fbpx

Trecarrell House Limited v Patricia Rouncefield [2020] EWCA Civ 760

On 29 January 2020 the long-awaited appeal concerning the impact of service of a Gas Safety Record on a section 21 notice was heard by the Court of Appeal, which consisted of a panel of Lord Justice Patten, Lady Justice King and Lord Justice Moylan.

The judgement was handed down on 18 June 2020 and a copy can be found here.  

Background

Ms Rouncefield was let a Flat under an Assured Shorthold Tenancy (“AST”) dated 20 February 2017 for a period of 6 months. The Flat is provided with central heating and hot water by means of a gas boiler which is housed elsewhere in the building.

At the time when the tenancy was granted, Ms Rouncefield was not provided with a copy of the relevant gas safety record (“GSR”) nor had the Claimant displayed a copy of the GSR in some prominent position in the premises.

On 9 November 2017, some 9 months following the commencement of the tenancy, a copy of the relevant GSR was served on Ms Rouncefield. This GSR was dated 31 January 2017.

There is a further GSR, dated 2 February 2018, which Ms Rouncefield contends was not served on her. There is also a dispute about the date this was carried out, as there is a version which is dated some months later, but this is not relevant to this appeal.

The Claimant served a section 21 notice on Ms Rouncefield on 1 May 2018.

To summarise in bullet point form for ease of reference later, there is the following timeline:

  • 31 January 2017 – date of first GSR
  • 20 February 2017 – flat is let under AST
  • 9 November 2017 – date of service of first GSR
  • 2 February 2018 – date of second GSR
  • 1 May 2018 – date of section 21 Notice

The statutory regime

Section 21 Housing Act 1988

Section 21 Housing Act 1988 (“the Act”) allows a landlord to gain possession of a property let under an AST from a tenant without giving a reason. All a landlord has to do to gain possession is to comply with particular rules; if these rules are complied with then the judge has no discretion as to giving possession. This is known as a “no-faults” eviction.

Section 21A(2) sets out these requirements as relating to the following:

  • the condition of dwelling-houses or their common parts,
  • the health and safety of occupiers of dwelling-houses, or
  • the energy performance of dwelling-houses.

Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulations”) sets out the specific requirements for complying with section 21A(2). This reads as follows:

(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in—

(a)        regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012(2) (requirement to provide an energy performance certificate to a tenant or buyer free of charge); and

(b)       paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998(3) (requirement to provide tenant with a gas safety certificate).

(2) For the purposes of section 21A of the Act, the requirement prescribed by paragraph (1)(b) is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.

Gas Safety (Installation and Use) Regulations 1998

Paragraphs 6 and 7 of the Gas Safety Regulations 1998 (“the 1998 Regulations”) read as follows:

(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

(a)        a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check; and

(b)       a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises save that, in respect of a tenant whose right to occupy those premises is for a period not exceeding 28 days, a copy of the record may instead be prominently displayed within those premises.

(7) Where there is no relevant gas appliance in any room occupied or to be occupied by the tenant in relevant premises, the landlord may, instead of ensuring that a copy of the record referred to in paragraph (6) above is given to the tenant, ensure that there is displayed in a prominent position in the premises (from such time as a copy would have been required to have been given to the tenant under that paragraph), a copy of the record with a statement endorsed on it that the tenant is entitled to have his own copy of the record on request to the landlord at an address specified in the statement; and on any such request being made, the landlord shall give to the tenant a copy of the record as soon as is practicable.

The astute reader will note that regulation 6(6)(a) refers to regulation 3(c). Regulation 3 reads as follows:

(3) Without prejudice to the generality of paragraph (2) above, a landlord shall—

(a)        ensure that each appliance and flue to which that duty extends is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety (whether such check was made pursuant to these Regulations or not);

(b)       in the case of a lease commencing after the coming into force of these Regulations, ensure that each appliance and flue to which the duty extends has been checked for safety within a period of 12 months before the lease commences or has been or is so checked within 12 months after the appliance or flue has been installed, whichever is later; and

(c)        ensure that a record in respect of any appliance or flue so checked is made and retained for a period of 2 years from the date of that check, which record shall include the following information—

(i)        the date on which the appliance or flue was checked;

(ii)       the address of the premises at which the appliance or flue is installed;

(iii)      the name and address of the landlord of the premises (or, where appropriate, his agent) at which the appliance or flue is installed;

(iv)      a description of and the location of each appliance or flue checked;

(v)       any defect identified;

(vi)      any remedial action taken;

(vii)     confirmation that the check undertaken complies with the requirements of paragraph (9) below;

(viii)    the name and signature of the individual carrying out the check; and

(ix)      the registration number with which that individual, or his employer, is registered with a body approved by the Executive for the purposes of regulation 3(3) of these Regulations.

Possession Hearing

The initial possession hearing was heard in Truro County Court on 13 September 2018 in front of District Judge Rutherford.

Ms Rouncefield defended the claim for possession on the basis that the claimant had failed to comply with either regulation 36(6)(b) or 36(7) of the 1998 Regulations at the time when it granted her the tenancy and before she began to occupy the Flat. 

