This article was first published in Nearly Legal
HHJ Carr in a reserved judgment handed down on 13 Feb 2019 allowed the Appellant’s appeal against a possession order made by DDJ Rutherford in the Truro County Court on 13 Sept 2018.
The tenancy was an AST granted 20 Feb 2017 of a self-contained flat in a domestic property. Hot water and heating were provided by a boiler outside the flat. It was common that no Gas Safety Certificate had been provided or displayed before the start of the tenancy but one was served prior to the service of the Section 21 Notice on 1 May 2018.
The case thus revisited the issues in HHJ Luba QC’s judgment in Caridon v Shooltz as to the obligations on a Landlord under:
- the Gas Safety (Installation and Use) Regulations 1998 (‘the 1998 Regulations’) and
- the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (‘the 2015 Regulations’)
and whether a Landlord in breach of those was prevented by s21A Housing Act 1988 from relying on a s21 Notice.
The First Instance Decision
The tenant was in person at the possession hearing while the Landlord was represented by counsel.
DDJ Rutherford considered that as the boiler was not within the demised property and the pipes within it carried water not gas, Reg 36(6) of the 1998 Regulations was not engaged at all. In the event that he was wrong, he went on to consider Reg 2 of the 2015 Regulations, and in particular Reg 2(2):
‘(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’
(This was of course the provision described by HHJ Luba at Para 19 of his judgment in Caridon as having caused ‘much difficulty’ for judiciary and parties alike. The point of whether Reg 2(2) actually allowed a Landlord to serve the appropriate Certificate at any time before a s21 Notice was as HHJ Luba noted at Para 30 ‘only faintly pressed’ in Caridon and failed to persuade HHJ Luba.)
DDJ Rutherford held Reg 2(2) to mean that ‘there is no absolute time limit on the provision of the gas record for the purposes of Section 21’.
On the purposive interpretation of the legislation, DDJ Rutherford held: ‘It cannot have been the case, in my view, that those who drafted both the primary legislation and the statutory instruments meant it to be the case that if a landlord failed to comply at the outset of a tenancy he was unable then to remedy any breach.’
The Tenant submitted that even if Reg 36(6) of the 1998 Regulations did not bite, Reg 36(7) applied, creating a parallel obligation to those in Reg 36(6)(a) and (b) which could be discharged by displaying a Certificate or supplying one to a tenant. The Tenant gave unchallenged evidence that no copy had been displayed. The learned judge did not deal with that point in his judgment.
The Tenant appealed on the basis that DDJ was wrong to consider that Reg 36(6) was not engaged and that even if he was correct, Reg 36(7) applied and the Landlord was in breach; DDJ’s interpretation of Reg 2(2) of the 2015 Regulations was incorrect and the obligation in both Reg 36(6)(b) and 36(7) of the 1998 Regulations meant that a landlord who had not supplied or displayed the current Certificate before occupation could not thereafter remedy that and was unable to rely on a s21 Notice. (This of course was the basis of the decision in Caridon – although Caridon on its facts dealt with Reg 36(6)(b).)
HHJ Carr derived considerable assistance from the judgment of HHJ Luba QC in Caridon v Shooltz. He noted that if the Appellant was correct and the Landlord was precluded from relying on a Section 21 Notice it did not preclude them seeking possession under the grounds in Schedule 2 of the Housing Act 1988.
As both parties agreed that if either Reg 36(6) or (7) applied the Landlord had breached both, the issue of whether the arrangements in the Tenant’s flat engaged Reg 36(6) was not at issue.
HHJ considered the reason for the Regulations was self-evident. A tenant moving in needs to be sure the gas is well-maintained and safe. It is rare that a tenant would have any control over that and the danger to life and limb was all too well-known. He distinguished between the nature of the obligations in Reg 36(6)(a) and (b) and repeated in 36(7) on the basis that a tenant considering whether to move in to a new property had a decision to make as to whether to take it and the knowledge that it was safe would be of great importance; the tenant already in occupation would already have had the assurance of the initial Certificate and the annual provision of a Certificate was by way of confirmation.
HHJ Carr referred to HHJ Luba’s reasoning at Paras 30-36 of his judgment in Caridon and adopted his view as to why Reg 2(2) of the 2015 Regulations could not have the meaning argued for by the Landlord.
He noted that the 1998 Regulations had been amended by The Gas Safety (Installation and Use) (Amendment) Regulations 2018 but 36(6) and (7) remained unchanged. Had there been concerns as to unfairness or lack of clarity there had been opportunity to amend them.
HHJ examined the rationale of the Assured Shorthold Tenancy and the balance of the statutory scheme. He considered the 1998 Regulations had originally lacked teeth which the amendments to section 21 Housing Act 1988 were designed to give them. No landlord loses the ability to rely on s21 unless they have failed to provide basic safety information.
HHJ considered that the arguments advanced by the Landlord in opposing the Appeal were essentially those in Caridon and for the reasons in Caridon they must again fail. He concluded that a failure to comply with Reg 36(7) cannot be remedied and s21 was not available to the Landlord in this case. The appeal was allowed and the possession claim dismissed.