Milton Keynes Council v Bailey (HOUSING – Right to Buy) [2018] UKUT 207 (LC)

A bit of an oddity, this one, but there is perhaps a broader principle.

Paragraph 11 of Schedule 5 to Housing Act 1985 provides that a property is exempt from the Right to Buy where:

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).

Mr B was the secure tenant of a Milton Keynes Council property. he sought the right to buy, which was refused on the basis the property was exempt under para 11 Schedule 5. Mr B then appealed to the First Tier Tribunal.

The property was a bungalow with  sloping access path, with level access to bus stops and a local shop. The only issue as to the suitability for elderly persons concerned the heating system.

The primary source of space heating is an eco-biomass WindHager boiler to radiators run on bulk wood pellets.  This heating system is programmable and can be left on unattended overnight.  The boiler is about [one and a half metres] in height and there is a hopper in the top covered by a lid into which the pellets are emptied to feed the boiler.  The pellets are delivered in 15 kilogramme bags which are stored in a large plastic receptacle outside the back door.  There is a secondary heating system in the living room of an electric thermostatic convector and in the bathroom of an electric hot air heater.  Water heating is either by the central heating boiler or by an electric immersion through an insulated cylinder. 

Mr B argued that the heavy weight of bags of wood pellets mean that the heating system was not suitable for elderly people – the bags had to be moved from the storage point to the boiler. The FTT agreed

It considered that 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” (as defined in Circular 07/2004) would be able to undertake.  Additionally, it 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. 

So, the property was not particularly suitable for elderly people.

The council appealed to the Upper Tribunal

It argued that

i) The FTT had applied an improperly restrictive approach in considering that a property had to fill every criteria in the statutory guidance in Circular 07/2004

ii) the council had an arrangement with contractors to fill the boiler hopper on a weekly or twice weekly basis. This had no been considered by the FTT

iii) The FTT was wrong to conclude that elderly people as a class could not fill the hopper. The test at paragraph 11 did not relate to disabled or infirm people specifically.

iv) Lastly, the storage heaters were an adequate alternative.

The UT held

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.   

Additionally, I accept 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.  Just as it was legitimate in the West Oxfordshire case to take account of the delivery service offered by the local shop as a factor tending to minimise the effect of the distance of the property from local facilities, 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 is therefore successful on the first and second grounds.  I am unpersuaded by the third and fourth grounds, which challenge 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.  In my judgment those were both relevant factors which the FTT was entitled to take into account as part of a broad assessment but that is of no consequence since the first two grounds of appeal are enough to get the appellant home.

The property was exempt from the Right to Buy.