DJ Rutherford held that regulation 36 had no application either because there was no gas appliance in the Flat which Ms Rouncefield occupied or because the time limit prescribed in regulation 36(6)(b) for the provision of the certificate (“before the tenant begins to occupy”) was not a bar to late compliance. As such, possession for the property was granted.

Appeal to County Court

 Ms Rouncefield appealed this possession order and the appeal was heard by His Honour Judge Carr on 13 February 2019.

It was common ground that because the Flat is served by a gas boiler, an annual gas inspection needs to be carried out. Therefore the only question to be considered was whether late service of the GSR meant the Claimants could rely on the section 21 notice.

HHJ Carr held that late service of a GSR could not enable to Claimants to rely on the section 21 notice, and in doing so relied on the reasoning set out by HHJ Luba QC in Caridon Property Limited v Shooltz (2 February 2018: 2018 WL 05822845).

The upshot of Carridon with HHJ Carr’s interpretation of the regulations is that a failure to comply strictly with regulation 36(6)(b) or 36(7) excludes the service of a section 21 notice for all time.

Court of Appeal

The Claimant appealed to the Court of Appeal. The hearing was heard in front of Lord Justice Patten, Lady Justice King and Lord Justice Moylan on 29 January 2020.

Arguments of Claimant

To summarise, the Claimant argued the following:

  1. The phrase “at a time when the landlord is in breach of a prescribed requirement” used in section 21A(1) suggests that late compliance is permitted as, if there is a time when the landlord is in breach, there can also be a time when the landlord is not in breach.
  2. The 2015 Regulations perform the function of identifying which provisions of other primary and subordinate legislation constitute prescribed requirements for the purposes of section 21A but they do not contain any provisions which determine the consequences of a breach of a prescribed requirement.

Arguments of Defendant

Ms Rouncefield sought to uphold HHJ Carr’s judgement, with the following additional grounds:

  1. Although there is factual disagreement as to the date of the second GSR, it is common ground that it was carried out more than 12 months from the first GSR. As such, as per regulation 36(3)(a) of the 1998 Regulations, the GSR is not valid.
  2. This is because regulation 36(6)(a) refers to “the record made pursuant to the requirements of paragraph (3)(c)”. Regulation 36(3)(c) refers to what should be recorded in the check but this has to be read with Regulation 36(3)(a), which sets out the frequency of the checks.
  3. As the Claimant confirmed the second GSR originally served was inaccurate, the second GSR was not served before the section 21 and cannot be relied upon in any event.

Judgement

As stated above, the appeal was heard by Lord Justice Patten, Lady Justice King and Lord Justice Moylan. All three of whom gave individual judgements.

Lord Justice Patten

Patten LJ gives the leading judgement and states he would allow the appeal on the following grounds:

Interaction of Regulation 2(2) and Regulation 36(6)(a) and (b)

Patten LJ holds that regulation 2(2) of the 2015 Regulations, as held in Caridon, does not have the effect of excluding regulation 36(6)(b) of the 1998 Regulations.

To make clear, regulation 2(2) states that the requirement under regulation 1(b) that a landlord must provide tenants with a gas safety certificate,

“is limited to the requirement on a landlord to give a copy of the relevant record to the tenant and the 28 day period for compliance with that requirement does not apply.”

Patten LJ makes clear this does not mean that the landlord only needs to give the tenants in occupation of the property a copy of the GSR, but that it also includes the provision under Regulation 36(6)(b) that it must be given to new tenants as well.  

He also concludes that regulation 2(2) removes the requirement under regulation 36(6)(a) for the latest gas check to be served on the existing tenants within 28 days of the check being carried out.

Regulation 36(6)(b) time limit

Patten LJ holds that the obligation to provide the GSR to a new tenant prior to the tenant taking up occupation can be complied with late. That is to say, late service of a GSR can be remedied.

Patten LJ departs from HHJ Luba’s conclusions in Caridon that there are clear policy reasons for there being a stricter time limit for landlords to comply with regulation 36(6) when a new tenant moves into a property.

He finds that because the 28 day requirement in 36(6)(a) is excluded, and because there are criminal sanctions available for non-compliance with the Gas Regulations, at [24]

“Parliament did not intend regulation 36(6) and (7) as prescribed requirements to be applied with the same vigour as the regulations themselves”

Patten LJ also states that “at a time when” is used in Housing Act 2004 regarding prescribed information and deposits in a context wherein there is something that can be done to stop a non-compliance i.e. it cannot last forever.

Out of time GSR

Regulation 36(3)(a) makes clear that each gas safety check should be carried out not more than 12 months following the last one. Ms Rouncefield argued that because the 2 February 2018 GSR was more than 12 months after the previous one (in 31 January 2017), there was also a breach of paragraph (6)(a) and (7) because the second GSR was not a copy of the record “made pursuant to the requirements of paragraph 3(c) above”. 

