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
And here are the new ones:
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.)