First-tier Tribunal Rejects Right to Buy for Elderly-Friendly Property

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : MAN/OODB/RTB/2020/0004 Property : 7 [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 : 8th June 2021 Date of Decision : 7th July 2021

DECISION

Decision

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

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 Applicant his Right to [NAME].

Application

4. Mr [APPELLANT] (“the Applicant”) gave notice to [NAME] “the Respondent”) of his wish to buy [ADDRESS], Netherton, Wakefield (“[NAME]”), pursuant to the Act.

5. The Respondent subsequently served a notice dated 3rd July 2020 under section 124 of the Act, denying the Applicant his Right to Buy stating that [NAME] was particularly suitable for occupation by an elderly person as provided for in Paragraph 11, Schedule 5 of the Act.

6. By an application received on 24th July 2020 the Applicant applied to the Tribunal under paragraph 11(4) of the Act for a determination as to whether the grounds contained within Paragraph 11 were satisfied.

7. The Respondent confirmed its intention to oppose the appeal.

8. A Case Management Conference took place on 14th April 2021 to provide for the future conduct of the application. [NAME]

9. The Tribunal undertook an external inspection on 8th June 2021 without either party being present. The parties agreed to proceed upon this basis and without the need for an internal inspection due to the restrictions imposed by the COVID-19 pandemic. 10. [NAME] is a brick built, two-bedroomed semi-detached bungalow, having gardens to both the front and rear. It is within an area of similar properties. 11. [NAME] has gas central heating and there were no representations to suggest it did not function reliably and could not be left on at night.

12. Access to [NAME] is from a path running from the pavement to both the front and side of [NAME]. The path is level. There is one step into the porch and a further step into [NAME]. There are no handrails, but there is a grab handle at the entrance to the porch. 13. [NAME] is approximately 0.43 miles to the [NAME] the basic food items. It is 0.11 miles to the nearest bus stop. The Applicant advised it is 5 miles to Wakefield and the supermarket is 3 miles distant.

14. The route to the local shop is on a slight gradient.

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 elderly person, and (b) was let to the Tenant or a predecessor in title of his for occupation by a person who is aged 60 years 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 elderly person as provided for within the Act.

17. The Circular states that when considering this, “elderly persons 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. • There should be heating that is reliable and can be safely left on overnight • [NAME] should be located conveniently for [NAME] and [NAME]. 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 [NAME] shop that provides at least three opportunities for shopping each week.

Representations 19. The Applicant made detailed written representations explaining that he is disabled and relies upon a mobility scooter to get to the [NAME]. He confirmed the Respondent had now changed their policy regarding the letting of bungalows and they were now available to anyone over the age of 21 years. He further stated that although it was said [NAME] was suitable for elderly persons, similar bungalows in the immediate vicinity had been sold.

20. There had been a doctor’s surgery next door to [NAME] but that was now closed and the site was being redeveloped.

21. The Applicant confirmed he had been given his tenancy on 24th September 2012 when he was 60 years of age.

22. The Respondent confirmed [NAME] meets all the requirements set out in Schedule 5 of the Act and that it is “ideal” for “elderly/disabled persons”. Further, the Respondent needs to retain ownership of such properties in order to meet the demand for the type of property. Determination 23. 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 Applicant when he was over the age of 6o years. Consequently, the requirement that [NAME] is let to someone over the age of 60 years is met. 24. [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.

25. Access to [NAME] is not difficult for a person over the age of 60 years 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 level. The rear door has no more than two steps 26. 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 the criteria. 27. [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 Wakefield.

28. The Tribunal did not consider the route to the bus stop to be unsuitable for a person over the age of 60.

29. The Tribunal took note of the Applicant’s reliability upon a mobility scooter, but the Act (with the Circular) only requires a property to be suitable for “elderly persons” The Circular continues: “In this connection “elderly persons” will be taken to mean individuals who are able to live independently despite some limitations owing (sic) to age. It will not mean individuals who are frail or severely disabled.” 30. The Tribunal considered the issue of age discrimination. It accepted the Applicant’s submissions that he was aware of similar properties let to tenants under the age of 60. The Act does not exclude tenants under the age of 60 from buying their property even if that property may be suitable for occupation by an elderly person. At the commencement of the Applicant’s tenancy [NAME] was let on the basis it was suitable for a person over 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.

31. The Tribunal considered The Equality Act 2010 and noted that under Schedule 22 of the Act there is specific provision relating to age discrimination that prevents its 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.

32. 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.

33. 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 elderly persons within its area.

34. 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 elderly person and consequently the Applicant does not have the Right to Buy.

Tribunal Judge J Oliver 8 June 2021