Yorkshire Housing Limited v Scott. County Court at Scarborough. 30 October 2024. (Not reported. Copy of the judgment is here.)

A section 21 based possession claim for a ‘starter tenancy’ for the reason of anti social behaviour. It was defended on the basis that the tenant was disabled and that the possession claim was a breach of Article 8, amounted to disability discrimination under the Equality Act 2010 and failed to comply the Public Sector Equality Duty. It was also defended on the basis that the Claimant’s notice extending the ‘starter tenancy’ period was void, that the tenancy had therefore become an assured tenancy and the section 21 notice of no effect.

The starter tenancy began on 21 October 2021, as an assured shorthold tenancy with a period of 12 months. Unless the landlord served a notice extending the period of the AST, it would contractually become an assured tenancy.

On 22 July 2022, the Claimant served an extension notice extending the probationary period of the Tenancy for 6 months from the date of its expiry to 22nd April 2023. A section 21 notice was served on 21 October 2022, requiring possession by 21 December 2022. Following an appeal by the tenant, which was unsuccessful., and subsequent submission of medical evidence by the tenant, the possession claim was issued on 23 February 2023.

The tenancy agreement stated

1.1 On the conversion date (given on page 2), this assured shorthold tenancy will become an assured (non-shorthold) tenancy unless before the conversion date:

1.1.1 We start court proceedings for possession of your home against you; or

1.1.2 We serve a notice on you under section 21 (4) or section 8 of the Housing Act 1988 requiring you to give up possession of your home providing that we start court proceedings for possession of your home against you within two months of that notice expiring; or

1.1.3 We serve a notice on you extending the period this tenancy is an assured shorthold tenancy (called the ’starter period’ in this agreement) by up to six months.

1.2 In any of the circumstances set out in section 1.1.1., 1.1.2 or 1.1.3 above, the starter period will continue until:

1.2.1 Two months after the expiry of the notice referred to in section 1.1.2 above (if this is after the conversion date), or if court proceedings commence,

1.2.2  28 days after we receive written notice that court proceedings (including any appeal) for the possession of your home have been determined (if no possession order is made), or

1.2.3  We serve notice on you converting this tenancy into an assured (non-shorthold) tenancy (called a ‘conversion notice’ in this agreement).’

On the extension notice, the tenant argued:

i) The notice took the starter period extension beyond 6 months (by one day). It was therefore void. The tenancy became an assured tenancy on 21 October 2022 and the section 21 notice was of no effect.

The Court did not accept this.

it is important to have well in mind the context of the evident purpose of the requirement of a notice in the prescribed form. If, notwithstanding errors or omissions, the substance of the notice is sufficiently clear to the reasonable person reading it, the notice is likely to serve its purpose – White v Chubb, Ravenseft Properties Ltd v Hall, Freeman v Kasseer (2001) EWCA Civ 2034

(…)

I consider that the substance of the EN is sufficiently clear for its purpose. A tenant would know from reading the notice that they are not being granted an assured tenancy at the end of the starter period, and the reasons why. They would know that the probationary period was to be extended for a period of 6 months, and that the same terms and conditions of the Tenancy would continue to apply. At the end of 6-month period following the extension, the Tenancy would automatically become an assured tenancy if the Claimant had not commenced
possession proceedings.

The error as to the end date of the extension period is an obvious one. Having considered the whole of the notice in its context, therefore, I consider the error in the dates could not reasonably have led that the recipient of the notice to infer anything else, and could not possibly be misled by it.

ii) The tenant argued that if the starter tenancy had been validly extended to 20 April 2023, clause 1.1.2 required possession proceedings to be started within two months of the expiry of the section 21 notice, which had not been done here.

The court noted that clause 1.2.1 made it clear that this two month limit for starting proceedings applied only if “this (expiry of the notice) is after the conversion date”. The section 21 notice expired on 21 December 2022, before the extended conversion date of 21 April 2023. The point of clause 1.1.3 was to allow service of a section 21 at any point up to the conversion date, which would extend the ‘starter’ status so that the tenancy did not convert before the expiry of the notice.

On the Article 8, Equality Act 2010 and PSED defence, the court acknowledged that the tenant’s mental health conditions amounted to a relevant disability, but in view of the clear history, and the likelihood of future occurences identified in the tenant’s expert psychiatric report, the court held:

The PSED duty had been fulfilled in consideration of the disability, but even if there was a material breach, a proper consideration would not have led to a different outcome.

With regard to Article 8, a possession order was not a disproportionate interference with the tenant’s Art 8 rights.

With regard to sections 15 and 19 Equality Act:

In the round, therefore, considering the question whether the treatment of the Defendant is proportionate, I am satisfied that the decision to issue possession proceedings did achieve a fair balance between the Claimant’s duty to manage its housing stock for the benefit of the whole community, its duty to alleviate the complaints of ASB, protect neighbouring residents, and the hardship that the Defendant would suffer as a disabled person by reason of the eviction.

I consider the same considerations apply in relation to the suggestion that section 8 proceedings should have been instigated as an alternative. Moreover, I accept Mr Lewis’ submission that to do so would undermine the probationary nature of the scheme under which the Tenancy has been granted, and render redundant the contractual right to use section 21 proceedings, undermining the whole purpose of the starter tenancy scheme.

On section 20 EQA, no request for adjustments had been made until service of the defence, but for the same reasons as on Section 15/19, there was not a failure to make reasonable adjustments in not taking lesser measures, or in not bringing proceedings under section 8, rather than section 21.

The Claimant was entitled to a possession order.