22/03/2018

Errata – AST regulations and non-existent requirements.

Yes, there is indeed a backlog of cases to write up, covering issues from who pays for cladding removal, through Tribunals and the Human Rights Act, to the proper venue for a claim for accommodation pending s.204 appeal where there was no review decision. But a) busy and b) today at least, ill (just a cold, no need to send flowers).

So instead, here is a potential issue with legislation on assured shorthold tenancies, due to hit in October.

Deregulation Act 2015 section 41(3) provides (in regard to sections 33-38 and 40)

At the end of the period of three years beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision also applies to any assured shorthold tenancy of a dwelling-house in England—
(a) which is in existence at that time, and
(b) to which that provision does not otherwise apply by virtue of subsection (1) or (2).

This includes the ‘compliance with prescribed legal requirements’ at section 38, or what is now s.21A Housing Act 1988 (though not the prescribed information requirements at s.39/s.21B).

So, the purpose of this section is that the prescribed legal requirements that have applied to all post 1 October 2015 assured shorthold tenancies will apply to all ASTs or statutory periodic tenancies in existence on 1 October 2018, regardless of when they started.

The prescribed legal requirements are set out in The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 at s.2 – gas safety certificates and EPCs. (There are issues around this, as noted here. No retrospective compliance?)

But. But, but, but. The 2015 regulations state, at s.1

(3) Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015.

(4) These Regulations do not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 on or after 1st October 2015 on the coming to an end of an assured shorthold tenancy that was granted before that date.

As far as I can see then, come 1 October 2018, section 21A Housing Act 1996 will apply to all existing ASTs/SPTs, but there will actually be no prescribed legal requirements for pre 1 October 2015 tenancies, (or any statutory periodic tenancies that started after 1 October 2015, but following an AST fixed term that commenced before 1 October 2015), because the requirements are set out in regulations that expressly exclude those earlier tenancies.

So some landlords will have to comply with prescribed legal requirements that don’t exist, at least for their tenancies.

Maybe there will be new regulations before October 2018? Maybe, even, those new regulations might address the gas safety certificate (and maybe EPC) issue – clarifying one way or another – because heaven knows that one needs sorting out quickly.

If there aren’t new regulations, lawyers are going to have a field day. And this is not necessarily a good thing.

 

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.

31 Comments

  1. David d'Orton-Gibson

    Thanks Giles. Not sure I quite get the problem as to me this makes perfect sense? The act applies to all post Oct 2018, so everyone has to use the Form 6A notice. However, subsection 3 and 4 of the regulations dis-apply the requirement to supply the gas safety record and EPC for those tenancies where this should have initially been done before this requirement was prescribed (essentially not making it “retrospective”). I understand the problem from the Assured Properties case, though that is different from this in that they were post Oct 2015 cases. As I understand it neither Assured Properties nor Caridon Properties clarified the effect of a new tenancy or a new gas safety record (so that you were then within the 28 day rules) on that initial breach. Perhaps any clarification could address that.

    Reply
    • Giles Peaker

      If that was the intent, then s.38 (s.21A) should simply have been left out of s.41(3) Deregulation Act, in the same way that s.39 (s.21B) was.

      Reply
    • David d'Orton-Gibson

      Thanks. I would see the option of leaving it out altogether as simply a different way of dealing with it but what might be called a “blunter” way. The solution they have used allows them, by regulations to exclude some prescribed requirements (as they have chosen to do with gas safety and EPC) but not to exclude other prescribed legal requirements (maybe in the future having a valid EICR test report). Thanks

      Reply
      • Giles Peaker

        No, those are the ONLY prescribed legal requirements arising from s.38. I take your point about future ones, but then why not do the same with s.39?

        Reply
  2. Ben Reeve-Lewis

    So if I understand this correctly, the s39 prescribed info wont need to be served before s21 can be served if the tenancy pre-dates October 15 or any subsequent SPT but the requirements for the use of the new form 6A (s35) will apply post Oct 2018, as will the time limits (s36) but the form 6A wording mentions the details set out in s39 which will be excluded for older tenancies.

    Plus, the new accelerated application form N5b will also be misleading, as it relates to all requirements of the Dereg Act,

    Am I going mad or misinterpreting?