Patten LJ holds that failure to carry out the next gas safety check within 12 months of the last one is not a bar to a valid section 21 because regulation 36(3)(a) is not itself a prescribed requirement. As long as the last gas safety check is served once that check has been carried out.  

Remittance to County Court

There is an issue of fact to be argued in the County Court, namely, if Ms Rouncefield was given a copy of the February 2018 GSR prior to the section 21 being issued in May 2018. Patten LJ makes clear that if the GSR was not provided proper to the section 21, then the appeal would fail on that alone.

Lady Justice King

King LJ states that, in agreement with Patten LJ, she too would allow the appeal with the following additions:

  • All other prescribed requirements needed for a valid section 21 are capable of remedy.
  • Section 21 is not the primary sanction for non-compliance
  • The obligation for a landlord to provide the GSR only arises after a person becomes a tenant
  • “At a time when” indicates there is something a landlord can do to cease being in breach, which is to give a copy of the relevant record to the tenant

King LJ goes on to state, at [45], that:

“so long as the GSR has been provided to either a new or existing tenant before service, a landlord retains his right to use the s21 procedure notwithstanding his or her earlier breach of the s36(6) or(7) requirements.”

Lord Justice Moylan

Moylan LJ disagrees with the conclusions drawn by Patten LJ in relation to whether late service of a GSR to a new tenant allows a landlord to rely on section 21 and dismisses the Claimants argument.

Moylan LJ notes that all the other prescribed requirements for service of a section 21 are capable of being remedied at any time but states, at [48]:

“this is largely because many of them have no date for compliance and, significantly, none of them are directly addressing the safety of occupiers of the property.”

He goes on to highlight that section 213(3) Housing Act 2004, the failure to protect a deposit, is itself irremediable and that there is a statutory alternative under section 215 which allows the effect of non-compliance with section 213(3) to be avoided.

He agrees with Patten LJ that regulation 2(2) removes the 28 day time limit for providing an existing tenant with a GSR but does not agree that it applies to the provision under 36(6)(b) to give a new tenant the existing GSR.

At [57], Moylan LJ points out that:

“regulation 36(6) contains two separate obligations in (a) and (b), only one of which has a “28 day period for compliance” as referred to in regulation 2(2).”

He goes on to determine that although there is a greater sanction for breaching 36(6)(a) than (b), there is nothing by way of statute that enables him to conclude otherwise.

Summary

In summary, the following is decided by the Court of Appeal:

  • As long as the GSR is provided to the tenant prior to service of the section 21, the notice will be valid;
  • Regulation 2(2) of the 2015 Regulations does not have the effect of excluding regulation 36(6)(b) of the 1998 Regulations and new tenants do need to be served with a GSR;
  • Regulation 2(2) of the 2015 Regulations removes the 28 day time limit for giving a GSR to an existing tenant.

Commentary

It is difficult to reconcile this interpretation of the law with legislation which would appear to be aimed at ensuring the safety of tenants. Similarly, I find it hard to balance this interpretation with the actual wording of regulation 36(6)(b) of the 1998 Regulations which states that the GSR needs to be given to any new tenant “before that tenant occupies those premises”.

I would agree with Moylan LJ’s characterisation of the majority finding: late service of the GSR for the purposes of 36(6)(b) becomes a mere “procedural requirement” rather than a “substantive sanction”.

My initial conclusion was that all a landlord would need do to successfully obtain possession using section 21 was to serve the most recent GSR on the tenant prior to service of the notice. However, having considered the points put to me by Nearly Legal, I think it is right that a landlord would need to carry out a check prior to the tenancy commencing then, at some point prior to the section 21, serve this (as well as the most recent GSR) on the tenant.  

It as yet unclear to me what would happen if, for example in an AST which was 5 years in length, a landlord carried out a check prior to the tenant’s occupation and did not carry out any further checks. Then only serves a copy of the original GSR prior to the section 21 notice. Could it be arguable that if there is no relevant check, then there is no record to be served in line with regulation 36(6)(a)? I do not think this is correct as the court does refer to the need for the existing tenants to be given a check. 

In any event, this would appear to be of little deterrence to poor landlords. If the case is that only the GSRs needing to be given is the one prior to occupation and the most recent check carried out during occupation, then in a lengthy AST this could leave a number of years in the middle whereby a check does not need to be done for the purpose of a section 21.  

This seems wrong to me when considering the very low risk of an HSE prosecution, which appear to be in the tens per year with regard to the Gas Safety Regulations as a whole.  

Similarly, in relation to the frequency of checks, little regard seems to have been had to Regulation 36A of the 1998 Regulations (which was introduced by The Gas Safety (Installation and Use) (Amendment) Regulations 2018). The purpose of this amendment was to help landlords who carry out checks more proactively. The reason that this is significant is because Parliament did consider the Regulations in 2018 and how they interface with a landlord’s obligations, but chose not to amend them further to this.  

Article written and updated on 18 June 2020 by Billy Clerkin. Ms Rouncefield instructed our Arfan Bhatti who was assisted by our Billy Clerkin