 11 were satisfied.

7. The Respondent confirmed their intention to oppose the appeal. [NAME]

8. The Tribunal inspected [NAME] on 29th May 2019 in the presence of the Applicants and their daughter. The Respondent was not represented. 9. [NAME] is a brick built, semi-detached bungalow, having large gardens to both the front and rear. It is within an area of similar properties. 10. [NAME] has 1 double bedroom, kitchen, wet room and living room and has the benefit of double-glazing. The Applicants had replaced the original bathroom with the wet room. 11. [NAME] has gas central heating. The Applicants confirmed it operates reliably and could be safely left on at night, should this be required.

12. Access to [NAME] is from a path running from the pavement to both the front and side of [NAME]. The path is on a gentle gradient although there are no handrails. The entrance to the front door is via decking and a door installed by the Applicants. There is one step from the path to the decking measuring approximately 8 inches and the

3 entrance to the front door is then by a further step measuring approximately 6 inches. Access to the side (rear) door is by two steps, the lower one being approximately 8 inches and the upper step measuring approximately 7 inches. There are no handrails at either entrance. 13. [NAME] is approximately 20 yards from a recently opened convenience store selling sandwiches and basic food items, including bread and milk. If this store was not open then the nearest shop to sell food would be either in Normanton, a distance of 2.16 miles from [NAME], or in Wakefield a distance of 4.45 miles away. There are two bus stops, both approximately 100 yards from [NAME] travelling to both Normanton and Wakefield. The Applicants confirmed the buses travel on a regular basis.

14. The route to the local shop is level. The Law

15. Paragraph 11 of Schedule 5 of the Act provides 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 an [NAME], and (b) was let to the Tenant or a predecessor in title of his for occupation by a person who is aged 60 [NAME] or more (whether the Tenant or a predecessor or another person).

16. The Circular from the Office of the Deputy Prime Minister dated December 2004 (ODPM Circular 07/2004) (“the Circular”) gives the criteria for establishing whether a dwelling house is particularly suitable for occupation by an [NAME] as provided for within the Act.

17. The Circular states that when considering this, “[NAME] will be taken to mean individuals who are able to live independently despite some limitations owing to age. It will not mean individuals who are frail or severely disabled”.

18. The Circular states the “main points” that should be considered are: • There should be easy access on foot to the dwelling. In general, access is unlikely to be considered as easy if it is necessary to climb 3 or more steps and there is no handrail. • The accommodation should be on one level • Where a flat is above ground level, there should be a lift. • There should be no more than two bedrooms.

4 • There should be heating that is reliable and can be safely left on overnight • [NAME] should be located conveniently for local shops and public transport. This, in an urban area, should be no more than 800 metres (half a mile) from the nearest shop selling basic food items, i.e. milk and bread. In a rural area, [NAME] should be no more than 800 metres from the nearest public transport shop that provides at least three opportunities for shopping each week. Representations 19. The Applicants made detailed written representations in their original application. They stated that although it was said [NAME] was suitable for [NAME], a similar bungalow in the immediate vicinity had been let to a [NAME] and had been sold.

20. The Respondent made no submissions, other than to confirm [NAME] meets all the requirements set out in Schedule 5 of the Act and that it is “ideal” for “[NAME]/disabled persons”. Further, the Respondent needs to retain ownership of such properties in order to meet the demand for the type of property. Determination 21. The Tribunal considered the requirements of the Act and found [NAME] fulfils the criteria in that it was first let before 1st January 1990. It was let to the Applicants when the eldest was [NAME] the age of 6o [NAME]. Consequently the requirement that [NAME] is let to someone [NAME] the age of 60 [NAME] is met. 22. [NAME] is on one level, has no more than two bedrooms, as specified by the Act and has a central heating system that operates satisfactorily and can be safely left on at night.

23. Access to [NAME] is not difficult for a [NAME] in reasonable health. Access to the front of [NAME] is by a path, on a gentle gradient and then two steps. The path leading to the rear of [NAME] is only slightly longer than to the front entrance and is, at that point, level. The rear door has two steps, neither of which are high.

24. The Circular in December 2004 suggests that access to a property is not easy if it has more than 3 steps and has no handrail. [NAME] does not fulfil this criteria. 25. [NAME] is within half a mile of a shop selling the basic food items, as set out in the Circular and also within walking distance of bus stops travelling to both Normanton and Wakefield. The Tribunal took note of the comments made by the Applicants, that the local store has had a chequered history and has previously closed on at least three occasions.

5 There are therefore periods when the Applicants have had no local access to basic food items. In such circumstances, [NAME] would fall outside the criteria set out within the Circular with regard to this particular matter. However, the Tribunal can only determine the position regarding the availability of a local store at the time of its inspection and determination. Consequently, it cannot take into account how long the recently opened store may remain viable.

26. The Tribunal did not consider the route to either of the bus stops to be unsuitable for a person [NAME] the age of 60. The routes to both are level.

27. The Tribunal considered the issue of age discrimination. It accepted the Applicants’ submissions that they were aware of an identical property sold or let to [NAME]. The Act does not exclude [NAME] from buying their property even if that property may be suitable for occupation by an [NAME]. At the commencement of the Applicants’ tenancy [NAME] was let on the basis it was suitable for a person [NAME] the age of 60. [NAME] is still designated as such by the Respondent. Consequently, [NAME] is still governed by the requirements of Paragraph 11, Schedule 5 of the Act.

28. The Tribunal considered The Equality Act 2010 and noted that [NAME] 22 of the Act there is specific provision relating to age discrimination that prevents it’s application if there is statutory provision for it. In this case the Act makes the provision for the refusal of a Right to Buy because of age.

29. In addition, the Tribunal also considered section 13 of the Equality Act 2010 that provides a more general right not to be discriminated against because of age. Section 13(2) provides that there is no discrimination if it can be shown by the Respondent that their refusal is a proportionate means of achieving a legitimate aim.

30. The Tribunal determined the Respondent’s refusal of the Applicants’ Right to Buy was proportionate in allowing them to maintain an adequate housing stock for [NAME] within its area.

31. The Tribunal considered the requirements of the Act and found that the criteria established by Schedule 5 Paragraph 11 were met such that [NAME] is particularly suitable for occupation by an [NAME] and consequently the Applicants do not have the Right to Buy.

Tribunal Judge Oliver 29 May 2019