With grateful thanks to Oliver Fisher Solicitors for information on this case, which contains a fresh twist on the gas safety certificate and validity of section 21 rules that we have previously encountered here and here.

Kaur v Griffith, County Court at Bromley. 25 July 2019

This was a set aside application of a possession order against Ms G. Ms G was the assured shorthold tenant of Ms Kaur. The tenancy began on a 6 month fixed term on 6 December 2016, and continued as a statutory periodic tenancy on 6 June 2017.  A section 21 notice was later served on Ms G and an order for possession made on 13 June 2019, presumably on the papers under the accelerated possession procedure. Ms G then sought to set aside the order.

The defence raised primarily concerned gas safety certificates.

Ms K asserted that a gas safety inspection was done on 6 December 2016 and a copy of the certificate given to the tenant on that date, which was the date of signing of the tenancy agreement. Ms G denied receiving the certificate.

Ms K also asserted that a further gas safety check was done on 21 January 2018, with the certificate given on that date. Ms G denied receipt.

However, counsel for Ms G also argued that the section 21 notice could not be validly served because the second gas safety check was not carried out within 12 months of the previous one, as required by regulation 36(3) of the Gas Safety (Installation and Use) Regulations 1998 which meant that the requirements of reg 36(6)(a) had not been met. Therefore the section 21 could not be served because of the requirements of Reg 2(1)(b) of The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

The District Judge accepted this argument on the lateness of the second check and set aside the possession order.

Comment

Para 2(1)(b) of the AST Regulations sets out the prescribed legal requirement of compliance with

paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (requirement to provide tenant with a gas safety certificate).

This is modified by para 2(2)

(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.

Para 36(6) of the Gas Safety Regulations states, so far as relevant

(6) Notwithstanding paragraph (5) above, every landlord shall ensure that—

(a) a copy of the record made pursuant to the requirements of paragraph (3)(c) above is given to each existing tenant of premises to which the record relates within 28 days of the date of the check;

And para 36(3) states:

(3) Without prejudice to the generality of paragraph (2) above, a landlord shall—

(a) ensure that each appliance and flue to which that duty extends is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety (whether such check was made pursuant to these Regulations or not);

(b) in the case of a lease commencing after the coming into force of these Regulations, ensure that each appliance and flue to which the duty extends has been checked for safety within a period of 12 months before the lease commences or has been or is so checked within 12 months after the appliance or flue has been installed, whichever is later; and

(c) ensure that a record in respect of any appliance or flue so checked is made and retained for a period of 2 years from the date of that check, which record shall include the following information—

(i) the date on which the appliance or flue was checked;
(ii) the address of the premises at which the appliance or flue is installed;
(iii) the name and address of the landlord of the premises (or, where appropriate, his agent) at which the appliance or flue is installed;
(iv) a description of and the location of each appliance or flue checked;
(v) any defect identified;
(vi) any remedial action taken;
(vii) confirmation that the check undertaken complies with the requirements of paragraph (9) below;
(viii) the name and signature of the individual carrying out the check; and
(ix) the registration number with which that individual, or his employer, is registered with a body approved by the Executive for the purposes of regulation 3(3) of these Regulations.

The question raised by this case is whether para 2(1)(b) of the AST Regs includes the ’12 month’ requirement of para 36(3)(a) of the Gas Safety Regs, or to put it another way, whether one can comply with para 36(6) of the Gas safety Regs without complying with para 36(3)(a).

Now para 36(6)(a) simply requires provision to the tenant of the safety certificate made under the requirements of 36(3)(c) within 28 days of the date of a check (and that 28 day limit is itself disapplied for s.21 purposes by para 2(2) of the AST Regs).

Para 36(3)(c), as set out above, requires that the record of gas appliances, flues etc ‘so checked’ is kept for two years.

As far as I can see, any linkage between the ‘every 12 months’ requirement and para 36(6)(a) can only be through that wording of ‘so checked’ in 36(3)(c), because 36(3)(c) in itself has no time limit requirements.

But, firstly the wording of para 3 overall unclear here – it is para 36(3)(b) that ends with an ‘and’, so would be the logical back reference of ‘so checked’ in 36(3)(c), while para 36(3)(a) – the 12 monthly requirement – does not end with an ‘and’. Secondly, if para 36(3)(c) did import the time limits, it would mean that a gas safety certificate for a late check would itself not be valid for the subsequent 12 months (as not complying with 36(3)(c). And that is clearly not the case.

Now I may well have missed an important line of argument. It would hardly be the first time. But after wrestling with it, I think this decision is probably wrong.

If it isn’t wrong, then the question is does the next Gas Safety Cert, if done within 12 months of the errant late one, rectify the position, so a s.21 can be served? And the answer to that would have to be yes, as it would satisfy 36(3)(a). So, the simplest answer would be, if a gas safety check was done late, after the 12 months, to have another one done as soon as possible (as there is no minimum time requirement to have elapsed for one to be done), then serve a section 21.