    Reply
    • Giles Peaker

      No, that is right. S.39 (s.21B) is left out of the ‘applies to all tenancies from 1 October 2018’ rule.

      All wonderfully clear.

      Reply
  3. David

    Morning Giles

    I am sure you did this just so we get the same headache that your cold has given you

    It certainly does seem to be oxymoronic law, the question is whether this was deliberate.

    Just to clarify, you are thinking that the

    The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015

    Needs an amendment to include all tenancies in existence after Oct 1st 2018?

    and maybe something for the 28 Gas Snafu

    My understanding was that it was going to be retrospective to all tenancies in force after Oct 2018, not sure I even spotted the 5(2) exclusion for SPT’s in (2)

    I have to say that S41 does seem to be designed as catch all loop by (3)

    in Plain English

    1 Subject to 2 & 3 Only new tenancies
    2 Subject to 3 Excludes SPT’s pre Oct 2015
    3 After 3 years ALSO applies to anything that exists and which was previously excluded

    So the intent seems clear,

    41 Application of sections 33 to 40

    (1) SUBJECT TO SUBSECTIONS (2) AND (3), a provision of sections 33 to 40 applies only to an assured shorthold tenancy of a dwelling-house in England granted on or after the day on which the provision comes into force.

    (2) SUBJECT TO SUBSECTION (3), a provision of sections 33 to 40 DOES NOT APPLY to an assured shorthold tenancy that came into being UNDER SECTION 5(2) OF THE HOUSING ACT 1988 AFTER THE COMMENCEMENT of that provision and on the coming to an end of an assured shorthold tenancy that was granted BEFORE THE COMMENCEMENT OF THAT PROVISION.

    (3) At the END OF THE PERIOD OF THREE YEARS beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision ALSO applies to ANY assured shorthold tenancy of a dwelling-house in England—

    (a) WHICH IS IN EXISTENCE AT THAT TIME, and
    (b) TO WHICH THAT PROVISION DOES NOT OTHERWISE APPLY BY VIRTUE OF SUBSECTION (1) OR (2).

    :) NOTE: Caps only used to emphasize :)

    Reply
    • Giles Peaker

      The intent of s.41(3) is perfectly clear. It applies sections 33-38 and section 40 Deregulation Act to all ASTs from 1 October 2018.

      S.39 (which is s.21B in HA 1988 as amended) is not so applied.

      But s.38 (s.21A in HA 1988) applies ‘prescribed legal requirements’ which are to be prescribed by regulation – that is the job of the 2015 regulations.

      But those regulations specify only applying to post 1 October 2015 tenancies (leaving out the SPT complication for now).

      Thus, there are no prescribed legal requirements that apply to pre 1 Oct 2015 tenancies from 1 Oct 2018.

      I don’t think this was deliberate because otherwise s.38 could simply have been omitted from s.41(3) as s.39 was.

      Reply
  4. Jules Ford

    HI Giles,
    Well, I’m sure I am having a blonde moment for this.

    So AST pre Oct 2015 that become SPT prescribed legal requirement doesn’t apply
    But all Oct 15 onward, it applies to including any that became SPT?

    I may need a lie down in a dark room

    Reply
    • Giles Peaker

      That is the current position – any tenancy starting on or after 1 October 2015 (including subsequent SPTs) – the prescribed legal requirements apply
      Any pre 1 October 2015 tenancy that then became SPT after 1 October 2015, they don’t apply.

      What happens on 1 October 2018 is, shall we say, unclear – hence the post. Technically prescribed legal requirements will apply to all ASTs (And SPTs) in existence on 1 October 2018. But unless the Regs are changed, there won’t be any specific prescribed legal requirements for pre 1 October 2015 tenancies.

      Reply
  5. KTC

    Form 6A is also prescribed by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 as amended by the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) (Amendment) Regulations 2015, by amending the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015.

    While the Forms Regulations is not restricted, the application restriction in reg. 1 of the Notices and PR Regulations looks to me to apply to the whole Notices and PR Regulations including where it prescribe Form 6A. Does this not mean Form 6A like the prescribed requirements that is subject of this article has only been prescribed for tenancies from 1 October 2015 (excluding SPT etc. etc.) even after 1 October 2018?

    Reply
    • Giles Peaker

      Hmm. Good point. Slightly complicated by the amendment to HA 1988, but yes, that would seem to be the case.

