Housing – Right to Buy – Public sector housing – Exception – Appellant council appealing against decision of First-tier Tribunal allowing respondent’s appeal against refusal of right to buy – Whether appeal property particularly suitable for occupation by elderly persons – Appeal allowed
Part V of the Housing Act 1985, as amended, gave most qualifying tenants in public sector housing the right to buy the freehold interest in their home, often at a substantial discount from market value. But an exclusion prevented tenants of certain types of housing from exercising the right to buy, including where the property was “particularly suitable … for occupation by elderly persons”. The appellant owned the freehold of 12 Bryans Crescent, North Crawley, Buckinghamshire. The respondent was the tenant who applied to exercise his right to buy the freehold. The appellant council refused the application on the basis that the appeal property was particularly suitable for occupation by elderly persons, and so was exempt under the legislation. The respondent appealed to the First-Tier Tribunal (FTT).
The issue before the FTT was whether the arrangements for fuelling the boiler meant that the appeal property was “particularly suitable … for occupation by elderly persons”. The appellant relied on the fact that, whilst a frail elderly person would have difficulties, it had arranged for a contractor to visit the appeal property regularly to fill the boiler which would be replaced with an electric equivalent if it became problematic. The FTT determined that the requirement under para 11(6) of Schedule 5 to the 1985 Act, that the property was first let before 1 January 1990, as was the “letting test” (that under para 11(1)(b) the property was let to a tenant who was aged at least 60). The FTT then applied the “suitability test”, a subjective assessment based on the criteria set out in Government Circular 07/2004. Measured against those criteria, the appeal property was suitable for an elderly person. However, the level of manual handling required to operate the heating system in the normal course of occupation exceeded that which an elderly person “able to live independently despite some limitations owing to age” would be able to undertake. The statutory exception criteria had not been met and the appellant could not refuse the respondent’s request to buy the freehold.
The appellant appealed to the Upper Tribunal contending that the FTT had: (i) applied an improperly restrictive approach by which unless the appeal property satisfied the criteria in Circular 07/2004 it could not fall within the para 11 exception, rather than making an overall judgment in the round; (ii) had regard to irrelevant considerations, and disregarded relevant considerations; (iii) was not entitled to conclude that elderly people as a class would not be able to operate the heating system; and (iv) had failed to have regard to electric night storage as an alternative manner of satisfying the statutory criteria.
Held: The appeal was allowed.
(1) Under section 11 of the Tribunals, Courts and Enforcement Act 2007, an appeal against a decision of the FTT lay to the Upper Tribunal on a point of law only. In the case of a decision under para 11 of Schedule 5 to the 2007 Act, such as the present, no more general right of appeal was available (section 231C(1)(b) of the Housing Act 2004).
(2) It would be surprising if the appeal property, which in all other respects was suitable to house an elderly person, and was located in a cul-de-sac of similar properties all of which appeared to have been designed specifically for that purpose, was prevented from being considered particularly suitable for occupation by elderly persons because of one individual feature. That could not have been the intention of the parliamentary draftsman who adopted a non-prescriptive approach which invited consideration of the suitability of the property in the round. Although the characteristics of the property had to be assessed in aggregate, and not looked at individually, the question in a case such as this was whether the property was particularly suitable. Some features might tend in one direction, while others pointed the other way. Some features might be so significant in themselves that they made the property positively unsuitable but what was required was an assessment of the whole. By focusing on a single feature, the FTT had not made such an assessment. Additionally, the FTT was wrong to attribute no weight to the arrangements which the appellant had made to have the boiler filled with fuel as and when required. It was necessary for the FTT to assess the suitability of the appeal property in its full context (which included the availability of assistance in re-filling the boiler). The appeal was therefore successful on the first and second grounds. However, the court was unpersuaded by the third and fourth grounds, which challenged the FTT’s assessment of the difficulty which, unaided, most elderly people might experience with the boiler, and its assessment of the utility of the night storage heater. Those were both relevant factors which the FTT was entitled to take into account as part of a broad assessment but that was of no consequence since the first two grounds of appeal were enough for the appeal to succeed: RvSecretary of State for the Environment, ex parte West Oxfordshire District Council(1994) 26 HLR 417 considered.
(3) In the circumstances, it was inappropriate to remit the decision to the FTT. The only factor which prevented the FTT from finding the appeal property particularly suitable was the need to refuel the boiler. Since that difficulty could be, and was, overcome completely by the service provided by the delivery contractor, and since the appeal property was otherwise entirely suitable, the only proper conclusion available on the facts of this case was that the exception in para 11 of Schedule 5 of the Act applied. The appeal property was particularly suitable for occupation by elderly persons and the respondent could not exercise his right to buy the freehold.
The appellant was represented by its in-house solicitor; the respondent appeared in person.
Eileen O’Grady, barrister
Click here to read transcript: Milton Keynes Council v Bailey
