One Chance to Serve the Gas Safety Certificate?

One Chance to Serve the Gas Safety Certificate?

Since the Assured Shorthold Tenancy and Prescribed Requirements Regulations (England) 2015 (‘the regulations’) came into force on 01 October 2015, many landlords have served the gas safety certificate and energy performance certificate (‘EPC’) shortly before serving a section 21 notice upon finding that such documents were required to be served.

This case considered whether there was a time limit for a landlord to serve a gas safety certificate and energy performance certificate for the purpose of serving a section 21 notice.

In an appeal of a first instance decision of DJ Bloom, HHJ Jan Luba QC sent a highly persuasive message to housing practitioners and landlords. Although not binding as a County Court decision, landlords who did not provide a gas safety certificate at the start of a post 1st October 2015 tenancy, before the tenant moved in, is unlikely to be able to now serve a valid section 21 notice, at least during the period of the tenancy.

District Judge Bloom had dismissed a possession claim by Caridon Property Ltd (‘CPL’) on the basis that at the time CPL had purportedly served a section 21 notice on its tenant, Monte Shooltz, CPL had not complied with the requirements of Regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, in that a gas safety certificate had not been provided to the tenant at the start of the tenancy, before the tenant took up occupation.

A gas safety certificate had been provided some 11 months later shortly before the service of the s.21 notice. CPL appealed the decision to a circuit judge; the circuit judge was HHJ Jan Luba QC (very experienced in housing law and author of many housing law articles read by many in the legal industry).

The relevant provisions are that section 21A Housing Act 1988 (as amended) states:
(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

The prescribed requirement are, in part, found in the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015:

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

(a) (….), 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.

The Gas Safety Regulations 1998 state at 36(6):

(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.

So, the questions were:

a) Did Section 2(2) of the regulations remove the time limits for providing gas safety certificates in general?
b) Did the regulations contradict the primary legislation (the Housing Act 1988)?
c) Should a purposive reading of the regulations be applied to avoid an absolute bar on service of a section 21 notice?

For question a) HHJ Luba QC held

In my judgment, therefore, those words do not limit the impact of paragraphs 6 and 7 of Regulation 36 only to the scenario in which parliament is concerned with notice in relation to gas safety being given to existing tenants. Nor, in my judgment, is that understanding of Regulation 2(2) changed by the additional words “and the 28 day period…”. In my judgment, what those words mean is that where a landlord is seeking to say he or she has complied with the variant of paragraph 6 or 7 relating to an existing tenant that then the 28-day period for compliance with the requirement to give notice to an existing tenant does not apply.

Section 36(6)(b) of the Gas Safe Regulations requirement had to be complied with at the commencement of the tenancy.

As for question b) it was not legitimate to seek the purpose of the regulations in the Housing Act 1988 as originally enacted.

It is not legitimate to construe Regulations made in September 2015 pursuant to devolved powers in place as a result of legislation passed in July 2015 by reference to the purpose of primary legislation passed in 1988. That is not in my judgment permissible under any medium of statutory instruction or interpretation. I do not consider it necessary to engage further with the matter other than to see whether the construction I have given to Regulation 2(2) is inconsistent with the primary function of the AST Regs themselves. In my judgment, my interpretation as indeed that of DJ Bloom, gives effect to those Regulations. It controls the landlord’s ability to give notice under Section 21 to those circumstances in which assurance has been given to the occupier that the premises are safe (…)
Any other interpretation of the Regulations would leave it open to the landlord to give a Section 21 notice even where the landlord has let what at the time may have been dangerous and unchecked premises that may have fallen foul of the GS Regs.

