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It is a Friday, so new regulations made – form 3/section 8 notice. It doesn’t work.

Admittedly slightly earlier on a Friday than we have come to expect, but still on a Friday to come into force the next working day, come The Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021.

These regulations amend the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 to insert a new form of Form 3 (the section 8 notice) which incorporates references to debt breathing spaces and moratoriums as introduced by the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (S.I. 2020/1311) which come into force on 4 May 2021.

The new form 3 comes into force on 4 May 2021.

Straightforward? No, there are problems. Of course there are problems….

First, let us note in passing (as we have before), the sheer nonsense of making regulations for a new form of prescribed notice (ie, it must be used) on the last working day before it is due to come in to force. It means that technically (indeed strongly arguably) any section 8 notices in the current form 3 that were sent  by post on Thursday 29 April, or today, Friday 30 April, will be invalid on the day of deemed service, 4 or 5 of May, as then not in the prescribed form. It would be a simple thing to ensure that regulations such as this were laid say at least a week before coming into force, to mitigate such nonsense (and to stop defendant solicitors/duty scheme people having to remember all these ridiculous snippets of dates of invalidity).

Second, and I hope you are feeling strong, or at least relaxed, ahead of this, because this will test you…

The new form 3 contains in its notes a list of the earliest dates proceedings could be brought. This list (below) has the pre-Coronavirus Act 2020 notice periods, with additions for ‘breathing spaces’.

On the other hand, the six month (with some exceptions) notice period applied via Schedule 29 Coronavirus Act 2020 as amended by SI 2020/914 – The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 – reg 3(6), continues until 31 May 2021 (as subsequently extended from 31 March but not otherwise amended by yet further regulations)

Now, (brace yourselves), the Coronavirus Act and SI 2020/914 reg 3(11) don’t amend the prescribed forms, they say:

for the first and second bullet points there were substituted— (there follow 5  bullet points on notice periods, see reg 3(11) here.)

The problem is that new form 3 changes bullet points 1 and 2. Here is the old first two bullet points


Old bullets

And here are the new ones:

new bullets

Upshot – it is from 4 May (and until 31 May 2021) impossible to ‘read’ the prescribed form 3 as if it actually included the new first two bullet points (including the reference to the breathing space), by operation of the Coronavirus Act Schedule 29 (as amended), which continues to override ‘the first two bullet points’.

So what is is a proper form 3 notice as of 4 May and how is it ‘to be read’ in terms of notice periods? Who knows! And these notes are supposed to explain to a tenant when proceedings might be brought!

(If MHCLG do as they did with other notices and publish their own bastardised form incorporating the 6 month notice period in the notes, it is hard to see how that can actually be a statutorily valid Form 3 – it cannot comply with both these regulations for a prescribed form and the ‘read as if’ provisions of the Coronavirus Act.)

The ‘breathing space’ regulations have been out for some months now. The extension of the the six month notice period from 31 March to 31 May was announced over a month ago. Someone has had at least 6 weeks or so to figure out a way not to mess this up, but somehow, didn’t. The rest of us have had an afternoon to figure out the problems, and consider workarounds that don’t work. Can we not keep having to do this please?

(Update – on 4 May 2021, MHCLG released their own version of Form 3. This attempts to cover both the breathing space regulations and the Coronavirus Act notice period in the ‘Notes on the earliest date on which court proceedings can be brought’. Unfortunately it is a) not the prescribed form – which is, well, prescribed – and b) still doesn’t work when read with the Coronavirus Act requirement to ‘read as if bullet one and two say…’. So, as far as I can see, the MCHLG published form is not actually lawful. Whether it will be accepted as ‘substantially to the same effect’ is going to be a matter for individual judges, and as such, a bit of a gamble. This is not what one needs from an ‘official’ form.)

 

 

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.

11 Comments

  1. TheJumpingJake

    Welcome to the new style MHCLG modus operandi – well not actually new, they gave up on any degree of competence, quality control and reasonable notice several years ago. Luckily the the tenant’s do not generally read these forms properly so will probably fail to notice. If MHCLG were a private sector operation, they would have been sued or closed down for incompetence quite a while ago.
    Giles, you have the unenviable task of decyphering this load pile of poo into something lawyers can work with. I can only say, as a landlord, that I am so pleased to have have made my exit the sector – housing law is in crisis, landlords have been largely abandonned from government support and UK housing is becoming increasingly polarised between the haves and the poor souls who can no longer afford to buy at 10x average earnings. A huge rethink is overdue for housing – which is after all a basic human need.

    Reply
  2. John

    It looks like Baldricks cunning plan has come to fruition, a system that is now so hopeless that Section 8 applications are effectively blocked from proceeding.

    Reply
  3. Claire Pearce-Crawford

    whats frustrating is Wales is so far behind! No doubt they will change our notices, but why does it have to be so different!

    Reply
  4. Michael Barnes

    Is there also a problem with the first bullet which refers to “paragraphs 2 to 6 below” when there are no numbered paragraphs, and “paragraph 2 below” appears to refer to the first paragraph below?

    Reply
    • Giles Peaker

      Not so much, to be honest. That would at least be construable,

      Reply
      • DT

        Have the new Regs to remedy this now come out? I note there is a difference with the new Form 3 which is now available from the .gov site which incorporates the Coronavirus Act 2020 amendments but makes no reference to the breathing spaces Regs in the Schedule to the Debt Moratorium Condsequential Amendments?

        Reply
        • Giles Peaker

          MHCLG have now released their own version with the breathing space notes. Which is fine in terms of what it says, but not actually lawful as a prescribed form…

  5. DT

    Thank you for replying – but where does that leave those wanting to serve a s8 notice if what the MHCLG has released cannot be called a lawiful prescribed form?

    Reply
    • Giles Peaker

      It leaves people having to take a chance on ‘substantially to the same effect’. Which might be OK, but would be up to the Judge.

      Reply
    • Giles Peaker

      Taking a punt on whether a court will accept it is ‘substantially to the same effect’, I’m afraid.

      Reply
  6. Simon Vollans

    The MHCLG version isn’t even correctly worded. Under “Notes on the earliest date…” fourth paragraph,
    there is apparantly a “despite respite scheme.” Confidence inspiring stuff!

    Reply

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