From the county courts

With grateful thanks as ever to the Legal Action Magazine Housing: Recent Developments section for information on these (and they are not noted till those reports are publicly accessible), a couple of county court cases of interest.

Assured Property Service Ltd v Ooo, County Court at Edmonton, 30 June 2017

Ms Ooo was an assured shorthold tenant of APS with a post 1 October 2015 tenancy. The landlord served a s21 notice. The county court made a possession order under the accelerated procedure without a hearing. Ms O made an application to set aside the order. This was on the basis that no gas certificate had been provided at the outset of the tenancy or subsequently. The landlord accepted that it had not supplied a gas certificate at the outset, but contested the claim that one was never served, arguing that there had been a subsequent inspection and certificate.

On the application, the District Judge held that provision of a gas safety certificate to the tenant prior to occupation was required by s.36(6) of the Gas Safety (Installation and Use) Regulations 1998. Provision of that certificate was a requirement of s.2(1)(b) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, failing which, no valid s.21 notice could be served by reason of s.21A Housing Act 1988 (as amended).

The possession order was set aside and the claim dismissed with costs to the tenant.


We raised the possibility of this defence back in September 2015. Can a failure to provide a gas safety certificate at the beginning of a tenancy be rescued by a later certificate? The District Judge here held not. However, that ‘once and for all’ failure (at least until a replacement tenancy) sits oddly with the way that the 28 day period for provision of a certificate after inspection during the period of the tenancy, set out in the Gas Safety Regs is expressly disapplied by s.2(2) of the 2015 Regulations. This issue will most certainly be revisited…

Scarville v LB Lewisham, County Court at Central London, 21 August 2017

Mr Scarville and his son were accommodated by the council in s.193 HA 1996 temporary accommodation within Lewisham. Later, a friend of Mr S’s son was stabbed outside the property. The police said Mr S and his son would need to be moved to alternative accommodation for their safety. Lewisham offered alternative accommodation in Bedford. Mr S initially agreed to accept the offer. However, before he was to move, Mr S was told by the officer investigating the stabbing that he and his son were actually not at risk at the Lewisham property.

Mr S then told the council that he would not be moving to Bedford as there was no risk at the Lewisham property and the police would confirm this.

Lewisham told Mr S its duty had been discharged by the refusal of the Bedford property. Mr S requested a review. The police confirmed that to Lewisham they had no intelligence to suggest that Mr S or his son were at risk at the Lewisham property. Nonetheless, Lewisham decided that, given the urgency with which alternative accommodation had needed to be secured, the Bedford property had been suitable, as there had been no other accommodation available. So its duty had been discharged on the refusal. Ms S appealed.

The Recorder quashed the decision. Referring to the judgment in Omar v Westminster City Council (2008) EWCA Civ 421, he held that:

(i) the review officer had to assess the facts at the date of the ‘discharge of duty’ decision, rather than the facts being ‘frozen’ at the date of the offer of the Bedford property; and

(ii) the review officer had to take into account facts in existence at the discharge date, even if they were not discovered until after that date. Before that date, the investigating officer had formed the view that there was not any risk at the Lewisham property and had confirmed this directly to the council, though after the discharge of duty date. In these circumstances, the reason for the council deciding that the Lewisham property was not suitable fell away.

It followed that it was ‘reasonably practicable’, for the purposes of HA 1996 s.193, for the council to secure that accommodation was available for Mr S’s occupation within its district, simply by leaving him at the Lewisham property. Its continued offer of the Bedford property had become in breach of that duty. Accordingly, the council’s decision that its duty had been discharged was irrational.


About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Homeless, Housing law - All, Possession.


  1. there are 2 requirements in reg 36
    1 give a copy of the last record pre occupation to new tenants — (36(6)(b))
    2 give a copy of any new record within 28 days of the check to existing tenants — (36(6)(a))

    “(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 days period for compliance with that requirement does not apply.”

    There are 2 ways of interpreting para (2).

    First is that the requirement is to give a copy of the record — (limited to the requirement on a landlord to give a copy of the relevant record to the tenant ) AND ignoring time limits. On this basis the 28 day period is an example and the failure to give copy prior to occupation would not be an uncorrectable failure.

    The other way is that this is incorrectable and it is only the post entry certificates with their 28 days from the date of the check requirement that can be corrected at any time.

    Either way it is arguable that a supply of a copy of a later certificate does not correct the failure to supply a copy of an earlier certificate that hadn’t been supplied when it should have been. It is arguable that only the supply of a copy of earlier certificates will do.

    • Yes. My point was that it is odd to disapply the 28 days requirement on provision of a certificate for an inspection during the term of the tenancy, but to leave an exact ‘once and for all’ requirement to provide before occupation.

      I don’t think your first interpretation works, though, the Reg is specific on the 28 day period for compliance. Not ‘any period of compliance, for example 28 days’

      The ‘non rectification’ case is arguable – that was why I raised it back in 2015. The same is potentially true of EPCs. But I don’t think it is categorically certain. So, there will be more cases.

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  3. It is another example of bad drafting probably not reflecting what Parliament intended (I am told – I have not looked personally – that extracts from Hansard suggest that Parliament did not intend for the failure to provide a certificate before a tenancy should rob the landlord from ever using s.21).

    What they meant to say was presumably “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”. .

    If they had left it at that then I don’t think the argument would have much strength. A copy will do. However, by seeking to put the matter beyond doubt (by referring to the 28 day limit not applying) the draftsmen has complicated things by not failing to specify that the requirement to provide a copy before the start of every tenancy does also not apply. Why specify that that part of the regulation doesn’t apply, but not the requirement to give the certificate at the start? Surely that suggests that the other time requirement does apply.

    But, It would be astonishing though if Parliament actually intended on converting ASTs into fully assured tenancies where the LL failed to provide a gas safety certificate at the outset. That is such a huge change in the law that it could not have been the intention of Parliament. Ultimately though the courts have to construe the regulations as they read them.

    As for the EPC, I think the argument is weaker. Reg 6(5) of Energy Performance of Buildings (England and Wales) Regulations 2012 simply requires that the certificate is “given” free of charge.The other parts of reg.6, which go to timing, do not need to be complied with. Provided the certificate is valid, I don’t see where the problem is and the regulation does not suggest that a certificate is not valid if not given before the tenancy.

    It is, however, consistent with the intention that all Parliament is concerned about is that a copy is eventually given to the teant.

    • I don’t think it would be fully assured – a replacement tenancy would reset the situation. But I agree that disapplying the 28 day provision strongly suggests time limits were not intended to apply tout court.

      Agreed on the EPC case being weaker.

  4. Surely the landlord has taken some other action to gain possession ? As Tessa points out, it surely can’t be the case that if a Gas cert wasn’t issued before a tenancy started, a Landlord can ‘NEVER’ serve a Sec 21 with a prospect of eviction. ! What options are open for Possession in that case now ?

    • It may be under appeal. But in any event, my view is that a ‘replacement’ tenancy effectively re-sets the position, assuming the gas cert is supplied when that new tenancy starts.

  5. Heard rumour of a Circuit Judge appeal of a similar gas certificate case upholding the ‘irremediable’ breach interpretation of the regulations.

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