Tenant's Right to Buy Denied Due to Property's Suitability for Elderly

OUTCOME: Dismissed

1

Case Reference : BIR/00CW/RTB/2020/0007

[NAME_1] : 101 Green Lanes, [COMPANY_6], [POSTCODE]

Applicant : [redacted]

Respondent : [redacted] under paragraph 11 of Schedule 5 to the Housing Act 1985 (as amended) for a determination as to whether a dwelling house is suitable for occupation by elderly persons

Tribunal Members : Judge M K Gandham

Mr D [NAME_5]

Date of Decision : 5th November 2020

_________________________________________________

DECISION _________________________________________________

© CROWN COPYRIGHT 2020

FIRST - TIER TRIBUNAL [NAME_1] CHAMBER ([NAME_1])

2 DECISION

1. The Tribunal determines that [COMPANY_6] can deny the Right to Buy by virtue of the provisions of paragraph 11 of Schedule 5 to the Housing Act 1985.

REASONS FOR DECISION

Background

2. [NAME_3] (‘the Applicant’) of 101 Green Lanes, [COMPANY_6], [POSTCODE] (‘[NAME_1]’) is the tenant of [COMPANY_6] (‘the Respondent’).

3. The Applicant made an application to the Respondent under the Right to Buy legislation in the Housing Act 1985 (‘the Act’) to buy [NAME_1] and, on 12th June 2020, the Respondent replied with a counter notice in Form RTB2 denying the right to buy by virtue of the provisions of paragraph 11 of Schedule 5 to the Act.

4. The Applicant made an application to the Tribunal on 4th July 2020 for a determination as to whether [NAME_1] is suitable for occupation by elderly persons.

5. Directions were issued by the Tribunal on 7th July 2020 and, in accordance with the same, the Respondent provided a Statement of Case and bundle on 29th July 2020. The Application form and accompanying documents formed the Applicant’s Statement of Case.

6. In accordance with the Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal – Amendment relating to Inspections by the First-Tier Tribunal [NAME_1] Chamber, dated 23rd June 2020, it was determined that the Tribunal would carry out an external inspection of [NAME_1].

7. As the Tribunal was not carrying out an inspection of the interior of [NAME_1], a Directions Order, dated 9th September 2020, requested the Applicant to provide photographs of the boiler and interior of each room, together with a statement confirming details of the heating system and any improvements carried out by the Applicant or any predecessor in title. In reply to that order, the Applicant provided two letters, a plan of [NAME_1] and photographs of the radiators, electric heater and boiler installed at [NAME_1].

8. Neither party requested an oral hearing and the Tribunal made its determination based on its inspection and the written submissions received from both parties.

3 The Law

9. 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

Schedule 5, paragraph 11

“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.”

The Inspection

10. The Tribunal carried out an external inspection of [NAME_1] on the morning of 9th October 2020. The Applicant was present and allowed the Tribunal access to the rear of [NAME_1] from the front garden via a side gate. The Respondent did not attend.

11. [NAME_1] is a two-bedroom, brick-built, semi-detached bungalow, in a row of eight similar properties on the corner of Green Lanes with [ADDRESS] in Bilston, [COMPANY_6]. [NAME_1] is accessed from Green Lanes via a shared driveway which is reasonably level. Externally, there is a small front garden and a fair sized rear garden.

12. The house is accessed via a porch to the side of [NAME_1]. To gain access to the porch, there is a small concrete ramp (with a gentle gradient) from the drive and a handrail by the porch door. Both the porch door and front door to [NAME_1] have a small threshold to gain access to the house.

13. A back door to [NAME_1] gives access to the rear garden from the house. There is a single, five-inch, brick and concrete step to the door and a further small threshold to gain access to the house. There is a large handrail located on the wall next to the door.

14. The nearest bus stops to [NAME_1] are situated on [ADDRESS], within 0.3 miles of [NAME_1], where buses are fairly frequent. The nearest store

4 selling food and drink is located on [ADDRESS], also within 0.3 miles of [NAME_1]. The paths to both the bus stops and the shop are fairly level and within six minutes’ walking distance from [NAME_1].

