Birmingham City Council v Bravington (2023) EWCA Civ 308
A quick one – A possession claim under s.84A Housing Act 1985 requires service of a notice under section 83ZA. In this case:
The respondent, Mr Drew Bravington, has since 2018 had a secure tenancy of a flat at 9 Clunbury Road, Northfield owned by the appellant, Birmingham City Council (“the Council”). In 2019, however, Mr Bravington was convicted of offences of racially/religiously aggravated intentional causing of harassment/alarm/distress contrary to section 31(1)(b) of the Crime and Disorder Act 1998 and having an article with a blade or point in a public place contrary to section 139 of the Criminal Justice Act 1988. In the light of those convictions, the Council sought to serve on Mr Bravington a “notice of seeking possession” (“the Notice”) in which it was explained that the Council intended to apply for a possession order on the strength of section 84A of the 1985 Act. A certificate of service explains that service was effected at 9 Clunbury Road on 3 January 2020 by handing the letter containing the Notice to “Shazana Ellis (girlfriend of D. Bravington)”.
In possession proceedings, Mr Bravington denied having received the notice before the claim was served. At first instance and first appeal, Mr Bravington was successful. Birmingham on a second appeal argued that section 233 Local Government Act 1972 applied to service of the notice and it had been properly served.
Section 233 provides, so far as relevant:
“(1) Subject to subsection (8) below, subsections (2) to (5) below shall have effect in relation to any notice, order or other document required or authorised by or under any enactment to be given to or served on any person by or on behalf of a local authority or by an officer of a local authority.
(2) Any such document may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
…
(4) For the purposes of this section and of section 26 of the Interpretation Act 1889 (service of documents by post) in its application to this section, the proper address of any person to or on whom a document is to be given or served shall be his last known address, except that—
(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;
(b) in the case of a partnership or a person having the control or management of the partnership business, it shall be that of the principal office of the partnership;
and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
…
(7) If the name or address of any owner, lessee or occupier of land to or on whom any document mentioned in subsection (1) above is to be given or served cannot after reasonable inquiry be ascertained, the document may be given or served either by leaving it in the hands of a person who is or appears to be resident or employed on the land or by leaving it conspicuously affixed to some building or object on the land.
…
(9) The foregoing provisions of this section do not apply to a document which is to be given or served in any proceedings in court.
(10) Except as aforesaid and subject to any provision of any enactment or instrument excluding the foregoing provisions of this section, the methods of giving or serving documents which are available under those provisions are in addition to the methods which are available under any other enactment or any instrument made under any enactment ….”
The Court of Appeal held that s.233 did apply to pretty much any notice to be served by a local authority, including s.83ZA notices
In the first place, and most importantly, it seems to me that, read naturally, the language of section 233 of the 1972 Act suggests that the provision applies to any notice, order or other document which a local authority gives to or serves on any person where that is required or authorised by or under any enactment unless (a) the document is one to be given or served in Court proceedings (see section 233(9)) or (b) a provision of an enactment or instrument excludes section 233 (see section 233(10)). Section 233 does not on its face limit its application to circumstances in which a local authority might be said to be acting “qua local authority” or exercising a public law function.
Secondly, it is not apparent that holding section 233 of the 1972 Act to apply generally to notices and other documents which are required or authorised under enactments, and not merely where a local authority is acting “qua local authority” or exercising a public law function, would give rise to unsatisfactory consequences which Parliament would not have intended. Mr Drabble pointed out that, if section 233 were held to be applicable as regards the service of notices under sections 83 and 83ZA of the 1985 Act, local authorities would be in a better position than other landlords. In particular, a local authority could avail itself of section 233 even though (a) entities other than local authorities can potentially be landlords in respect of secure tenancies and so wish to serve notices under section 83 and 83ZA and (b) by section 8 of the Housing Act 1988, landlords of premises let on assured tenancies (who cannot be local authorities but include, for example, housing associations) are similarly obliged to serve a notice in advance of possession proceedings. However, there is no necessity to treat all landlords in the same way as regards service requirements. As Mr Manning noted, local authority and other landlords are not competitors in a market.
On the question of whether service under s.233 had been effected, contra R v Bromley London Borough Council, ex p Sievers (1980) P&CR 294 (on service on a local authority under s.231 LGA 1972), the Court of Appeal held that dropping a letter in a letter box would be good service, and in any event, the correct test was
a document will be “left” at an address for the purposes of section 231 or section 233 of the 1972 Act if it was left there “in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice was addressed, would adopt”.
Giving the notice to someone at the property who identified themselves as the tenant’s partner and accepted the letter was such a manner.
It was not relevant whether the tenant had actually received the notice or not.
Appeal allowed, and presumably matter remitted to the county court for the remainder of the possession claim.
Comment
Worth noting on issues of service of notice by local authorities, as applies generally, not just section 83ZA.
I think that this decision is probably wrong . The purpose of S233 LGA 1972 and its predecessors provisions is to allow authorities when carrying out local authority functions rather than acting as a landlord. The grounds on which the CA distinguish this from DEvenish are spacious as the 4 week NTQ is a requirement of statute under S5 PFEA 1977 in respect of what was a weekly tenancy . It should also be remembered that there was no special local authority form of tenancy until 1980 eight years after LGA 1972. Prior to that local authority tenancies were either unprotected or up to 1954 protected by the Rent Acts – in both cases a notice to quit was required. It is rather remarkable that a function as a landlord was now to be included eight years on – or indeed in respect of an absolute possession ground over 40 years on.
But Devonish decided on basis that the NTQ was not statutorily required. And introduction of secure tenancies in HA 1980 could have excluded s.233 LGA if intended.
A bit difficult to read moments on here on my screen but that should obviously include to meet a lower test in the second sentence and the word is specious not spacious !