      Reply
  6. Alex Andrews

    Sorry, a little late to this party, but my understanding: by virtue of s.41(3)(b) of DA 2015 ss.33-38 apply to ALL tenancies (including ASTs and SPTs in existence before 1 Oct 2015), but s.38 does not apply to tenancies in existence before 1 Oct 2015 because that is not a requirement of tenancies in existence prior to 1 Oct 2015?

    In other words, s.41(3)(b) makes s.38 apply to tenancies in existence before 1 Oct 2015, but s.38 does not apply to tenancies in existence before 1 Oct 2015? That, to me, is a clear nonsensical contradiction and contrary to the purpose of the legislation. I therefore refer you to the following (from the Robinson-Pierre Appeal Court case):

    In 1848 in Attorney-General v. Lockwood 9 M. & W. 378 Alderson B. at page 398 said
    “The rule of law, I take it, upon the construction of all statutes … is whether they be penal or remedial, to construe them according to the plain literal and grammatical meaning of the words in which they are expressed, >>>unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity<<>>” and “<<<" my emphasis)

    It is absurd for s.41(3)(b) to explicitly state that s.38 applies to all other tenancies if s.38 is not applicable to such tenancies and, as such, s.38 should (since 1 Oct 2018) be applied to ALL tenancies in existence because that is clearly the intended purpose of s.41(3)(b)?

    (Please note: I have no legal training/experience.)

    Reply
    • Giles Peaker

      No. S.38 is only relevant insofar as regulations are made under it specifying the requirements. Those regulations are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, which specify that they only apply to post 1 October 2015 tenancies. There are therefore no prescribed requirements for pre 1 October 2015 tenancies

      (save for form 6A on which issue see the comments to this post on The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 https://nearlylegal.co.uk/2019/05/misc-talking-about-fitness-new-section-21-notice-and-leasehold-shenanigans/ which has put the position beyond doubt.)

      Reply
  7. Alex Andrews

    One further point: pursuant to s.37 of the Deregulation Act 2015 (which created s.8 of the Housing Act 1988 – a prescribed s.21 Notice form) Form 6A (from The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019) is now used to serve a s.21 Notice, and Form 6A replaces Form 6 from The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015, which contains the following:

    Compliance with prescribed legal requirements
    2.—(1) Subject to paragraph (2), the requirements prescribed(b) for the purposes of section 21A
    of the Act are the requirements contained in—
    (a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations
    2012(c) (requirement to provide an energy performance certificate to a tenant or buyer
    free of charge); and
    (b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety
    (Installation and Use) Regulations 1998(d) (requirement to provide tenant with a gas
    safety certificate).
    (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 day period for compliance with that requirement does not apply.

    Requirement for landlord to provide prescribed information
    3.—(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a
    person acting on behalf of such a landlord, must give the tenant under that tenancy the information
    mentioned in paragraph (2).
    (2) The information is the version of the document entitled “How to rent: the checklist for
    renting in England”, as published by the Department for Communities and Local Government, that
    has effect for the time being.

    So, is it the case that in order to use Form 6A to serve a s.21 Notice, the landlord must have complied with ss.2 and 3 of the AST Regulations 2015 *REGARDLESS* of when the tenancy came into existence? In other words, if the landlord has not complied with ss.2 and 3 of the AST Regs (regardless of when the tenancy came into existence) they cannot use Form 6A (they have to serve a s.21 Notice some other way)?

    Reply
    • Giles Peaker

      The notes to form 6A are not statutorily binding.

      And the answer – as above – is no.

      Reply
  8. Alex Andrews

    Just so that I can get this straight regarding pre-Oct 2015 ASTs, by virtue of s.1(3) of the DA, the regulations specified in the DA specifically apply to ASTs in existence from 1 Oct 2015 onwards:

    s.1(3) Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015.

    NOTE: s.1(3) does not state (a) that they *ONLY* apply to post-Sept 2015 ASTs, nor (b) that pre-Oct 2015 ASTs are specifically excluded.

    Then we have s.41(3)(b) which, post-Sept 2018, makes ss.33-38 applicable to *ALL* ASTs for which ss.41(1) and (2) do not apply:

    s.41(3) At the end of the period of three years beginning with the coming into force of a provision of sections 33 to 38 or section 40, that provision also applies to any
    assured shorthold tenancy of a dwelling-house in England—
    (a) which is in existence at that time, and
    (b) to which that provision does not otherwise apply by virtue of subsection (1) or (2).

