Gas Safety Certificates and Section 21 Notices: Trecarrell House Limited v Patricia Rouncefield  EWCA Civ 760
On 18th June 2020, the Court of Appeal handed down judgment in Trecarrell House Limited v Patricia Rouncefield  EWCA Civ 760.
In welcome news to residential landlords, the Court of Appeal has held that a landlord is able to rely on a notice for possession under s.21 of the Housing Act 1988 in circumstances where the landlord failed to provide a gas safety certificate to a tenant prior to the tenant’s occupation, provided that a gas safety certificate is served with or before the s.21 notice.
Legislation and Regulations
Housing Act 1988 (as amended by the Deregulation Act 2015)
21A Compliance with prescribed legal requirements
(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.
(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to-
(b) the health and safety of occupiers of dwelling-houses
21B Requirement for landlord to provide prescribed information
(1) The Secretary of State may by regulations require information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy of a dwelling-house in England (or any related matters) to be given by a landlord under such a tenancy, or a person acting on behalf of such a landlord, to the tenant under such a tenancy.
(3) 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 requirement imposed by regulations under subsection (1).
Reg. 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015
(1) Subject to paragraph (2), the requirements prescribed for the purposes of section 21A of the Act are the requirements contained in –
(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.
Reg. 36 of the 1998 Gas Safety (Installation and use) Regulations
(2) Every landlord shall ensure that there is maintained in a safe condition-
(a) any relevant gas fitting; and
(b) any flue which serves any relevant gas fitting,
so as to prevent the risk of injury to any person in lawful occupation or(sic) relevant premises.
(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….
(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…
(6)…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.
By a tenancy agreement dated 20th February 2017, the landlord (“T”) granted an Assured Shorthold Tenancy to Mrs Rouncefield (“R”) for a fixed period of 6 months. T did not provide R with a gas safety certificate (or otherwise display a copy of the gas safety certificate) before R entered into occupation. R was later provided with a gas safety certificate on 9th November 2017.
T served a s.21 notice on 1st May 2018 and thereafter issued possession proceedings. R defended proceedings on the basis that T could not rely on the s.21 notice because she had not been provided with a gas safety certificate until after she had entered into occupation.
County Court: first instance
At first instance, R’s defence was unsuccessful, and the Judge made a possession order.
County Court: appeal
On R’s appeal in the County Court, HHJ Carr held that the failure to provide a gas safety certificate before R’s occupation was irremediable, and the appeal was allowed. HHJ’s Carr’s judgment mirrored that of HHJ Luba QC in Caridon Property Limited v Shooltz (2 February 2018: 2018 WL 05822845), another County Court appeal.
The Court of Appeal
By a majority of 2 to 1 (LJ Moylan dissenting), the Court of Appeal held that failing to provide a gas safety certificate before the tenant’s occupation did not invalidate the s.21 notice if the gas safety certificate was provided with or before the s.21 notice.
Notable aspects of the judgment are:
- 21A(1) Housing Act 1988 contains the phrase, “…at a time when”. Lord Justice Patten and Lord Justice Moylan agreed that this is not limited to breaches which are remediable but could also refer to irremediable breaches.
- Lord Justice Patten, with whom Lady Justice King agreed, considered that regulation 2(2) follows on from regulation 2(1)(b), which made the whole of paragraphs 36(6) and (7) of the 1998 Regulations into prescribed requirements. Regulation 2(2) then operates as a restriction on the effect of regulation 2(1)(b). Regulation 2(2) disapplies the 28-day time limit in respect of the provision of gas safety certificates to existing tenants as found in regulation 36(6)(a). However, the majority of the Court of Appeal decided that the impact went beyond this.
- First, the majority acknowledged that regulation 2(2) did not have the effect of excluding regulation 36(6)(b) of the 1998 Regulations in its entirety. They explained that regulation 2(2) relates back to regulation 2(1)(b) which in turn specifies paragraph 6 of the 1998 Regulations as a composite provision without distinguishing between sub-paragraphs (a) and (b). However, ultimately it was decided that regulation 2(2) limits the prescribed requirement to one obligation alone: “to give a copy of the relevant record to the tenant”. As a result, this removes the requirement for the certificate to be served before a tenant’s occupation.
- Lord Justice Moylan disagreed that regulation 2(2) removes this requirement. He noted that whereas the 28-day time limit in regulation 36(6)(a) of the 1998 Regulations was expressly referred to, there was no similar reference to timing for the service of certificate on a new tenant.
- The majority of the Court of Appeal bolstered their conclusion as to the interpretation of regulation 2(2) with policy arguments, namely:
- There would otherwise be a vast and inexplicable disparity of outcome between the consequences of failing to provide existing tenants new gas safety certificate within 28 days and failing to provide a new tenant with the relevant gas safety certificate, even if the latter delay was only minimal.
- The effect on s.21 notices is not the primary sanction for non-compliance with the 1998 Regulations. For example, there remains criminal liability under 33 Health and Safety at Work etc. Act 1974.
- In his dissenting judgment, Lord Justice Moylan acknowledged the force of these policy arguments but also noted there may be further policy arguments militating in the other direction. Ultimately, he did not see any reason which would detract from what he would call a plain reading of the regulations.
There is now binding appellate authority that landlords can rely on a s. 21 notice so long as a gas safety certificate is provided before the notice is served or at the same time as it, even if the gas safety certificate was not provided before occupation by the tenant. However:
- Gas safety certificates must be accurate. In this case, an April 2018 gas certificate could not be relied upon where it recorded the wrong date for the safety check in breach of regulation 36(3)(c)(i) of the 1998 Regulations.
- There is an indication that a gas safety certificate can be relied on even where the safety check itself was not carried out within the 12-month interval required by 36(3)(a).
- The 12-month period from the last gas safety check must not have expired when the s.21 notice is served.
- It is less clear what would happen if no gas safety check had been carried out at all in the 12 months prior to the tenant’s commencement of occupation.