Court of Appeal: 29 Jan 2020 Before Patten LJ, King LJ and Moylan LJ
Richard Cherry of 1 Chancery Lane appeared for the Respondent instructed by Arfan Bhatti of Oliver Fisher Solicitors
This note is given for information only and no reliance should be placed on it. Parties should take legal advice on any of the issues
- The key facts – a tenant under an AST was not served with the most recent Gas Safety Record (‘GSR’) before occupation but was given it before service of the s21 Notice. The subsequent GSR was a record of a check made more than 12 months after the previous one.
- The Court was asked to decide two questions:
The First Question
Does failure to give a tenant a copy of a Gas Safety Record (‘GSR’) before the tenant begins to occupy as required by Reg 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998 (‘the Regulations’) preclude a landlord from relying on a section 21 notice and
The Second Question
Can a landlord comply with the requirement in Reg 36(6)(a) to give an existing tenant ‘a copy of the record made pursuant to the requirements of paragraph (3)(c) above’ by giving a record of a check that was made later than the 12 months stipulated by Reg 36(3)(a)
The First Question
- The majority (leading judgment of Patten LJ and concurring judgment of King LJ) held that in respect of the ability to rely on a Section 21 Notice, failure to give a GSR before the tenant begins to occupy can be remedied by giving the GSR at any time before service of a s21Notice.
- The key phrase in the judgment is that ‘regulation 2(2) [excludes]… from regulation 36(6) not only the 28 day provision in paragraph (6)(a) but also the requirement in paragraph (6)(b) that the GSR should be provided to a new tenant or displayed prior to the tenant going into occupation.’
- Moylan LJ dissenting held that it could not and (with HHJ Luba QC in Caridon Property Limited v Shooltz (2 February 2018: 2018 WL 05822845) and HHJ Carr below in the instant case) failure to give the GSR before occupation prevents reliance on a s21Notice.
The Second Question
- Patten LJ held that even if a Landlord fails to carry out a safety check within the 12 month timeframe required by Reg 36(3)(a), they can comply with Reg 36(6)(a) by giving an existing tenant a GSR made outside that 12 month window.
- King LJ did not specifically address the point and Moylan LJ wished it to be ‘properly and substantively raised and argued before finally deciding the point’.
- The Landlord’s appeal was allowed subject to remission to the County Court on a question of fact which does not affect the Court of Appeal’s decision on the law.
- The First Question – the Reg 36(6)(b) point – is now familiar to many landlord and tenant lawyers. It was heard in the County Court in Assured Property Services Limited v OOO and Caridon v Shooltz. They concluded that the words of Regulation 2(2) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regs”) applied only to the requirement in Reg 36(6)(a) to provide existing tenants with a copy of each new GSR within 28 days of a check.
- Patten LJ’s reasoning was to the contrary. He began with an overview of the relevant legislation:
Section 21A Housing Act 1988 (‘s21A HA 1988’)
Regulation 2(2) of the 2015 Regs
Regulation 36 of the Regulations
- He observes  that ‘Paragraphs (6) and (7) of regulation 36 are clearly intended to ensure that a prospective tenant either receives or has access to a copy of the last record of inspection before taking up occupation and that each existing tenant is either furnished with or can see and obtain records of subsequent inspections carried out during the subsistence of his or her tenancy.’
- He notes the impact of Reg 36(3) is that ‘installations are checked for safety every 12 months beginning no more than 12 months from the installation of the equipment. But regulation 36(3) is not itself a prescribed requirement, although non-compliance is punishable as a criminal offence.’
- He states that s21A HA 1988 and Reg 2(2) of the 2015 Regs ‘place additional pressure upon and provide encouragement for landlords to comply with the regulation 36 code of inspection’ by removing the ability to rely on a s21Notice for possession.
- He cites the critical passages (paragraphs 39-40) from HHJ Luba QC’s extended systematic analysis of the issue and engages on a reading of the key statutory words.
- His decision is based on the following factors:
- If failure to give a GSR before occupation prevents reliance on a s21 Notice, it gives the tenancy the security of a full assured tenancy ‘which was not what it granted’.
- The potential disparity created between protections for new and existing tenants
- Criminal sanctions for failure to comply with the Regulations – a prohibition on giving a s21 Notice is ‘only collateral to these sanctions and, at best, a spur to compliance’.
