Barakzai and Barakzai v Fenech and Fenech (19th September 2024, District Judge Jenkins, Brentford County Court). (Unreported)
Our thanks to Tom Morris of Landmark Chambers, Richard Mahal and Jacqueline Hovell of Duncan Lewis for the note of this judgment.
This might be an issue with a limited life span, if the Renters’ Rights Bill comes into force in the first half of next year, as seems possible, but for now the vexed issue of gas safety certificates and the validity of section 21 notices rumbles on. The issue in this case was whether the GSCs served by the landlord were valid under Regulation 36(3)(c) of the Gas Safety (Installation and Use) Regulations 1998. There is also an address to the issue of whether a landlord needs to serve a GSC within 12 months of the previous inspection. Usual caveats apply – first instance County Court District Judge decision so not binding or precedent.
The Fenechs were the assured shorthold tenants of the Barakzais, with a tenancy that had begun in 2014 and there had been a series of subsequent tenancies.
Following an unsuccessful section 21 possession claim, the Barakzais had served a bundle of documents including EPCs, how to rent guides, deposit protection materials and GSCs from 2013 onwards. They then served a fresh section 21 notice and brought possession proceedings.
At trial, the only issue was the gas safety certificates.
Between 2013 and 2017, the GSCs all bore the printed name of the engineer and their registration number. There was no separate signature. They looked like this.
“This safety record is signed by electronic signature by Print name (name printed)”
There was no signature.
From 2018, British Gas conducted the gas safety inspections. The forms all looked like this (British Gas standard form):
“This safety record has our engineer’s electronic signature: Engineer name: (name printed)”
Again, there was no separate signature.
In addition, the 2016 GSC omitted the landlord’s name and address, and at leats one GSC was dated more than 12 months after the previous one.
The tenant argued:
i) The GSCs were unsigned. Reg 36(3)(c) required “the name and signature of the individual carrying out the check”.
ii) The omission of the landlord’s name and address on the 2016 GSC invalidated it, as also required under the regulations; and
iii) It was a requirement for the gas safety inspection to be carried out within 12 months of the previous one.
The landlord argued that the GSCs were signed, and that it was standard practice for British Gas to fill them in in this way (though without evidence as to that).
If, alternatively, the GSCs were not signed, it didn’t matter as the statutory point – to identify the gas engineer – was met, relying on Lowe v Governors of Sutton’s Hospital in Charterhouse (2024) H.L.R. 29 (our note) and Northwood (Solihull) Ltd v Fearn (2022) 1 W.L.R. 1661 (our note).
It is not part of the prescribed requirement under s.21A of the Housing Act 1988 that a landlord must carry out a check within 12 months of the last and give the tenant a record of that check, relying on Trecarrell House Ltd v Rouncefield (2020) 1 WLR 4712 (our note).
The 2016 GSC was by the by as the landlord could rely on the most recent served.
The District Judge held:
i) None of the GSCs were signed. The earlier records left a large blank space after referring to the electronic signature, so objectively, the printed name would not be understood to be a signature. The British Gas standard form had a far smaller gap for a signature, but it was significant that there was a colon after ‘This record has our engineer’s electronic signature’. This indicated that it would be signed. The printing of the engineer’s name could amount to a signature, but there was no evidence as to when the printed name and registration number had been added to the record. On balance they could not be found to be signed.
ii) The purpose of a signature under reg 36(3)(c) was not merely to identify the engineer, but that the engineer had authenticated the record, and its accuracy. Strict compliance was required for the GSC to be valid.
On this basis, the landlord had failed to comply with the prescribed requirement under section 21A Housing Act 1988 and the section 21 notice was invalid.
On the service of a GSC within 12 months of the previous one, the comments by Patten LJ in Trecarrell to the effect that this was not a requirement for service of a section 21 notice were found not to be obiter, but to decide the point conclusively.
Comment
Is there no end to the GSC issues? (Well, hopefully there will be within the next 12 months). This is, of course, not a binding decision in any way, but it is an indication that the argument can be run and won at first instance.
On the signature point, I think it has to be right that a signature is an attestation as to accuracy, not merely an identifier of the engineer.
