Isaac Odeniran v Southend on Sea BC [2013] EWHC 3888 (Admin) [Not on Bailii yet]

Mr Odeniran had been convicted by the Magistrates of failing to comply with an improvement notice under s.11(2) and 12(2) Housing Act 2004, relating to category 2 hazards. The notice stated:

“Under section 12(2) of the Housing Act 2004, the Council requires you to carry out the works specified in the schedule attached to this Notice and to begin them not later than the 3rd day of May 2011 (being not less than 28 days from the date of this Notice) and to complete them by the 31st July 2011.”

The trouble with the notice was that 3 May 2011 was 28 days from the date of the notice, which was 5 April 2011, but not from service.

The Magistrates had found “that the improvement notice was not invalid when it specified a commencement date for remedial action less than 28 days from the date of its service.”

The High Court was not impressed. The requirement in s.13(3) Housing Act 2004 was clear:

“The notice may not require any remedial action to be started earlier than the 28th day after that on which the notice is served.”

The date of service of the notice, using the usual rules on postal service, was 7 April, meaning 28 days ended on 7 May, not 5 May.

Given that s.13(3)

in peremptory terms. It states that “the notice may not require any remedial action be started earlier than the 28th day after that on which the notice is served”. This notice was, accordingly, defective. The argument put forward is simple, namely that in those circumstances it is not possible for a person to be put in peril of criminal proceedings where the notice is not a proper notice.

This was accepted.

The Council did not appear, but had put in a skeleton seeking to uphold the submissions made to the Magistrates. On the non-attendance:

I am not in the least surprised because it seems to me that there can be no doubt that this was a defective notice and, accordingly, a prosecution for a failure to comply with it was inappropriate.

Appeal allowed and costs to Mr O, put forward at some £14,000.

This issue on dates will not surprise anyone dealing with homelessness, where councils continue to insist in their s.184 and s.202 review letters that the time limits for review or appeal are ’21 days from the date of this letter’, even though they must surely know full well by now that they aren’t, being 21 days from receipt. Surely someone in a council somewhere must understand the difference between date of notice/letter and date of service/receipt?