S.21 notices & gas safety certificates: all or nothing

November 12, 2021

Jared Norman acted for the successful tenant in a recent appeal in which the County Court at Central London found that a failure to include all the information required by regulation 36(3)(c) of the Gas Safety (Installation and Use) Regulations 1998 in a gas safety certificate meant the landlord was in breach of the ‘prescribed requirements’.

Therefore pursuant to s.21A Housing Act 1988, the landlord was not entitled to give a section 21 notice.

Background to the case

The landlord sought to evict the tenant using the accelerated procedure following service of a notice pursuant to section 21 of the Housing Act 1988.

The assured shorthold tenant had been given a gas safety certificate by the landlord. However it failed to include the name and address of the landlord of the premises (or, where appropriate, his agent) at which the appliance or flue is installed’

The space for such information was left blank on the certificate.  All other parts of the certificate were validly completed.

The court granted a possession order under the accelerated procedure on the papers.

The tenant successfully applied to set aside the possession order and persuaded the Deputy District Judge in the court below to dismiss the possession claim due to the gas safety certificate failing to contain all of the required information.

The judge found that all the information set out in the material provisions of the Gas Safety (Installation and Use) Regulations 1998 was required.  He found that if some of it was missing then the landlord was not entitled to give the section 21 notice (pursuant to s.21A(1)).

Therefore the possession claim was dismissed.

The landlord appealed the setting aside of the possession order and the dismissal of the possession claim to the County Court at Central London.

Issues

The issue before the court was whether the landlord was entitled to ‘give’ the section 21 notice.

To determine this issue, the court had to decide if the landlord was in breach of a prescribed requirementat the time the section 21 notice was served.  The prescribed requirements are set out in regulation 2 of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015.

In this case the requirements were those in paragraph 6 of regulation 36 of the Gas Regulations.  Paragraph 6 of the Gas Regulations itself required that a copy of the gas safety certificate (or record) was made pursuant to the requirements of paragraph 3(c) of the Gas Regulations.

The landlord’s perspective

The landlord accepted that the gas certificate did not contain all the information in paragraph 3(c).

However the landlord argued that the failure did not mean that the landlord had failed to comply with the prescribed requirements.  One argument raised by the landlord was that the tenant knew who his landlord was. Therefore the omission of this information was not material and/or important.

Arguments on behalf of the tenant

On behalf of the tenant it was argued that there may be other pieces of information required by the legislation (such as the address of the premises or location of the appliance or flue) that the tenant knew but that did not mean the landlord did not have to include it.

Furthermore, it was not for the court to second guess why parliament had required certain information to be included or the importance of it.

The decision for the court

Therefore the court  had to consider whether the failure to include only 1 of the 9 pieces of information set out in paragraph 3(c) of the Gas Regulations meant that the landlord had failed to comply with the prescribed requirements.

The court’s decision to dismiss the landlord’s appeal

The landlord’s appeal was dismissed.

The court found that the landlord had not complied with the prescribed requirements as a result of failing to include the information required by paragraph 36(3)(c)(iii) of the Gas Regulations in the gas safety certificate.

As such the landlord was not entitled to give the section 21 notice when they did and the Deputy District Judge was not wrong to set aside the possession order or dismiss the possession claim.

The court considered that where parliament had specifically prescribed what was required, then all of that information was part of the prescribed requirements and must be included.

The court rejected the landlord’s argument that as the tenant knew the landlord’s name, the omission of this was not material or relevant; as it was not for the court to try to ascertain why it parliament had required it.  The court also took the view the landlord’s details pursuant to paragraph 3(c)(iii) were those of the landlord at the time the certificate was produced and that these may not necessarily be the same as the tenant’s landlord; as the ownership of the property may have changed since the date of the certificate.

Additionally, the court found favour with the tenant’s arguments that it was not desirable for the court to try to ascertain which, if any, pieces of information contained in the regulations were more important than others.

Comment

The decision, while not binding, is of assistance in understanding the requirements on a landlord in cases such as these.  It also reaffirms the view, regularly held in county courts, that all information in a gas safety certificate is required otherwise the landlord will not be able to obtain possession relying upon a section 21 notice.

Whilst the ‘all or nothing’ approach may appear harsh on landlords, allowing a discretion would create significant uncertainty for both landlords and tenants.   For example, could a landlord obtain possession if they omitted one piece of the information but not two or three?  Additionally, why and how should one requirement be deemed more important than any others?

However, the question remains of what happens if information is given but it is incomplete?