Cassell & Cassell v Sidhu & Sidhu. HHJ Clarke. County Court at Reading. 9 October 2025 (Copy of Judgment)

I had hoped that we could see out the dying days of section 21 notices in relative tranquility, without legal controversy or kerfuffle, (the Renters’ Rights Bill will complete parliament on 22 October, and then we just await a commencement date). But it was not to be. And perhaps inevitably, it is a judgment on the issue of provision of gas safety certificates that has caused the kerfuffle.

This is a County Court appeal judgment, by Her Honour Melissa Clarke, on both the validity of a GSC and, most significantly, on the effect of there being no valid GSC at the commencement of the tenancy when the tenant first goes into occupation.

This was the tenants’ appeal of a first instance possession order. The tenancy began with a 12 month fixed term in 2021, then became a statutory periodic tenancy. A purported GSC had been provided in 2021, then subsequent GSCs in 2022 and 2023. Possession proceedings were issued in 2024.

The initial GSC left the box for “Details of Customer/Landlord” blank.

The tenants’ argument, at first instance and on appeal, was that this GSC was not valid as it did not comply with regulation 36(3)(c)(iii) of the Gas Safety Installation and Use Regulations 1998 and so did not comply with regulation 36(6)(b), which was a prescribed requirement for serving a section 21 notice. The first instance District Judge had held that this failing was cured by the subsequent GSCs which did provide that information.

On appeal, HHJ Clarke held that

A GSC must comply with the requirements of Reg 36(3)(c) to be valid, as per Trecarrell House Ltd v Rouncefield (2020) EWCA Civ 760 (our note). While this defect to the GSC could have been cured by later amendment and service, prior to the s.21 notice, (as per Trecarrell), that had not happened. So compliance with Reg 36(6) could not be shown.

The question then was the effect of this and whether it could be (and had been) remedied.

The tenants argued that the consequence was as found in Byrne v Harwood-Delgardo. HHJ Bloom. Luton County Court. 21 June 2022 (Our note), that a breach of the requirement for an initial GSC under Reg 36(6)(b) could not be remedied, with the effect that no subsequent section 21 notice could be validly served.

The landlord argued that the AST Regs (Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015) at Reg 2(1)(b) and 2(2) referred to a GSC in the singular, as did Gas Reg 36(7), not all the records, so it was only the GSC at the time of the s.21 notice that was relevant. Alternatively, Gas Reg 36(3)(6) and 36(3)(5) only required the landlord to hold and make available GSCs until there had been two further checks – in effect, two years. The landlords submitted

why would Parliament have  made that provision, if the effect of failure to serve a fully complaint gas safety record pursuant to regulation 36(3)(b) has the effect of barring the landlords from obtaining possession through the accelerated procedure for the remainder of the tenancy?

(We’ll leave aside that the 1998 Regs were unlikely to be drafted with the provisions of the 2015 Regs in mind – NL).

HHJ Clarke held that the failure to provide an initial GSC could be remedied.

i. Pursuant to the statutory scheme, a landlord is obliged only to retain a gas safety record (regulation 36(3)(6)) and make it available for inspection by the tenants (regulation 36(3)(5)) “until there have been two further checks”, such that it appears that Parliament did not intend that a landlord be required to evidence a gas safety record at all, once two further check had been made;

ii. Although Parliament had chosen to require landlords to comply with regulation 36(6)(a) GS Regs for existing tenants and regulation 36(6)(b) GS Regs for new tenants, by Regulation 2(1)(b) making the whole of regulations 36(6) and 36(7) GS Regs prescribed requirements for the purposes of s.21A HA 1988, it also provided by Regulation 2(2) AST Regs that the prescribed requirement (for both regulation 36(6)(a) and 36(6)(b) GS Regs, see Trecarrell at [19]) was “limited to the requirement on a landlord to give a copy of the relevant record to the tenant” and to that obligation alone;

iii. It is difficult to see any reason why Parliament would have intended “the relevant record” to encompass records which it had provided by statute the landlord was no longer obliged either to retain or make available for inspection once it had carried out two further checks;

(…)

v. In my judgment, a construction which interprets the statutory scheme as continuing to impose a bar to the service of a s.21 notice for a landlord’s failure to provide a compliant regulation 36(6)(b) pre-occupancy gas safety record after two (or five, or 10 in the case of a long-lasting tenancy) later annual gas safety checks have been carried out makes no obvious sense in terms of the policy of the scheme, and appears to be unworkable in light of the explicit provisions made by parliament relating to retention of gas safety records as I have just set out above.

So, the requirement (depending on circumstances) was to demonstrate provision of GSC for the two checks prior to service of the section 21 notice.

While Delgado could be distinguished on some facts, this was a different finding and with the greatest respect to HHJ Bloom, Delagdo was not followed.

Appeal against the possession order dismissed on that basis.

Comment

Oh damn. Well, we already knew the 2015 Regs were a drafting mess – particularly on this issue – but what a conundrum to be left with.

This judgment almost certainly won’t be appealed – the tenants have moved out – and Delgado wasn’t appealed. So what we have are two judgments that are a) not binding, b) both of persuasive value, and c) both from very well respected and extremely able circuit judges.

What District Judges on possession lists are to make of this is, basically, up to them…

My view is of no importance whatsoever, but for what it is worth, I rather think that Delgado is right (or at least strongly arguable) on a strict reading of the Regs, but also that Cassell is right (or at least strongly arguable) on a purposive and contextual approach. It is the wording of the AST regs that have left us in this position.

If Cassell is right, or followed, I think these are the scenarios:

i) Tenancy is less than 12 months when s.21 notice served (eg, 6 months term). Initial GSC must be valid and served prior to s.21 notice (or if not initially valid, capable of correction by eg adding landlord’s name and address).

ii) Tenancy is over 12 months but less than two years. Initial and subsequent GSC must be valid (subject to amends as above) and served.

iii) Tenancy is over 24 months. The last two valid (subject to amends as above) GSCs must be served.

There is, it has to be said, a question about whether this would apply where the tenancy has been ‘renewed’ (new fixed term) rather than become statutory periodic after the initial fixed term. But that is obviously an issue for a different case, assuming that such arises before the end of section 21.

And I am going to have to update the section 21 validity flowchart yet again. Joy.