Validity of notices under s.128, Housing Act 1996 - notices, letters and information leaflets
In Islington LBC v Dyer  EWCA Civ 150, it was held that the notice provisions in section 128, Housing Act 1996 - the intention to bring possession proceedings against an introductory tenant -can be satisfied by serving more than one document. Like so many things, however, whether a notice complies with the requisite requirements under section 128 will need to be judged on a case-by-case basis.
Introductory tenancies and notice requirements
Introductory tenancies are governed by the Housing Act 1996 (as amended). So far as is relevant, where an authority has elected to operate an introductory tenancy regime under section 124, Housing Act 1996, all new periodic tenancies and licences which would otherwise be secure tenancies will be introductory tenancies or licences unless immediately before the new tenancy, one or more of the tenants was either a secure tenant or an assured tenant of a private registered provider of social housing.
Tenancies remain introductory until the end of a “trial period” which lasts for one year after the date on which the tenancy was entered into, or the date on which the tenant was first entitled to possession, whichever is later (section 125). Under section 125A, the trial period can be extended by a further six months.
(Readers should note that schedule 7, Housing and Planning Act 2016 makes amendments to, inter alia, the Housing Act 1996 so that, when commenced, local authorities in England will be required to grant new tenants a fixed-term tenancy, either secure or introductory, for a period of between 2 and 10 years (see new s.124A, 1996 Act which is not yet in force).)
Landlords may only bring introductory tenancies to an end by obtaining a possession order in court: section 127, Housing Act 1996.
Before bringing proceedings, landlords must serve a notice giving reasons for the decision to seek a possession order and specifying a date after which court proceedings may be begun: section 128, Housing Act 1996.
The form of notice is not prescribed by the 1996 Act and it merely has to comply with the requirements of the section:
- It must state that the court will be asked to make an order for possession (s.128(2));
- It must state the reasons for the decision to apply for the order (s.128(3));
- It must identify a date after which proceedings may be begun, which must not be earlier than the date on which the tenancy could - but for these provisions - have been brought to an end by notice to quit (s.128(4));
- It must inform the tenant of the right to request a review of the decision by serving notice on the landlord within 14 days after service of the notice (s.128(6)); and
- It must inform the tenant that he can obtain help or advice from a Citizens’ Advice Bureau, housing aid or law centre, or a solicitor (s.128(7)).
A tenant who wishes to seek a review of the decision must request a review within 14 days of the date of service of the notice of proceedings (s.129(1)). If a review is requested, the landlord must carry one out before the date specified in the notice of proceedings as the date after which possession proceedings may be begun (s.129(5)). Where a landlord upholds its decision, possession proceedings will be brought.
Section 127, Housing Act 1996, imposes a mandatory duty on the court to grant possession if a notice has been served in compliance with section 128. On the face of it, the court has no discretion under section 127(b) whether or not to make a possession order but this of course is subject to, amongst other things, a tenant’s entitlement to raise a proportionality defence in the county court (e.g. Manchester City Council v Pinnock  UKSC 45;  H.L.R. 7 and Hounslow LBC v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby  UKSC 11).
Mr Dyer was granted an introductory tenancy by Islington LBC and, following an allegation of assault and the accrual of rent arrears, Islington served upon him notice of proceedings. The documents served comprised a letter, “the notice” and an information leaflet. Mr Dyer requested a review of the decision. He failed to attend the review. Islington upheld its decision to seek possession.
Islington brought possession proceedings. Mr Dyer’s defence was that the section 128 was invalid: the information required under section 128(7) (that the tenant must be informed that he can obtain help or advice from a Citizens’ Advice Bureau, housing aid or law centre, or a solicitor) was not contained in “the notice” but was contained within a separate information leaflet. The judge at first instance, rejecting the defence, granted a possession order.
On 18 December 2014, HHJ Baucher allowed Mr Dyer’s appeal (see Legal Action, May 2015, page 44). It was held that the requirement in section 128(7) was mandatory and, as a matter of construction, the notice did not include the required information.
Islington appealed to the Court of Appeal. Islington maintained that the notice was made up of “the notice” and information leaflet and, therefore, was valid. The documents taken together contained all the necessary information.
Court of Appeal
The Court proceeded on the assumption that the provisions of section 128(7) are mandatory but held that, as a matter of statutory construction, a notice under section 128 may be comprised of more than one document. There was nothing in the statutory language which suggested there was a restriction of a notice to a single page or a single document.
Whether documents are sufficient to comply with the relevant requirements in future cases will, however, be a question of objective fact in every case. In this particular case, the documents served upon Mr Dyer satisfied the introductory tenancy notice requirements.