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Not enough of a notice?


London Borough of Islington v Dyer [2017] EWCA Civ 150

Termination of an introductory tenancy requires a notice under s.128 Housing Act 1996. S.128(7) states

The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens’ Advice Bureau, a housing aid centre, a law centre or a solicitor.

Mr D, an introductory tenant of Islington, had defended possession proceedings on the basis that the s.128 notice did not include the required elements under s.128(7).

The Notice served by Islington did not have the s.128(7) elements on the face of the notice. Instead these were apparently contained within a second document, enclosed with the notice, called ‘Information Leaflet’.

Mr D argued that this meant the notice did not comply with the statutory requirements.

At first instance, Mr D lost, but on appeal to a CJ, his argument succeeded.

On second appeal by Islington, the Court of Appeal held

There is no prescribed form for a s.128 notice and so the starting point has to be whether the document or documents relied on can reasonably be described as a notice. In order to do so they have to give the tenant notice of the intended proceedings in compliance with the section: see s.128(1). To comply with the section the notice must contain the other information which s.128 prescribes. There is nothing in s.128 which limits the notice to a single page or a single document and in my view no such restriction can be spelt out of the statute. It will therefore be a question of objective fact in every case whether the documents relied on do or do not form part of the notice.

In this instance

the ‘Notice’ document directed the tenant in terms not only to that document but also to the notes in the Information Leaflet and the Information Leaflet stated that it was intended “to accompany Notice of Proceedings”. The language used falls short of an express incorporation of the contents of the Information Leaflet into the Notice document. Had it done so it would have put the matter beyond argument. But any reasonable tenant receiving the letter and the documents it enclosed would, I think, have realised that he needed to read the contents of both documents together in order to understand the action which the Council was proposing to take and in my view, looked at objectively, the two documents did function together as the notice for the purposes of s.128 even though only one of them was in fact called the ‘Notice’.

Appeal allowed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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