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.
Comment
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.