We’ve been here before – MHCLG putting out versions of notice forms that were different to the statutory prescribed version, causing all sorts of lawfulness issues. This time (and I’ll confess I hadn’t picked it up at the time, because of not paying enough attention to notices to terminate fixed term secure tenancies), there may be consequences following on from a dual error. I’ve set out the full MHCLG note below, but in short it appears that:

a) The prescribed s.83/Schedule 2 Housing Act 1985 notice as from 1 June 2021 (set out in the statutory instrument) gave too long a notice period, as it did not take into account the changes to notice periods under The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021

b) The version that MHCLG put on the gov.uk site did have the ‘correct’ notice periods, but of course it was not the statutory prescribed form.

Now, the MHCLG note below says that this has all been rectified by statutory instrument 2021/946, but as yet, there is no sign of that SI on the Parliament or legislation.gov.uk sites, so the note may be a little bit premature…

MCHLG’s suggested options for landlords who served notices between 1 June 2021 and 24 August 2021 (tomorrow?) are basically to either re-serve, or to plead for the mercy of the court with regard to the defective notice.

The note in full:

Note from MHCLG

Notice periods in termination of tenancy and recovery of possession proceedings under Section 83 Housing Act 1985

This note is to inform you of an issue with the form ‘Part II Notice of Seeking Termination of Tenancy and Recovery of Possession’ used by landlords to seek possession of accommodation let on a fixed-term tenancy on one or more of the grounds in Schedule 2 of the Housing Act 1985.

Between 1 June 2021 and 23 August 2021, the prescribed form of notice did not correctly reflect the relevant notice provisions under the 1985 Act (as amended by Schedule 29 of the Coronavirus Act 2020). The prescribed form did not incorporate the changes to notice periods made by Statutory Instrument (SI) 2021/564 and accordingly provided for longer notice periods than were required under the legislation.

Further, an incorrect version of the above form, one which did incorporate the provisions of SI 2021/564, was published on the gov.uk website. The prescribed form was amended by SI 2021/946.

The incorrect form has been removed from the website and from 24 August 2021 the new prescribed version of the form is available to download.

We have notified HM Courts and Tribunals Service and the Judiciary of this issue. If you have served a Section 83 notice in relation to a fixed-term secure tenancy between 1 June 2021 and 24 August 2021, we suggest that you:

• Check to see whether you used the prescribed form or the incorrect form, as described above.
• If you have used the prescribed form, consider whether you want to proceed based on the lengthier notice period given, or whether you want to take steps to try and rely on the shorter notice period that should have been provided for.

If you have used the incorrect form:

• Consider whether any steps can be taken before a hearing to mitigate the potential effect.
• Ensure that use of the incorrect form is brought to the attention of the Judge at the hearing.
• Consider requesting the Judge to make a finding as to the form being substantially to the same effect as the prescribed form.
• Consider requesting the Judge to exercise their discretion to dispense with service of the prescribed form.