First-tier Tribunal Rules Property Excluded from Right to Buy for Elderly Suitability

OUTCOME: Dismissed

© CROWN COPYRIGHT

Case Reference : BIR/00FN/RTB/2024/0002

[NAME]

: 20 [ADDRESS] [POSTCODE]

Applicants : [redacted]

Respondent : [redacted]

Type of Application : An application under paragraph 11 of Schedule 5 to the Housing Act 1985. (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] – [NAME]

Date of Decision : 11 December 2024

___________________________________________________________

DECISION ______________________________________________________

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

Page 2 of 7 Introduction

1. This is decision in respect of an application to the First – tier Tribunal [NAME] Chamber ([NAME]) (“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 elderly persons and let to the tenant for occupation by a person aged 60 or more – applies to [NAME] which is the subject of this application.

Background

2. The Tenants, [NAME] & [NAME] (“the Applicants”), by notice applied to Leicester City Council (“the Respondent”) to buy 20 [ADDRESS] [POSTCODE] (“[NAME]”) under the Right to Buy provisions contained in the Act.

3. By way of an RTB2 Form – Notice in Reply to Tenant’s Right to Buy Claim, the Respondent served notice on the Applicants denying the right of the Applicants to buy [NAME] as in their opinion, paragraph 11 of Schedule 5 to the Housing Act 1985 applies. This form was dated 7 May 2024.

4. By an application received on 2 July 2024, the Applicants 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.

5. 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 the

Page 3 of 7 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.

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

7. The Applicants had indicated that they were content with a paper determination in this matter. The Respondent did not request an oral hearing; accordingly, the Tribunal determines this matter on the basis of its own inspection of [NAME] and the written submissions of the parties.

[NAME] 8. The Tribunal inspected [NAME] on 3 December 2024 in the presence of two of the Applicants [NAME] and [NAME] who were assisted by Mrs [COUNSEL], a neighbour. A representative of the Respondent did not attend.

9. [NAME] comprises a ground floor flat offering the following accommodation, which benefits from double glazing and gas fired central heating:

Hall Lounge Kitchen Double Bedroom Bathroom with suite comprising panelled bath, wash hand basin, and low flush WC. Various store cupboards.

10. There is level access to [NAME] from the footpath.

11. The step into the front door is 12 cm (excluding the door frame).

12. [NAME] is one of a block of four flats formed in a rectangle of similar blocks arranged around a central communal garden area.

Page 4 of 7 13. There is no dedicated car parking for [NAME] however there is a Residents car park adjacent to the development.

14. The development lies immediately to the south of the A47 [ADDRESS], one of the principle arterial routes into the city, approximately one mile to the east of the centre. A footpath allows easy access for the occupants of [NAME] onto [ADDRESS]. Within 400m of [NAME] there are numerous shops, a Medical centre, pharmacy and bus stops.

The Submissions of the parties

The Applicants

15. The only submissions made by the Applicants that are relevant to the Tribunal’s consideration of this matter is:

“[NAME] is situated in a block of council flats which were rented or tenant to people of all age and it is not for elderly people.”

16. The Applicants provided evidence that in 2017 the Respondent had agreed to sell a 125-year lease in respect of [NAME]. This is not something the Tribunal can take into account, the only matter it is concerned with is whether [NAME] is suitable for occupation by elderly persons.

The Respondent

17. The Respondent’s initially confirmed that [NAME] had been let since 1975 i.e. before 1 January 1990.

18. [NAME] was let to the first Applicant on 9 February 2004 when they were aged 60 years and 3 months.

19. The Respondent then dealt with the suitability of [NAME] for occupation by an elderly person and noted the following:

a) The front door of [NAME] is accessed via a paved path, from the footpath through the front garden. The path has almost no gradient and there are no steps along its course. b) [NAME] itself is entered by negotiating one threshold step (there is no back door to this [NAME]); c) [NAME] is arranged over one floor;

Page 5 of 7 d) [NAME] is a ground floor flat consisting of 1 bedroom, a kitchen, bathroom and living room; e) [NAME] has gas central heating which provides heating in all rooms and is timer-controlled, enabling it to be safely left on overnight. Servicing and maintenance of the heating system is undertaken by the Respondent, as landlord; f) [NAME] is located less than 200 metres from a [NAME], which sells a variety of food items; g) [NAME] has 3 bus stops located within 400 metres of it; h) [NAME] is located less than 400 metres of a [COMPANY]. The Respondent concludes by stating that in their opinion, [NAME] meets all of the criteria set out in ODPM Circular 07/2004. Further, it was first let prior to 1 January 1990 and the 1st Applicant was over the age of 60 when his tenancy commenced.

The Law

21. 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:

(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)

22. [NAME] is a ground floor flat.

Page 6 of 7 23. [NAME] benefits from a gas fired heating system which, from the information provided, appears to function correctly and provide overnight heating if required.

24. The immediate area around the subject [NAME] is of a gradient reasonable from the viewpoint of an elderly person who can live independently and is not frail or disabled.

25. There is car parking available outside [NAME].

26. The alleyway that runs adjacent to [NAME] allows a pedestrian route to [ADDRESS] where there is a shop selling basic food items and a bus stop at the distances stated by the Respondent.

27. [NAME] was first let before 1990.

28. The Lettings Test was satisfied as the Tenant was aged over 60 on occupation.

Determination by the Tribunal

29. The issue concerning whether or not other properties on the same development were first let to persons aged under 60 is not a factor for the Tribunal to take in account. The Tribunal’s considerations relate solely to the subject [NAME] and whether it is particularly suitable, having regard to its location, size, design, heating system and other features, for occupation by elderly persons.

30. 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 Applicants are not to be taken into account.

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

Page 7 of 7 32. The Tribunal considers that, when assessing it as a whole, [NAME] is particularly suitable for occupation by an elderly person who can live independently and noted the proximity of the shops and facilities as identified by the Respondent and the Tribunal’s own research.

33. 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 Applicants does not have the right to purchase [NAME].

34. 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

35. 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