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

FIRST TIER TRIBUNAL PROPERTY CHAMBER RESIDENTIAL PROPERTY

Case reference : CAM/22UN/RTB/2025/0003 Property : 29 [ADDRESS], [POSTCODE] Applicant: [redacted] Respondent : [redacted] Type of [NAME]

: Refusal of Right to Buy - Paragraph 11 of Schedule 5 of the Housing Act 1985 (as amended) (“the Act”).

Date of Decision

Tribunal :

26 August 2025

[NAME] Dr [NAME]

______________________________________

DECISION _________________________________

The [NAME] is refused, and the Tribunal determines that the Applicant is not entitled to purchase the subject property under the provisions of Paragraph 11 of Schedule 5 to the Housing Act 1985.

REASONS FOR DECISION

The [NAME]

1. Mrs [APPELLANT] (‘the Applicant’) of 29 [ADDRESS], [POSTCODE] (‘the Property’) is the joint tenant of Tendring District Council (‘the Respondent’) with Mr [NAME] [APPELLANT].

2. The Applicant made an [NAME] to the Respondent under the Right to Buy legislation in the Housing Act 1985 (‘the Act’) to buy the Property and, on 24 December 2024, the Respondent replied with a counter notice denying the right to buy by virtue of the provisions of paragraph 11 of Schedule 5 to the Act.

3. The Applicant made an [NAME] to the Tribunal on 20 January 2025 for a determination as to whether the Property is suitable for occupation by elderly persons.

4. The applicant requested a hearing which was held in the afternoon of 20 August 2025.

The Law

5. The relevant provisions in respect of jurisdiction of the Tribunal are found in Paragraph 11 of Schedule 5 to the Housing Act 1985.

Housing Act 1985

“11 (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 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. …

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

6. Circular 7/2004, Right to Buy: (Exclusion of Elderly Persons’ Housing) issued by the Office of the Deputy Prime Minister, gives guidance on the main criteria to be taken into account in determining whether a dwelling is particularly suitable for occupation by elderly persons. The criteria are not binding on the Tribunal, but the Tribunal will be guided by them in general terms. Each case is to be decided on its own merits.

7. Particular suitability for occupation by elderly persons

“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 more 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 more floors as being particularly suitable for occupation by an elderly person. 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)…

(d) there should be no more 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 shops 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 shops or voluntary organisations):

- in an urban area, the dwelling should be located no more 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 more 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.

8. Letting test

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 aged 60 or

more’. 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 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.”

The Property

9. The Tribunal inspected the Property, internally and externally, during the morning of 20 August 2025 accompanied by the Applicant.

10. The Property is a purpose built two bedroomed ground floor flat in a two- storey block of 4 flats. 11. The Property has the following accommodation

Hall Lounge Kitchen 2 bedrooms Bathroom/wet room comprising a shower, wash hand basin and WC.

The property has UPVC windows, and a gas central heating system

12. Access to the house is via a level path from the public highway. There are two shallow steps leading to the front door and the same to the rear door

13. There is a garden to the rear of the property. There is also a garage to the rear.

14. There are bus stops within 400 metres, with services to local towns and villages including Colchester and Harwich. There is a convenience store, a post office and a [COMPANY] less than 200 metres from the Property.

The Applicant’s case

15. In their written submission the Applicants confirmed the accommodation details. They said that the shower room had been installed for the previous tenant but that this was not entirely suitable for the current tenant due to chronic back pain.

16. They had been advised that due to COVID all housing offers were in hold. This had delayed the start of their tenancy agreement, which they could potentially have commenced before Mr [APPELLANT] was 60.

17. At the hearing Mrs [APPELLANT] said that they had applied for the tenancy as a family and did not realise that it was a disabled property. They thought that they could buy it via the [NAME].

18. She said that neighbours had bought similar properties via the scheme.

The Respondent’s case

19. In their written submission the Respondent stated that they intended to oppose the appeal. The property was, on a holistic and objective assessment, considered to be particularly suitable for the elderly.

20. The property was first let before 1 January 1990 and the current tenancy was granted on 25 October 2021 to Mr and Mrs [APPELLANT]. At that date Mr [APPELLANT] was aged 60 years and 3 months.