Submissions

The Applicant’s submissions

15. The Applicant had provided, with his Application Form to the Tribunal, a Response as to why he believed he had a right to buy [NAME_1]. He stated that he had resided in the [COMPANY_6] area since 2001. He stated that, between 2001 and 2005, he resided at 22 Hawthorn House. As that [NAME_1] was overcrowded, he stated that he had applied for a larger [NAME_1]. He then relocated to [ADDRESS]. He stated that, whilst residing there, he started experiencing difficulty navigating the stairs in the house due to early stages of arthritis in his joints. He confirmed that, at that time, he applied for a bungalow but was told he was not eligible because he was 47 years old.

16. Between 2012 and 2017, he stated that he resided at 76 Campion House, which was a two-bedroom apartment located on the sixth floor. He stated that in December 2012 his mother, who resided in sheltered accommodation at [ADDRESS], came to live with him due to problems she was encountering at her accommodation. He stated that, as he was located on the sixth floor and due to repeated elevator malfunctions, the apartment was not appropriate for him or his mother, so he repeatedly applied for a bungalow but was told that he was not eligible and that he should consider applying to other housing organisations or authorities.

17. He stated that [NAME_1] (101 Green Lanes) was never offered to him by [COMPANY_6] Authority, but by an MP. He also stated that [NAME_1] was given to him, for him to reside in, and that he was 52 years at the time. He stated that he was informed that [NAME_1] had not been given to his mother, who was 88 years old at the time, nor had it been given to him on the grounds that his mother would be residing with him. He stated that he was informed that his mother would not be detailed as a tenant as she was residing at [ADDRESS].

18. The Applicant provided a plan of [NAME_1] together with various photographs. The plan indicated that [NAME_1] comprised of a hallway/passageway, which led to a bathroom, kitchen, living room and two bedrooms. The photographs showed that the boiler was located in the kitchen, that radiators were installed in each of the rooms and that were there were two radiators in the hallway/passageway. The photographs also showed that, in addition to the radiator in the living room, [NAME_1] benefitted from an electric heater in the lounge. The Applicant confirmed that the heating system was working as expected and that any issues were handled by [COMPANY_6]’ contractors.

19. In relation to any improvements to [NAME_1], the Applicant stated that he had replaced the curtains and curtain fittings, that he had installed carpets, that he

5 had decorated the interior of [NAME_1] and that he had removed some dead trees from the garden.

20. In the Application form, the Applicant had indicated that no features at [NAME_1] had been provided by him and, during the Tribunal’s inspection, he confirmed that the central heating, electric fire and handrails had all been installed at [NAME_1] prior to his occupation. In the Application Form, he had provided no details as to why he believed that [NAME_1] might be unsuitable for occupation by the elderly.

The Respondent’s submissions

21. The Respondent’s bundle included the Respondent’s Statement of Case and a witness statement from [NAME_7], the Principal Home Sales and Leases Officer for [COMPANY_6]. Exhibited to [NAME_7]’s witness statement was a number of documents which included a copy of the tenancy agreement, a Sign Up Checklist, the Respondent’s Housing Allocations Policy, a copy of a 2017 letting advertisement for [NAME_1] and email correspondence between [COMPANY_6] and the Applicant from March 2017.

22. Both the Statement of case and [NAME_7]’s witness statement (‘the Statements’) confirmed that the Applicant was a secure tenant of [NAME_1] and that the Applicant had transferred to [NAME_1] from another [COMPANY_6]’ [NAME_1]. The Statements also submitted that the [NAME_9] was residing with him at the time of the transfer, as he was caring for her, and that this was the reason he was allocated [NAME_1].

23. The Statements confirmed that [NAME_1] was a two-bedroom, semi-detached bungalow, heated by gas central heating and constructed in 1983. They stated that [NAME_1] had level entry access, a level driveway to the front, a small step to the side porch and a small step leading from the back door to the rear. The Statements also referred to a mini supermarket and two hairdressers being located within five minutes’ walk from [NAME_1], [NAME_1] being located close to three major bus routes, it being 0.8 miles away from Bilston town centre and it being a nine minutes’ walk from the closest Midlands Metro stop with routes directly into [COMPANY_6].