But a printed name could work perfectly well as a signature if it was added at the time of the inspection, rather than being pre-filled as part of the pro forma for the certificate. It was, it appears, at least in part the absence of any evidence as to when and how the printed name was added (or indeed the certificate generated), that appears to have doomed the landlord in this case.
I can’t but think that hanging the validity of a section 21 notice on the vagaries of gas engineers’ operating practices is not the best way to ensure a landlord’s compliance…
(Incidentally, the landlord may be quite happy about the Renters’ Rights Bill, because if Byrne v Harwood-Delgardo (our note) is right, they will not be able to serve a section 21 notice ever again.)
So if i am right in reading the ONLY way to remedy this is to get a new gas safety and make sure it’s signed and name printed .
Or like you say this landlord can never serve a section 21 again (although will be redundant by next year )
No, because that doesn’t remedy the problem of not having a valid GSC at the time the tenant went into occupation (if that was after 1 October 2015 – not the case here), or, as here, likely for the subsequent tenancies, though that is not a tested point.
We always understood that the landlord was only required to keep the last two annual certificates. Is that no longer within regulations?
The gas safety regs only require the last two, but this is a practical issue, not a regulatory one. If you are going to have to evidence having a valid GSC at the time the tenant went into occupation, for example, you need to hang on to it!
What is difficult about keeping a GSC for each year? At least it shows efficiency, honesty meticulessness. Perhaps, if like me you find “paper” to be the bane of your life, you can scan the GSCs and email them to yourself. Giles, at Court is presentation of scans acceptable at Court?
I scan all mine in but I can’t always get to the property and get the original but I make sure they always send a photo to me before I pay.
For the paper copies , I have a shoe box under my bed , every time I get a GSC in the box it goes (hopefully never to be seen again )
I appreciate that the Judge didn’t need to make any findings on this, but did the Judge say anything about the failure to include the landlord name and address? This is the most common defect I find in GSCs, although I’m not sure how I would feel about running an entire defence on that sole point.
Not in the note I saw – I suppose having found them all invalid, it didn’t need specific address. But it is a breach of the reg 36 requirements.
A proper signature is not only important for the reasons stated above but because it often highlights forgeries, people’s signatures are never identical so comparing with software will highlight this.
I have had numerous cases where a Gas Safety Certificate were forged, some by the Landlord and some by actual Gas Safe Engineers, when I drilled down to get confirmation from one I found they were pending suspension, so not their first offence. I always verify them and I start by asking the number range they were using at the time.
It is always worth scanning and zooming into certificates, often there is a mark they made on the one 3 years earlier that is duplicated, or you can see where they tried to stitch different versions together.
As for the wider issue, isn’t it time that rather than preventing eviction notices being valid that we introduce fines for Landlords, gas failures can kill.
We always delve into GSCs because we have seen photoshopped copies on occasion. London Borough of Waltham Forest ran into a long and protracted case that they won, on a landlord doing just that with I think 4 GSCs at different addresses and on one occasion we defeated a possession claim, where the courts deemed the GSC invalid because the engineer was registered as a company which had dissolved 4 years before the GSC at issue but was still signing off certs under that name
Interesting as soon as it went digital I required that all reports be done manually on site as well and tenants signed for receipt and copies handed to the resident. The e copies and paper copies were compared. Having been warned about the old Corgi and NICEIC regime these and operatives were and are randomly checked and under a duty to disclose in contracts. It has a cost but nowhere near the human cost and you never want HSE and Plod turning up
It’s interesting about having the Landlords Name and Address on, ours only have the Letting Agents name on as they arrange our CP12s. Does this mean we would never have been able to issue a Section 21 ?
Reg 36(3)(iii) says
(iii)the name and address of the landlord of the premises (or, where appropriate, his agent) at which the appliance or flue is installed;
So can probably get away with agent.
So after all this, how would the Landlord evict these tenants now?
I think what is more scary is that a tenant can remain in your property even when you no longer want them there and this will get worse with the new Bill.
I rather think the point of it is that ‘you no longer want them there’ is not to be, by itself, a good enough reason.