    And s.41(1) makes ss.33-40 applicable only to post-Sept 2015 ASTs, and s.41(2) makes ss.33-40 inapplicable to ASTs that started pre-Oct 2015.

    s.41
    (1) Subject to subsections (2) and (3), a provision of sections 33 to 40 applies only to an assured shorthold tenancy of a dwelling-house in England granted on or after the day on which the provision comes into force.
    (2) Subject to subsection (3), a provision of sections 33 to 40 does not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 after the commencement of that provision and on the coming to an end of an assured shorthold tenancy that was granted before the commencement of that provision.

    So:
    – s.41(1) makes ss.33-38 applicable to a post-Sept 2015 ASTs
    – s.41(2) makes ss.33-38 inapplicable to pre-Oct 2015 ASTs
    – from 1 Oct 2018 onwards, s.41(3) makes ss.33-38 applicable to all ASTs for which they are not applicable (by virtue of (1) and (2))

    The *ONLY* way that s.41(3) can make ss.33-38 applicable to an AST that is not applicable by virtue of ss.41(1) and (2) is if that AST was in existence pre-Oct 2015. In other words, the specific purpose of s.41(3) is to make ss.33-38 applicable to ASTs in existence pre-Oct 2015, which is a contradiction of s.1(3) *IF AND ONLY IF* s.1(3) is interpreted as the DA *ONLY* being applicable to post-Sept 2015 ASTs and that would clearly be absurd and contrary to the clear purpose of that section of legislation. So, again by virtue of Attorney-General v. Lockwood 1848, s.1(3) is *NOT* to be interpreted as the DA *ONLY* being applicable to post-Sept 2015 ASTs in all situations (ie post-Sept 2018) otherwise s.41(3) is completely pointless.

    Reply
    • Giles Peaker

      No, it is quite simple(ish). S.41(3) Dereg Act makes s.33-38 applicable for pre Oct 2015 tenancies from 1 Oct 2018. But then the question is what those sections actually do.

      S.39 gives the Secretary of State the power to set out prescribed information in regulations. S.38 gives the minister the power to set out prescribed legal requirements in regulations. (So, at the time the Dereg Act 2015 was passed there was precisely no substantive content to s.38 and s.39. That was wholly reliant on regulations being made in the future.)

      The only regulations (save for subsequent The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 with regard to form 6A) are The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015. S.1(3) of the 2015 regulations says:

      (3) Subject to paragraph (4), these Regulations apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015.

      They therefore only apply to those tenancies.

      If s.41(3) Dereg Act had said any regulations made under s.38 and s.39 will apply to all assured shorthold tenancies from 1 October 2018, regardless of any express terms of the regulations, the situation would be different. But it doesn’t and it isn’t.

      No-one is arguing that s.33-38 don’t apply to pre Oct 2015 tenancies from 1 Oct 2015. They do. You are just mistaken as to what that actually means. The minister could have made new regulations (as they did, albeit I think with accidental effect on form 6A being required, in 2019). The minister has chosen not to.

      Reply
  9. Alex Andrews

    Thank you, I think I understand now: DA s.38 *DOES* apply to pre-Oct 2015 ASTs, *BUT* by virtue of s.1(3) of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the Regs” as referenced in DA s.38), the contents of those Regs (which include in s.2 the requirement to provide prescribed information) does not apply to pre-Oct 2015 ASTs.

    Therefore, by extension, Form 6A (which is included as part of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015) *ALSO* does not apply to pre-Oct 2015 ASTs – you can’t have it both ways!

    In other words, pursuant to s.1(3) of the Regs, Form 6A can’t be used to serve a s.21 Notice on pre-Oct 2015 ASTs. *BUT* Form 6A states: “This form must be used for all ASTs created on or after 1 October 2015 except for periodic tenancies which have come into being after 1 October 2015 and which were fixed terms ASTs created before 1 October 2015. This form may nevertheless be used for all ASTs.”