24. The Statements also confirmed that a single man under pensionable age would not have been entitled to this type of [NAME_1] under the Respondent’s Housing Allocation Policy and that it was made very clear in the advertisement for [NAME_1], a copy of which was exhibited to [NAME_7]’s statement, that eligibility was for those who were sixty or over or registered disabled.

25. The Respondent’s Statement of Case referred the Tribunal’s attention to the [NAME_10]’s ([NAME_10]) Circular 07/2004 which stated that the size of a garden was not an issue that should be taken into account when determining appeals.

26. [NAME_7], in his witness statement, confirmed that the right to buy application was made on 14th April 2020 and that, after careful consideration, the application was declined because [NAME_1] had first been let prior to 1st January 1990, the

6 [NAME_1] was particularly suitable for occupation by elderly persons and it was let as accommodation for a person aged 60 or over.

27. [NAME_7] referred the Tribunal to the email exhibited to his witness statement dated 23rd March 2017 from [NAME_11] (the Principal Lettings Officer at [COMPANY_6]) to the Applicant, which, he stated, made it clear that it was only due to the [NAME_9] moving into [NAME_1] with him, and due to her medical condition, that the Applicant had been given Emergency priority and was being considered for a bungalow.

28. Finally, the Statements submitted that, to meet the needs of an ever-increasing elderly population, it was essential that the Respondent retained as many suitable properties as possible.

The Tribunal’s Deliberations

29. The Tribunal considered all of the evidence submitted by the parties and briefly summarised above. The Tribunal also considered the guidance contained in the [NAME_10]’s ([NAME_10]) Circular 07/2004 in light of the decision of the Upper Tribunal in Milton Keynes Council v Bailey [2018] UKUT 207 (LC), noting that the Tribunal must, when considering whether a particular [NAME_1] is suitable for occupation by the elderly, assess the characteristics of [NAME_1] as a whole.

30. In relation to the criteria detailed in paragraph 11(1)(a) of Schedule 5 to the Act, the Applicant had provided no information in his Application Form or in his submissions as to why he believed that [NAME_1] might be unsuitable for occupation by the elderly.

31. The Tribunal notes that [NAME_1] is a two-bedroom bungalow with easy access on foot to the house via a ramp with a gentle gradient to the front porch and a single step and threshold to the rear. Handrails are fitted next to both exits for additional support.

32. [NAME_1] also has reasonable heating arrangements. It benefits from gas central heating, with radiators to every room, as well as an electric heater in the lounge. The Applicant confirmed that the heating system was working as expected and that any issues were dealt with by the Respondent’s contractors.

33. The Tribunal considers that [NAME_1] is located reasonably conveniently for shops and public transport. The nearest bus stops and grocery store are both situated within 0.3 miles (less than 500 metres) of [NAME_1] and the pathways to both the bus stops and the shop are reasonably level.

34. Having considered all of the evidence submitted, and taking into account the Tribunal’s inspection of [NAME_1], the Tribunal determines that [NAME_1] is particularly suitable for occupation for elderly persons having regard to the criteria detailed in paragraph 11(1)(a) of Schedule 5 to the Act. In making this determination the Tribunal considered [NAME_1] as a whole and did not, as far as it was made aware, take into account any improvements made to [NAME_1] by the Applicant or any predecessor in title.

7 35. In relation to the criteria detailed in paragraph 11(1)(b) of Schedule 5 to the Act, the Applicant submitted that [NAME_1] was let to him, for his occupation, not for occupation by his mother, and that he was under 60 years of age at the time. He also stated that [NAME_1] was not offered to him by [COMPANY_6] but was given to him by an M.P.

36. The Respondent submitted that [NAME_1] was let to the Applicant for occupation for him and his mother, who was over sixty years of age at the time. [NAME_7] had exhibited three emails to his witness statement. The first email, timed and dated 10:30 on 22nd March 2017, was from [NAME_12] (a Lettings Officer at [COMPANY_6]) and was addressed to the Applicant. This email referred to “a bid that was placed for you at 101 Green Lanes Bilston”.

