Council wins rare appeal to Upper Tribunal over Right to Buy exemption

Milton Keynes Council was won a rare appeal under the right to buy legislation in a dispute over whether the property in question was particularly suitable for occupation by elderly persons.

The case of Milton Keynes Council v Bailey (HOUSING – Right to Buy) [2018] UKUT 207 concerned a property in North Crawley, Buckinghamshire.

The tenant sought to exercise his right to buy the freehold of the appeal property on 2 March 2017. However, the local authority refused this request on 15 March, arguing that it was exempt under the legislation.

The tenant appealed to the First-Tier Tribunal (Property Chamber) (“FTT”), which allowed the appeal, determining that the statutory exception criteria under Part V of the Housing Act 1985, as amended, had not been met.

The FTT ruled that Milton Keynes could not refuse the tenant’s request to buy the freehold. In particular it took the view that the level of manual handling 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.

At issue were the arrangements for fuelling the boiler – the council had argued that whilst a frail elderly person would have difficulties in loading the hopper, it had arranged for a contractor to visit the appeal property once or twice a week to fill the boiler.

Additionally, the FTT found that the single thermostatic convector type wall mounted electric heater at one end of the large L-shaped living room was an insufficient substitute to meet the criteria.

For these reasons, the FTT determined that the appeal property was not particularly suitable for occupation by elderly persons and therefore allowed the tenant’s appeal.

The local authority appealed to the Upper Tribunal (Lands Chamber). Amongst other things it argued that the FTT had wrongly interpreted and wrongly applied the law. It said that the FTT had applied an improperly restrictive approach by which unless the appeal property satisfied each individual sub-criterion set out in Circular 07/2004 it could not fall within the paragraph 11 exception to the right to buy, rather than making an overall judgment in the round. 

It is also submitted that, in any event, Circular 07/2004 merely provided guidance and did not provide a mandatory set of criteria additional to paragraph 11 of Schedule 5.

Milton Keynes also said that the FTT had regard to irrelevant considerations, and did not have regard to relevant considerations.

Peter D McCrea FRICS, the Upper Tribunal judge, found for the council. He said: “In my judgment it would be surprising if the appeal property, which in all other respects was suitable to house an elderly person, and is located in a cul-de-sac of similar properties all of which appear 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 cannot have been the intention of the parliamentary draftsman who adopted a non-prescriptive approach which invites consideration of the suitability of the property in the round. I accept the council’s submission that the characteristics of the property must be assessed in aggregate, and not looked at individually.

“The question in a case such as this is whether the property 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 the property 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. By focusing on a single feature, the FTT did not make such an assessment and I accept the council’s first ground of appeal.”

Tribunal judge McCrea said he also accepted that the FTT was wrong to attribute no weight to the arrangements which the council had made to have the boiler filled with fuel as and when required.

He added that 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,” he said.

“Since that difficulty can be, and is, overcome completely by the service provided by the delivery contractor, and since the appeal property is otherwise entirely suitable, I am satisfied that the only proper conclusion available on the facts of this case is that the exception in paragraph 11 of Schedule 5 of the Act applies.”