    So on the one hand s.1(3) of the Regs states that Form 6A does not apply to ASTs granted pre-Oct 2015, but on the other Form 6A itself states that it can be used for all ASTs – so presumably the latter means all ASTs that came into being after 1 Oct 2015 whether created as fixed term ASTs pre-Oct 2015 or not?

    The bottom line: pre-Oct 2015 ASTs which didn’t create a SPT post-Oct 2015 can’t use Form 6A to serve a s.21 Notice?

    Reply
    • Giles Peaker

      Nope. Form 6A can be used by anyone. It is a functional s.21 notice. ON the question of whether pre 1 Oct 2015 tenancies now have to use form 6A (whether it is manadatory), see the comments on the post I referred you to before, on the 2019 forms regulations. ( https://nearlylegal.co.uk/2019/05/misc-talking-about-fitness-new-section-21-notice-and-leasehold-shenanigans/ ). Bottom line, the 2019 regs made use of form 6A mandatory for all (possibly by accident).

      Reply
      • Alex Andrews

        Thanks Giles, but I still question this for pre-Oct 2015 ASTs!

        So, s.2 of The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2019 amends Form 6A in the Schedule to Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015(b).

        And s.4(1)(3) of The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015(b) amends the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 by (a) introducing, and (b) making Form 6A (contained in the Schedule to Regs 2105(b)) the prescribed form for s.21 Housing Act notices. However, s.1(3) of the 2015 Regs means that the 2015 Regs do not apply to pre-Oct 2015 ASTs so Form 6A is not the *PRESCRIBED* form for s.21 HA notices for pre-Oct 2015 ASTs.

        In short: 2019 Regs amend 2015(b) Regs which amend 2015 Regs which don’t apply to pre-Oct 2015 ASTs, ie all amendments are to legislation that doesn’t apply to pre-Oct 2015 ASTs.

        Now, you say that Form 6A is a functional s.21 notice, but I have been advised that a s.21 notice needs to state (or needed to previously) whether it is being issued pursuant to s.21(1)(a) or s.21(1)(b), and nowhere on Form 6A is this information stated. So, on that basis, I accept that Form 6A is valid for post-Sept 2015 ASTs (by virtue of being the prescribed form) but I question whether or not it is valid for pre-Oct 2015 ASTs because it doesn’t state whether it is being issued pursuant to s.21(1)(a) or s.21(1)(b).

        Reply
        • Giles Peaker

          Sorry, but no, on all counts.

          The 2019 regs amend the The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015. Those regs contain no restriction to post 1 Oct 2015 tenancies only.

          And the s.21(1)(b) and s.21(4)(a) distinction in notice form vanished with Spencer v Taylor in 2014, and then was abandoned completely in s.35 Deregulation Act (which, of course, applies to all tenancies from 1 October 2018).

      • Alex Andrews

        Sorry – I think in my 8:33pm comment I should have written “s.21(1)(b) or s.21(4)(a)” (not s.21(1)(a) or s.21(1)(b))

        Reply
        • Alex Andrews

          “The 2019 regs amend the The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015.”

          Are you sure about that? The 2019 Regs state:

          “2. In the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations ***2015(b)***, in the Schedule, for Form No. 6A substitute the Form No. 6A set out in the Schedule to these Regulations.”

          Surely the reference to “2015(b)” Regs (ie not 2015 Regs) is to S.I. 2015 No. 1646 (ie not S.I. 2015 No. 620)? And S.I. 2015 No. 1646 does contain s.1(3) which limits those regs to post-Sept 2015 ASTs? (This is a good argument for legislation referring to S.I. numbers, IMO!)

          Although if, as you say, Spencer v Taylor in 2014 obviated the need to stipulate if the notice served is pursuant to s.21(1)(b) or s.21(4)(a) then I guess this is a slightly moot point (any chance you could provide a link for me to that judgment?). But D.A. s.35 does not obviate this need – it removes the period end date requirement, but the notice period is different for quarterly/semi-annual/annual periodic tenancies?

        • Giles Peaker

          Yes, completely sure. You have confused a footnote indicator with a part of the title. The reference (as the explanatory notes make doubly clear) is to S.I. 2015/620. Can we stop now?

          Yes, notice period is different for different tenancy periods under s.21(4). That is expressly dealt with in form 6A. which is expressly for use for both s.21(1) and s.21(4) notices.