37. The second email, timed and dated 17:13 on 22nd March 2017, was from the Applicant to [NAME_12] and stated as follows:

“[NAME_12] for letting me know which [NAME_1] i bid on behalf of my mother, [NAME_9], as it was not in the Ad. In doing so I also know you are aware it is her benefit paying for this present [NAME_1] since December 2012, as i am not on JSA, I am been paid a carer allowance from my mother benefit to care for her.

I will fill in the form accordingly and any paperwork will be looked over by a lawyer, to make sure the paper work reflect it is my mother [NAME_1], as I am her live-in carer.

[ADDRESS] [POSTCODE] so i can assess it is appropriate to meet our needs?

Sincerely Yours [NAME_13]” [sic]

38. Although, the Applicant’s email refers to [ADDRESS], rather than 101 Green Lanes, as stated by [NAME_12] in her email to him, the Tribunal considers this to simply be a typographical error, as the Applicant’s email is in response to the email received from [NAME_12] and the subject line states that it is “Re: Possible offer of 101 Green Lanes Bilston”.

39. The Tribunal notes that the Applicant’s email, firstly, confirms that the Applicant had made a bid on [NAME_1], secondly, states that the bid was made on his mother’s behalf and that it was to be her [NAME_1] and, thirdly, that, as he was her live-in carer, he wished to assess [NAME_1] so that it met both of their needs.

40. The third email, which [NAME_7] specifically referred to in his witness statement, was from [NAME_11] (the Principal Lettings Officer at [COMPANY_6]) to the Applicant, timed and dated 13:27 on 23rd March 2017, which stated as follows:

8 “In terms of who [NAME_1] will be allocated to; as you are the main applicant on your application any offer of tenancy will be made to you. As the tenant of the home you can then decide who lives with you. Clearly we are understand that your mother will be moving with – your mother’s medical conditions are the reason you have Emergency priority and the reason you are being considered for a bungalow. If you are made the tenant of this [NAME_1] this will preserve your security of tenure so should your mother pass away in the future you will be able to remain at the home as this would not affect the tenancy of [NAME_1]…

… In terms of assuring that both you and your mother have secure accommodation for the foreseeable future the best option is for you to be the tenant of [NAME_1].” [sic]

41. The Tribunal notes that this email confirms that the Applicant was only considered for a bungalow due to the fact that his mother would be occupying [NAME_1] with him and that the Applicant was advised to be the tenant to provide him with security of tenure. The Tribunal also notes that the email correspondence between the Applicant and [COMPANY_6] directly contradicts the submissions made by the Applicant to the Tribunal, that he was not given [NAME_1] because his mother was to reside with him.

42. The tenancy agreement, which was exhibited to [NAME_7]’s statement, detailed the Applicant as the sole tenant, however, the Sign Up Checklist for [NAME_1] detailed [NAME_9], the [NAME_9], as a member of the household. The Sign Up Checklist also detailed, in the ‘Comments’ section, that [NAME_9] would be moving in with the Applicant and the ‘Income Details’ section referred to [NAME_9]’s income support together with the Applicant’s carers allowance.

43. The exhibits also contained a copy of the advertisement relating to [NAME_1] which detailed that eligibility was “60 Plus/Registered Disabled” and the Respondent’s Housing Allocations Policy detailed that bungalows were only offered to applicants aged 60+ or disabled persons/families.

44. Based on the evidence before it, the Tribunal is satisfied that [NAME_1] was let to the tenant for occupation for both him and his mother, who was 88 years of age at the time. As such, the criteria detailed in paragraph 11(1)(b) of Schedule 5 to the Act are also satisfied.

45. The Respondent stated that [NAME_1] was first let before 1st January 1990, as required by paragraph 11 (6) of Schedule 5 to the Act, and, in the absence of any evidence to the contrary, the Tribunal accepts the same.

46. The Tribunal, therefore, determines that the Respondent was able to deny the right to buy on the grounds set out in paragraph 11 of Schedule 5 to the Act.

Appeal

47. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the party appealing must apply, in

9 writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision stating the grounds on which that party intends to rely in the appeal.

M. K. GANDHAM …………………………

Judge M K Gandham