21. The property was a two bedroomed ground floor flat. The accommodation, being on one level was suitable for elderly persons who may have or develop mobility issues and wish to live independently. The applicant had confirmed the suitability for such needs in their appeal form.

22. The installation of the shower room indicated that the property lent itself to modification for occupants with needs commonly associated with age.

23. The property had full gas central heating which was a key feature of suitability noted in the statutory test.

24. Access to the front and back was via low thresholds. The size was modest meaning it was easy to clean, maintain and heat.

25. The property was situated in a quiet residential road comprising similar properties and fostered a peaceful community atmosphere with nearby residents in a similar age group.

26. It had reasonable proximity to local amenities in Lawford/Manningtree and was served by local transport links. The area was level and walkable. There was a convenience food shop and Post Office 453 feet away.

27. The property was first let before 1 January 1990 – evidenced by means of a copy of an offer to a tenant in June 1965.

28. The suggestion by the Applicants that the commencement of their tenancy agreement was delayed by COVID was irrelevant. The statutory test in Paragraph 11(1)(b) was a test of fact and the tribunal did not have a general equitable jurisdiction to disapply the statute on the perceived fairness if the circumstances which lead to the granting of the tenancy.

29. At the hearing, Mr [COUNSEL], counsel for the Respondent said that their evidence was as the statement of case, which he had drafted.

30. He asked Mrs [APPELLANT] whether she accepted that the property was first let before January 1990 and that Mr [APPELLANT] was over 60 when they took up the tenancy – which Mrs [APPELLANT] confirmed.

31. He also asked if the property was gas centrally heated, easily navigable, manageable in size, and on a quiet residential road with a [NAME], all of which Mrs [APPELLANT] confirmed.

Determination

32. The Tribunal considered the evidence relating to whether the Property is particularly suitable for occupation by elderly persons, having regard to its location, size, design, heating system and any other features to which the Tribunal’s attention were drawn.

33. In this respect, ‘elderly persons’ 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 to examine suitability from the perspective of an elderly person who can live independently (Paragraph 11 0f the Circular 7/2004 referred to above) and not from one where there is a degree of immobility or other impediment to that elderly person. The personal circumstances of the Applicant are not to be taken into account.

34. The Tribunal is persuaded by the evidence on behalf of the landlord and the outcome of its inspection of the Property and its location and surroundings that the Property is particularly suitable for occupation by elderly persons, having regard to the criteria detailed in paragraph 11(1)(a) of Schedule 5 to the Act

35. In short, there is easy access to the Property on foot and it is situated on a flat and level site, it is on one level with two bedrooms. It benefits from a central heating system and has double glazing.

36. Further, the Property is in a reasonably convenient location with local amenities within the distance set out in paragraph 7(f) above.

37. Considering the above, the Tribunal finds that the Property is particularly suitable for occupation by elderly persons.

38. As to whether the Property was let ‘to the tenant or a predecessor in title of his for occupation by a person who was aged 60 or more’, the Tribunal had regard to the evidence presented by the landlord. The tenant agreed that Mr [APPELLANT] was over 60 when they took up the tenancy.

39. In its Statement of Case, the Council also provided evidence that the Property had been first let before 1 January 1990.

40. The Applicant did not challenge the evidence submitted by the Council in this respect.

41. The Tribunal agrees with the Council that we do not have any discretion in this matter. The question is – was the property let to the tenant or a predecessor in title of his for occupation by a person who was aged 60 or more – and the answer is that it was.

42. In these circumstances, the Tribunal finds that the letting test is also satisfied.

43. The Tribunal understands that the tenants will be disappointed and that it may seem inconsistent that others have bought when they cannot. However, the Tribunal are not party to the facts of other sales, and even if they were, could not have regard to what may have happened. We can only apply the legislation in this matter.

44. It determines, for the reasons set out above, 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 the right to buy the Property.

© CROWN COPYRIGHT

ANNEX - RIGHTS OF APPEAL

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The [NAME] for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

3. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

4. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property, and the case number), state the grounds of appeal, and state the result the party [NAME] the [NAME] is seeking.