Michael Grant discusses the recent County Court case of Baz v Steele, Croydon County Court, 23 October 2019 (unreported), concerning service of an outdated version of the prescribed Section 8 notice.
I was recently instructed to obtain an order for possession upon reliance of a notice seeking possession under Section 8 of the Housing Act 1988 (“the Act”), which notice was served on the tenant in July 2019. The notice was in a prescribed form, it gave at least 14 days’ notice and sought reliance upon Grounds 8, 10 and 11 of Schedule 2 of the Act. Rent was due monthly, and there was clearly on the face of it at least 2 months’ worth of rent in arrears at the date of the notice. In fact, no rent had been paid for almost a year, and so there was no issue as to whether Grounds 8, 10 and 11 were capable of being relied upon. So far so good, I thought.
However, I spotted something (or rather the lack of something) at the top of the notice which appeared rather odd. The only statutory reference at the head of the notice was “Housing Act 1988 Section 8 as amended by S.151 of the Housing Act 1996”. There was no reference to S.97 of the Anti-social Behaviour, Crime and Policing Act 2014, nor to Section 41 of the Immigration Act 2016. Further scrutiny of this notice revealed that it also made no reference to any of the new grounds (7A, 7B or 14ZA).
It soon became clear that this notice was a former version of the Section 8 notice, and, after some digging, it transpired that it was in fact 3 versions out of date, and some 4 years old (i.e. it was the correct prescribed form for a period of 18 years between 28 February 1997 and 5 April 2015). This version I had before me was introduced by The Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997/194 (“The 1997 Regulations”).
The 1997 Regulations were revoked in 2015 by the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015/620 (“The 2015 Regulations”) which prescribed the (then) new Section 8 notice.
The 2015 Regulations were thereafter amended by the Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2016/443 (“The 2016 Regulations”), introducing an updated Section 8 notice, which is at the date of this bulletin the current prescribed notice.
The question therefore arose – if the 1997 version is served, does it still have legal effect?
In order to answer this, one must take a look at Regulation 2 of the 2015 Regulations, which is set out below (underlined for emphasis):
“In these Regulations any reference to a section or Schedule is a reference to a section of, or Schedule to, the Housing Act 1988 and any reference to a numbered form is a reference to the form bearing that number in the Schedule to these Regulations, or to a form substantially to the same effect.”
As to what is meant by “a form substantially to the same effect” is somewhat uncertain, and the lack of any clarification within the Regulations themselves as to either its meaning or scope is most likely a deliberate omission by the Ministry of Housing. This has resulted in the courts determining compliance on a case by case basis, which in turn has brought about an array of decisions. For example, see Manel v Memon (2001) 33 HLR 24; and City of London v Devlin (1997) 29 HLR 58.
There is, therefore, no hard and fast rule as to what would constitute a form substantially to the same effect.
Thus, in relation to the job at hand, it fell upon me to convince the court that the 1997 notice was in a form substantially to the same effect as the one currently prescribed.
I sought to rely on the reasoning handed down in Dudley Metropolitan Borough Council v Bailey (1990) 22 HLR 424, whereby Dudley MBC sought to determine a secure tenancy by serving a notice in compliance with S.83 of the Housing Act 1985, only that the notice served was not in the form prescribed by the Secure Tenancies (Notices) Regulations 1987/755. It was held that the requirement on the landlord is to give particulars of the ground specified by him on which the court will be asked to make an order for possession; the question is whether, at the date of the notice, the landlord has in good faith stated the ground and given particulars of that ground. The requirement is satisfied if the landlord has stated in summary form the facts which he then intends to prove in support of the stated ground for possession, despite the notice not being in the prescribed form.
I went on to explain that as Dudley MBC v Bailey concerned secure tenancies, it must therefore be influential upon matters concerning assured shorthold tenancies, particularly as assured shorthold tenancies (by their very nature) carry much less security.
The above reasoning was accepted by the Judge, who also determined that as the grounds relied upon by the landlord within the section 8 notice had not only been clearly set out but also satisfied, the mere failure to have served the current prescribed version was not enough so as to deem it invalid.
In support of this decision, the Judge found that as all such changes made to the Section 8 notice by the 2016 Regulations concerned grounds that were wholly unconnected with Grounds 8, 10 and 11, the information within the 1997 version concerning Grounds 8, 10 and 11 remained unchanged, and hence still valid.
Held – The notice was in a form substantially to the same effect as the one currently prescribed.
It is important to note that this decision was only at the County Court level, and is therefore not a binding authority. Nevertheless, it may signify a general trend towards deeming compliance where a notice clearly sets out the grounds of possession and the explanation for them thereof, despite the notice not being in the prescribed form.
In any event, whether or not courts are more willing to deem compliance in the future, it is so important to ensure that the correct form is used when serving your Section 8 notices, as the failure to do so may very well find a court taking a contrary view to the one seen above.
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