- The exclusion of the 28 day requirement by Reg 2(2) of the 2015 Regs shows Parliament did not intend ‘regulation 36(6) and (7) as prescribed requirements to be applied with the same vigour as the regulations themselves’ [emphasis added]
- The phrase ‘at a time when’ is mentioned but no firm conclusion is drawn given the different instances of its use
- The parliamentary materials put forward by the Appellant as supporting its case give little assistance
- Patten LJ accepts ‘the point is not straightforward’, but in the end ‘The correct source of the remediable nature of a breach of paragraph 6(b) is in my view regulation 2(2) … and … s.21A(1) can be given its ordinary and obvious meaning in relation to the limited prescribed requirement which is uplifted from paragraph (6)(b) by regulation 2(2).’
- King LJ in her judgment focussed on:
- failure to provide a GSR may be ‘the result only of an administrative oversight’
- the disparity of protection between types of tenants (as per Patten LJ)
- other failures which prevent reliance on a s21 Notice are remediable.
The Dissenting Judgment
- Moylan LJ did not find the issue ‘easy to resolve’. He followed a similar line of analysis to HHJ Luba QC in Caridon v Shooltz.
- He notes there are criminal sanctions but since the reason for enacting s21A HA 1988, is the ‘safety of occupiers of dwelling-houses’, it ‘might be expected to impose ‘a substantive sanction rather than simply a procedural requirement to give a GSR to a tenant at any time prior to the provision of a s.21 notice’.
- He agrees with Patten LJ’s conclusion that ‘s.21A does not mean that all the prescribed requirements must be remediable’ and holds that the words ‘”at a time when” in s21A’ … ‘do not mean, let alone require, that the prescribed requirements are to be interpreted as being remediable’.
- He notes the ‘disparity of treatment between the provisions of paragraph 6(a) and (b) for the purposes of s.21A’ and considers there may be reasons to justify it without (as he says) coming up with a clear answer. In his view however ‘no reasons have been identified, either by reference to principles of statutory interpretation or otherwise why, what I regard to be, the effect of regulation 2(2) on a plain reading should not be applied.’
- His analysis of the meaning of Reg 2(2) is based on:
- the express reference to the 28 day requirement
- use of the word ‘and’ and
- the absence of the words ‘before that tenant occupies’ as used in Reg 36(6)(b).
and he observes that ‘if the time requirements in both paragraphs (6)(a) and (6)(b) were lifted, then I do not see these provisions as imposing much of a sanction at all’.
- The Second Question received less attention and appears not to have come before the courts previously. The Respondent’s argument was based on the chain of the obligations in:
- Regulation 36(6)(a) – to give a tenant ‘a copy of the record made pursuant to the requirements of paragraph (3)(c)’
- Reg 36(6)(a) – to have appliances ‘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’
- Reg 36(3)(c) – to include specified information in the GSR
- Thus Reg 36(3) defines the thing that must be given to comply with Reg 36(6)(a) namely:
- by (3)(a) what a GSR must be a record of – ie an annual check and
- by (3)(c) what information must be in such a record.
- The words ‘so checked’ in paragraph 3(c) can only refer to the requirement of paragraph 3(a) and thus import into 3(c) the requirement that the GSR be of a check made within 12 months of the previous check.
- Patten LJ held that if the Respondent’s reading were correct ‘the landlord would have no obligation under paragraph (3)(c) to make and retain a copy of any late inspection nor would regulation 36(5) be workable.’ And concluded that the words “so checked” in paragraph (c) refer back to the phrase “checked for safety” in paragraph (3)(a) and cover every safety check which is carried out.’
The Impact of the Court’s Decision
- The impact of the majority decision on the First Question is that a landlord need not at any time give a copy of or access to any GSR to either prospective or existing tenants at any time before or during occupation until they choose to serve a s21 Notice – potentially a period of some years. A residential occupier has no way of knowing whether the Property they occupy or are about to occupy has been checked for safety at any time until they are asked to leave. The right under Reg 36(7) to request a copy of the record becomes nugatory as the Landlord is not obliged to display a copy of any GSR to inform a tenant of that right.
- The brevity of the Court’s conclusions on the Second Question cause counsel difficulty in assessing the impact; it seems that a landlord is not prevented from relying on a s21 Notice by failing to carry out safety checks within the 12 month timeframe of Reg 36(3)(a) because the requirement is limited to giving a GSR containing the information in Reg 36(3)(c). With no timeframe fixed for performing such a check the information could be of any check carried out at any time. This exacerbates the issue identified at Para 27 above.
- The further question is as follows: the obligations in 36(6)(a) and (b) to provide GSR at certain times are modified by Reg 2(2) of the 2015 Regs; no such modification applies to the Reg 36(3) obligation to carry out a safety check within a fixed timeframe. Does this suspend for all purposes the requirement to perform checks in the timescale given by Reg 36(3)(a)?
Read the judgment in full here