Various notes, including the possession claim mediation pilot, a ‘no DSS’ discrimination case, a service charge payability case, and a finding on the requirements of a statutory Environmental Protection Act notice before prosecution.

MHCLG have (slightly oddly, as the pilot scheme started in February) put up guidance on the Housing Possession Mediation Service. To be honest, it doesn’t really say a lot, apart from the need for both parties to agree to go to mediation – which is always the likely stumbling block – and the court to deem the case suitable (on which there are no details). Still, good luck the pilot, and I very much hope results of the pilot scheme are published.

Shelter have announced another win for a prospective tenant in a discrimination claim against letting agents for a ‘no DSS’ policy. In Hayley Pearce v Michael Jones & Company and Ms Valerie Quick (2021) (no judgment available yet, link to Shelter post on the case), the court held – apparently by consent after agreement was reached at the door of court – that

‘The First and Second defendants unlawfully indirectly discriminated against the claimant on the ground of sex contrary to section 19 and 29 of the Equality Act 2010 when the first defendants former trainee informed the claimant that people in receipt of benefits would not be acceptable to the second defendant.’

Damages of £4,500 and legal costs for the claimant.

H Stain Ltd v Richmond (2021) UKUT 66 (LC) – a lease clause that, on advance service charges required:

not less than one month’s notice of such advance payment or contribution is given to the Tenant.

was found by the Upper Tribunal to have meant exactly that. A demand that stated ‘payment within 30 days of date of demand’ and that could at the very best have given 29 days notice in August 2015 did not mean the demand was payable as not validly demanded. The county court money claim based on the demand would therefore fail.

Allan v LB Ealing (2021) EWHC 948 (Admin)

Was a notice served by a tenant under s.82(6) Environmental Protection Act 1990 valid where it had been sent to “the London Borough of Ealing” but not to any identified person or department? The Magistrates Court had found the notice was not valid so the court had no jurisdiction on the information laid. This was an appeal by way of case stated. The questions from the District Judge in the Magistrates Court were:

i) Was I correct to find that a Notice under section 82(6) of the EPA must, by section 160(3) of the Act, be served on or given to the Clerk or Secretary of a Body Corporate or any identifiable person or Department of the Body Corporate, (given the 21 day time limit to respond to such a Notice)?

ii) Was I correct to find that proper Service of a Notice was not proved (and the Complaint/Summons must be dismissed) in circumstances where, notwithstanding the provisions of section 160(3) of the Act, the prosecutor contends that s/he can prove actual/physical receipt of the Notice at the Body Corporate’s proper address?

The High Court (Admin) allowed the appeal.

Firstly, s.160 EPA was permissive, not mandatory

In Knight v Goulandris itself, it was accepted by counsel for the appellant that the use of the word “may” in section 15(1) is some indication that the provisions which follow were intended to be permissive only. Patten LJ continued, at paragraph 33:

“But as with any statutory provision it is necessary to have regard to the totality of the relevant provisions and to construe them by reference to the regime which they were intended to facilitate. As part of that process, one needs to take into account any contra-indications in the language of the section itself.”

Patten LJ considered section 15 of the 1996 Act and decided that neither the statutory framework nor the language of the section required the word “may” to be given a different meaning from the meaning it was given in cases such as Hastie and Jenkerson. At paragraph 37, he said that the cases he had reviewed, although dealing with other statutory provisions or contract terms, provided at least highly persuasive authority at Court of Appeal level for construing section 15 in the same way.

In our judgement, the same reasoning applies to section 160 of the EPA 1990.

Drawing the strands of these authorities together, they support the conclusion that section 160 is permissive rather than mandatory. That was part of the ratio of the decision in Hewlings, which is to be preferred to the obiter passage in Leeds. Knight v Goulandris itself, and the cases there referred to, amount to highly persuasive authority at Court of Appeal level for construing section 160 as being permissive. This approach is also consistent with the general guidance given by the Divisional Court in Fairless, Pearshouse and Ireland, to the effect that an over-technical approach to section 82(6) notices should be avoided.

Secondly, on the facts of this case, service on ‘London Borough of Ealing’ was good service:

There is no justification, in our view, for reading in words to section 160(2) so as to impose an additional requirement that service is only valid if the notice is given or addressed to someone in authority, or the person or department responsible for dealing with notices. Mr McDermott acknowledged that he was inviting the court to read words into the section, but he said that this was necessary in order to achieve consistency with the statutory purpose. Otherwise, he submitted, in a large body corporate, a notice might easily be lost or overlooked and this would mean that the body corporate would not benefit from the period of advance notice that the statute provides for its protection.

We do not accept that it is necessary, or indeed permissible, to read words into the statute in this way. Moreover, we do not accept that the interpretation of section 160 which we favour imposes undue hardship upon large bodies corporate such as the Council. The Council is no more hindered by receiving a notice addressed to the “London Borough of Ealing” at its principal office than it would be by receiving such a notice addressed to “The Secretary or Clerk, London Borough of Ealing” at the same address. So far as we are aware, the Council does not have anyone whose post is Secretary or Clerk.

An employee of the council, ‘Mark’, had accepted service by recorded delivery and signed for it.

In our judgement, the evidence, limited though it is, leads to the conclusion that Mark had express or implied authority from the Council to accept correspondence sent by Royal Mail Recorded Delivery on behalf of the Council. He was the one who signed for such letters at the Council’s principal offices. The known facts do not realistically accept of any other explanation for Mark’s actions. The alternative possibility that Mark was a passing busybody who took it upon himself to sign for the Recorded Delivery letter (and was permitted by the Royal Mail employee to sign on behalf of the Council) is unrealistic.

Comment

This is perhaps now of largely historic interest, now that Fitness for Human Habitation is in force generally, as why would anyone pursue a private prosecution when the comparatively straightforward and less risky approach of a county court claim is available and may well achieve better results. But the notice in this case dated from August 2019, and Fitness only came into force on 20 March 2020 for periodic tenancies that pre-dated 20 March 2019, so there was a logic in this appeal.