For question c) – the explanatory note to the AST Prescribed Information Regs stated:

Regulation 2 prescribes certain requirements for the purposes of section 21A of the Act (compliance with prescribed legal requirements): these are the requirement to provide tenants with an energy performance certificate under regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 and the requirement to provide tenants with a gas safety certificate under regulation 36 of the Gas Safety (Installation and Use) Regulations 1998. However, the requirement to 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. The “no fault” eviction procedure for assured shorthold tenancies is not available to landlords at a time when either of the requirements has not been complied with.

in my judgment, that cannot sit appropriately with the obligation in the GS Regs for notifications to either be given or displayed prior to the taking up of a tenancy by an incoming tenant. That seems to me to have been a ‘once and for all’ obligation on a prospective landlord in relation to a prospective tenant. Once opportunity has been missed, there is in my judgment no sense in which it can be rectified. If the Minister believed that that ‘once and for all’ cut off should not debar a landlord from serving a Section 21 notice, it was open to the SoS to simply disapply those parts of Paragraphs 6 and 7 of Regulation 36 in express terms in what has become Regulation 2(2).

Accordingly, CPL’s appeal was dismissed.

Our Comments

HHJ Luba QC noted:

It may be observed, simply in passing, that in the most recent edition of the handbook ‘Defending Possession Proceedings’ – widely referred to by the first instance judiciary when dealing with possession cases, the authors of whom I am one – have written at paragraph 10.50 that “…if the latest gas safety certificate was not given to the tenant before he or she occupied, this is a breach which cannot be rectified… although this may not have been the legislative intention.

While the judgement is a county court appeal and thus not creating a binding precedent, it potentially will be very difficult for any District Judges to dissent to the judgement. In other words; landlords who do not provide their tenants with the gas safety certificate at the start of a post 1 October 2015 tenancy, before the tenant moved in, is likely to find that they cannot serve a section 21 notice, at least during the period of that tenancy.

It may be that this is going to the court of appeal who may rule differently, or it may be that the Prescribed Information Regulations will be amended by the Ministry of Housing, Communities & Local Government.

Notwithstanding what HHJ Luba had stated in his judgement, it is worth noting what Lord Ahmed of Wimbledon stated in a debate on the than Deregulation Bill (now the Deregulation Act 2015) from which the regulations derive. In debate on 11 February 2015 Lord Ahmed of Wimbledon stated:

The fourth element is to provide that, where a landlord has failed to comply with certain legal obligations, the tenant cannot be evicted using the Section 21 procedure. We envisage that this will apply to existing legal obligations such as the requirement to provide a new tenant with an energy performance certificate and to obtain an annual gas safety certificate. This restriction on the service of an eviction notice would be lifted as soon as these documents were provided.While some of these changes will involve small one-off costs to landlords, primarily due to the need to familiarise themselves with the legislation, we estimate that this provision will deliver savings to landlords of, as I said, about £3 million per year.

The relevance of this statement of Lord Ahmed is that courts may indeed turn to statements made in the House of Commons or House of Lords to assist interpret the law, usually primary legislation, albeit the current case related to secondary legislation we do not doubt Lord Ahmed’s statement provides clarity on the intentions of Parliament.
Turning to Parliamentary debates however can raise further issues. In the case Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 the court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege.

Judges cautiously accepted the judgment, some legal academics argued, inter alia, that the ruling damaged the separation of powers between the executive and Parliament. The decision was subjected to an assault by Lord Steyn in his Hart Lecture, delivered on 16 May 2000 and titled “Pepper v Hart: A Re-examination”, in which he disputed exactly what the House of Lords had meant by their decision. Since Lord Steyn’s lecture, several judicial decisions have limited the use of Pepper by the courts and it may be that courts expect an explanation as to how referring to Parliamentary statements in court proceedings is warranted.

The restrictions enacted by the Deregulation Act 2015 and consequential regulations to the serving of a section 21 notice are all lifted in certain circumstances, they are by no means intended to impose a permanent bar on the serving of such notice and this is consistent when turning to the Parliament debates on these matters. The issue is of course, as HHJ Luba stated in different context, Parliaments intentions may differ from the literal meaning of the regulations. Despite this, we believe that the regulations are indeed capable of being interpreted in a manner consistent with Parliaments intentions, but this will be for the higher courts to decide.

As stated in previous articles we have published, tenancy agreements should require tenants to sign an acknowledgement that they have received all the prescribed documents i.e. the EPC, Gas Safety Certificate, latest version of the How to Rent guide, Deposit Certificate and accompanying prescribed information as received which could avoid the contention which occurred in this case.