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

OUTCOME: Dismissed

FIRST TIER TRIBUNAL PROPERTY CHAMBER RESIDENTIAL PROPERTY Case reference : CAM/22UE/RTB/2023/0001 Property : 4 Rundels Cottages, The Rundels, Benfleet, Essex [POSTCODE] Applicant: [redacted] Respondent : [redacted] Type of application : Appeal against the denial of the Right to Buy Date of Decision : 22 August 2023 ______________________________________

DECISION _________________________________ The Property is particularly suitable for occupation by elderly persons within the meaning of Schedule 5, paragraph 11, to the Housing Act 1985 and the exception from the right to buy applies.

REASONS FOR

DECISION The Application 1. The original application was made by Mrs [NAME] of 4 Rundels Cottages, The Rundels, Benfleet, Essex [POSTCODE] (‘the Property’) a tenant of Castle Point Borough Council (‘the Respondent’).

2. Mrs [RESPONDENT] made an application to the Respondent under the Right to Buy legislation in the Housing Act 1985 (‘the Act’) to buy the Property and, on 20 December 2022, 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. Mrs [NAME] then made an application to the Tribunal on 5 February 2023 for a determination as to whether the Property is suitable for occupation by elderly persons.

4. Subsequently Castle Point Borough Council informed the tribunal that Mrs [NAME] had unfortunately died but that [NAME]’s husband, Mr [APPELLANT] had a [NAME] tenancy with Mrs [APPELLANT] which had commenced on 31 January 2023.

5. The Tribunal wrote to say that it would substitute Mr [APPELLANT] as applicant if no objections were received by 17 July 2023. The council confirmed that it had no objection.

6. Neither of the parties requested a hearing. The Law 7. 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.” 8. 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.

9. 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.

10. Further guidance was issued by the Department for Levelling Up Housing and Communities (DLUHC) in April 2023. Unfortunately this guidance is incorrect and has been acknowledged as such by DLUHC who have undertaken to amend it as soon as possible.

11. 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 [NAME] 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 12. The Tribunal inspected the Property, internally and externally, during the morning of 2 August 2023 accompanied by Mr [APPELLANT] and representatives from Castle Point Borough Council.

13. The Property is a traditionally constructed semi -detached bungalow built in 1970’s. It is one of a development of 9 bungalows.

14. The property has tiled pitched roof and is rendered and partially timber clad to the front elevation. It is situated on a fairly level site.

15. The Property has the following accommodation Hall Lounge Kitchen 1 bedroom Bathroom comprising a bath/shower, wash hand basin and WC. The property has UPVC windows and central heating.

16. There is a small garden to the front and a garden to the rear.

17. Access to the house is via a slightly sloping path from the public highway with one shallow step into the porch and another into the house at the front and a step into the garden at the rear.

The Applicant’s case 18. The Applicant said that there were no age-related adaptations to the property and that is had previously been occupied by two previous tenants in their early 20’s.

19. The path to the front was some 15/20 meters long and there were two steps into the house – one into the porch and another into the house.

20. There was no off-street parking and the garden would need adapting to be age friendly as the paving slabs were uneven at the rear.

21. They provided a number of photographs annotated to show the lack of any adaptations such as handrails and ramps throughout the property. The shower was situated over the bath .

22. They did not agree that the property was suitable for the elderly or disabled people and said that they had been told that they had the right to buy when they moved into the property following an exchange from a flat elsewhere. The Respondent’s case 23. The Respondent stated that they intended to oppose the appeal. The property was considered to be suitable for the elderly, being a single storey one bedroomed bungalow.

24. The property was first let before 1 January 1990 and the current tenancy was granted to the original applicant – Mrs [APPELLANT] on 24 January 2022 when the tenant was 74 years old .Mr [APPELLANT] was then added to the tenancy on 31 January 2023 when Ms [NAME] was 75 and he was 61.

25. The nearest bus stop was 65 metres away. The nearest chemist was 485 metres away with the nearest GP 440 metres away. There was a convenience store 305 metres away.

26. The development of 9 properties – 6 to the west side of the Rundels estate and 3 on the east side had been purpose built for the elderly and most were occupied by people over 60.

27. Whilst the property did not have off road parking there was a disabled parking bay outside No 4.

28. There were stepped entrances to the property with one step to the front entrance and one step to the back entrance. Height of front step measured 100 millimetres and the height of the front door threshold measured 125 millimetres whilst the height of rear step measured 100 millimetres.

29. The front access ramp was 11 metres long by 800 millimetres wide and had a rise of 300 millimetres.

30. The small front and back gardens were laid to lawn with an access path to the front door and a path running down the middle of the lawn at the rear.

31. There were no adaptations for an elderly person.

32. There was gas central heating with a new boiler installed in April 2017 and the boiler was serviced annually, Radiators heated the hallway, lounge bedroom, kitchen and bathroom and the property benefited from double glazed windows.

33. In terms of a promise of the right to buy they said that no tenant would be advised that they had the right to buy prior to taking up a tenancy as each individual application must go through the same tests to determine this at the time of their application, in accordance with Housing Act 1985. Tenants should only be advised that they have may have the right to buy, and could certainly apply to establish this, once they become a secure tenant of Castle Point Borough Council.

34. The housing officer who Mrs [NAME] had dealt with at the time of mutual exchange had left the council and they were unable to find any record of a conversation in this respect.

35. They accepted that a tenancy of the property had been granted to persons under 60 years of age. These tenancies were granted on a fixed, short term tenancy until more suitable property was found. Determination 36. 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 and to its own inspection.

37. 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.

38. Consequently, the fact that it does not have any adaptations which may be required by someone who was infirm, or disabled is of little significance.

39. 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.

40. In short, there is easy access to the Property on foot and it is situated on a fairly flat and level site and steps into the property are shallow. It is on one level with one bedroom. It benefits from a gas fired central heating system which has been recently serviced and has double glazing.

41. Further, the Property is in a convenient location with local amenities reasonably near to hand.

42. In light of the above, the Tribunal finds that the Property is particularly suitable for occupation by elderly persons.

43. 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. In its Statement of Case the Council stated that the Property had been first let before 1 January 1990 and that, when the current tenancy was granted, it was to a person who was aged 60 or more. The fact that is has been let previously to tenants under 60 does not frustrate this.

44. The Applicant did not challenge the evidence submitted by the Council in this respect. In these circumstances, the Tribunal finds that the letting test is satisfied.

45.

Accordingly, the Tribunal determines 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 of the right to buy the Property.

46. The tribunal appreciates that this will be disappointing to the tenant, particularly following the death of his wife and [NAME], and thanks both parties for their helpful submissions. © CROWN COPYRIGHT

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

2. The application for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

3. If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed despite not being within the time limit.

4. The application 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 making the application is seeking.