        • Alex Andrews

          Sorry Giles, I know I’m starting to annoy you and I really don’t mean to do so but the 2019 Regs amend Form 6A. But Form 6A does not feature in S.I. 620, only in S.I. 1646 (which created it), so the 2019 Regs can only be amending S.I. 1646 which, per s.1(3) of those regs, do not apply to pre-Oct 2015 ASTs. In other words, the 2019 Regs are amending the amended 2015 Regs – which include the s.1(3) limitation by virtue of the previous amendment. I think the (b) footnote makes this point:

          “(b) S.I. 2015/620, ***as amended by S.I. 2015/1646*** (which itself was amended by S.I. 2015/1725), 2016/443, 1118.”

          Form 6A only features in the 2015 Regs for post-Sept 2015 ASTs, so it can only be *AMENDED* for post-Sept 2015 ASTs.

          Please don’t shoot the messenger! 8-)

        • Giles Peaker

          No. SI 1646 inserts a new regulation 3(fa) into SI 620. Here it is:

          4.—(1) The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015(1) are amended as follows.

          (2) In regulation 3 (prescribed forms) after paragraph (f) insert—

          “(fa)for a notice under paragraph (1) or (4) of section 21 informing a tenant that the landlord intends to seek recovery of possession of a dwelling-house let on an assured shorthold tenancy, Form No. 6A;”.

          And then inserts Form 6A in the Schedule.

          (4) In the Schedule (forms prescribed for the purposes of Part 1 of the Housing Act 1988)—

          (a)in Form No. 3, in the instructions, for “There is no form prescribed for these cases, but you must give notice in writing.” substitute—

          “Form 6A ‘Notice seeking possession of a property let on an Asssured Shorthold Tenancy’ is prescribed for these cases.”; and
          (b)after Form No. 6 insert Form No. 6A as set out in the Schedule to these Regulations.

          Note that there is nothing in these amendments to SI 620 that states form 6A is limited to post 1 October 2015 tenancies. It does not include the s.1(3) limitation. But that arguably applied because s.37 Deregulation Act gave the Secretary of State the power to prescribe the form of s.21 notice by regulations, and the 2015 regulations said 1 Oct 2015 and after tenancies only.

          S.37 Deregulation Act is applied to all tenancies from 1 October 2018, but that arguably doesn’t matter for form 6A because the Secretary of State has not prescribed the form of notice for pre 1 oct 2015 tenancies by regulation.

          Now we come to the 2019 regs, which prescribe a form of notice – the new 6A – expressly under the power given by s.37 Deregulation Act, and without limitation to 1 Oct 2015 and after tenancies. It does so by amending SI 620 – which itself has no express limitation on Form 6A requirements to 1 Oct 2015 and after tenancies, because the 2015 prescribed forms regs didn’t add any. So bingo, you have a prescribed form via regulations made under s.37 Dereg Act/Section 21(8) Housing Act 1988, without limitation to 1 Oct 2o15 and after.

          I’m afraid that you are simply wrong that the 2019 regs amend SI 1646. They very clearly and every expressly don’t. You are also simply wrong that SI 602 ‘includes the s.1(3) limitation’. It doesn’t. The previous limitation on the application of the forms regs was simply because s.37 DA/S.21(8) HA 1988 requires a prescribed form to be made by regulation, and SI 2015/1646 only did so for 1 oct 2015 and after tenancies. The 2019 form regs have no such limitation.

          Now you are very welcome to go and try out your argument on a defence for your own tenancy. And the best of luck with it. You will probably need it. Please don’t ty it out on anyone else’s tenancy, because the mechanics of your argument are, I’m afraid, not the way that statutory interpretation works.

        • Alex Andrews

          Sorry, I know you’re going to hate me, but here goes:

          “No. SI 1646 inserts a new regulation 3(fa) into SI 620.”

          Yes, it does – *BUT*, by virtue of s.1(3) of SI 1646, it *ONLY* inserts regulation 3(fa) into SI 620 ***in the context of post-Sept 2015 ASTs***. None of SI 1646 applies to pre-Oct 2015 ASTs because of s.1(3), ie s.4(2) is not applicable and therefore there is no insertion of regulation 3(fa) into SI 620. So, ***when considering pre-Oct 2015 ASTs***, after applying SI 1646 to SI 620 Form 6A does not actually exist and ***neither is Form 6A a prescribed form for s.21 notices*** because 3(fa) doesn’t exist.

          The 2019 Regs then amend SI 620 after it has been amended by SI 1646, and all that the 2019 Regs amendment does is make a substitution of Form 6A, ie it just changes the text of the form. There is certainly nothing in the 2019 Regs which makes Form 6A a prescribed form for s.21 notices, so it still is not a prescribed form for s.21 notices in the context of pre-Oct 2015 ASTs (as it wasn’t prior to the 2019 Regs).

          Everything in SI 1646 is predicated on the condition imposed by s.1(3), and so subsequent amendments are also subject to that predicate unless specifically stated to the contrary – which the 2019 Regs do not.

          Broken down:
          – post SI 620, there is no Form 6A
          – post SI 1646, Form 6A is not a prescribed form for pre-Oct 2015 ASTs (and essentially doesn’t even actually exist for them)
          – post 2019 Regs, Form 6A is still not a prescribed form for pre-Oct 2015 ASTs (and I would argue still does not actually exist for them)

          In short: when considering pre-Oct 2015 ASTs, SI 620 effectively remains unaltered since it hasn’t been amended by SI 1646 so there is no form 6A for 2019 Regs to amend and it certainly does not become a ***prescribed*** form for s.21 notices.

          Don’t worry – I wouldn’t dream of trying to advise anyone else on legal matters!

          Sorry, I know this is going to annoy you but that is the logic of the situation. IMO, this illustrates perfectly the problem of Parliament passing amendments to legislation. I can see why, historically, this is what they did (because it would be a PITA and not practicable to re-draft by hand entire pieces of legislation just for small changes) but for a long time now we have had the technology to do so (word processors). Parliament should therefore enact entire pieces of legislation as amended (rather than just the amendments themselves) and eradicate this source of confusion/non-determinism. IMHO, of course 8-)

        • Giles Peaker

          Again no.

          The amendments to SI 620 do not in any way restrict 6A to 1 Oct 2015 and after. There is nothing at all in the wording that is inserted into SI 620 that has that limitation.

          The reason that the requirement to use form 6A was originally limited to 1 Oct 2015 and after was that SI 1646 was made under the powers given to the SoS in S.21(8) HA 1988 (the s.37 Deregulation Act amend) and that SI 1646 limits the prescription of the form 6A to 1 Oct 2015 and after tenancies.

          So, form 6A is there in SI 620, for everyone, but the prescription of the form is limited because of SI 1646.

          Now comes SI 915/2019. This is also made under s.21(8) HA 1988 powers, as it expressly says. So, it is an SI expressly to prescribe the form of notice. It is made at a time (after 1 Oct 2018) when s.37 Deregulation Act (and so s.21(8) HA 1988 applies to all ASTS, by virtue of s.41 Dereg Act.

          Crucially, SI 915/2019 contains no restriction on which tenancies (pre or post 1 Oct 2015) it applies to. Therefore it applies to all, because that is the effect of s.28(1), and the wording of SI 620 also has no restriction.

          If such a restriction had been intended, then the 1646 amends to 620 would have ‘for a tenancy commencing on or after 1 October 2015’ to the new (fa).

          Your version of SI 620 doesn’t make sense. You cannot have clear wording of an SI which is both there or not there. What you can have is wording which is there for all, but the effect of which is limited by another SI. (Until it isn’t, because of another SI)

          Legislation.gov.uk does display legislation as amended. They are somewhat behind in applying the amends in some/many cases – underfunded – and SI 620 is one of those that hasn’t been updated.

  10. David

    Having read the article linked, can I ask why you think it makes Form 6A apply to pre October 15 tenancies (especially as the form clearly says it does not have to be used for pre Oct 15 tenancies)?

    Reply
    • Giles Peaker

      Section 37 Deregulation Act 2015 applies to all ASTs after October 2018 – Secretary of State may by regulations prescribe the form of notice.
      The 2019 regulations say made in exercise of powers under s.21(8) Housing Act 1988
      S.21(8) says “The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England.”
      So, there we are, the Secretary of State has prescribed the form of notice, and there is no restriction to post October 2015 tenancies, as there arguably was in the 2015 AST regulations.

      What the form actually says on it is, I’m afraid, irrelevant.

      Reply

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