Social Housing Speed Read – Delayed provision of a gas safety certificate and the fatality to section 21 – a relaxation of the rules?

For assured shorthold tenancies granted on or after 1 October 2015, a landlord must give to the tenant a valid gas safety certificate before they move in to their property. Failure to do so would prevent the landlord from then being able to serve a valid Section 21 notice.

The Court of Appeal has recently considered whether the right to serve a Section 21 notice in those circumstances might not be lost forever.

The case concerns an assured shorthold tenancy that was granted in February 2017. The landlord did not provide the tenant with a gas safety certificate until 9 months after it began. However, the certificate itself was dated January 2017 and therefore preceded the tenancy.

The following year, the landlord served the tenant with a Section 21 notice and subsequently issued possession proceedings. It was argued by the tenant the delayed provision of the gas safety certificate precluded the landlord from validly serving such a notice.

Section 21A of the Housing Act 1988 provides that a section 21 notice “may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.” Albeit, a number of regulations also apply.

Previously, the County Court agreed with the tenant, finding that that delayed provision of a section 21 notice was in fact fatal. On appeal, however, the Court of Appeal took a slightly different stance.

The basis of the landlord’s appeal was a technical argument on the wording of specific regulations with which the Court agreed – although on a 2-1 majority, only.

In summary, it was found that the punishment for failing to provide a copy of a gas safety certificate  (i.e. to forever lose the right to serve a Section 21 notice) was disproportionate, if the landlord could later provide a valid certificate. Although the importance of tenant safety was acknowledged, the Court stated that the main punishment for gas safety-related breaches were criminal sanctions. Late delivery of the document does provide the tenant with the required information and so time limits were disapplied.

Therefore, it seems that landlords can serve a gas safety certificate after the tenancy has begun and then serve a valid Section 21 notice.

However, the appeal was only allowed in the case because the landlord had already obtained a valid certificate before the tenant moved into the property – they had just not given a copy of the tenant. No breach had occurred other than late delivery of the certificate itself to the tenant. It would have been a very different outcome had no certificate existed whatsoever – this remains an irremediable breach.

The Deregulation Act caused a great deal of confusion – and concern – on its implementation.

An element of comfort can be taken from this recent (binding) decision as it removes the harsh sanction for landlords who have simply made an administrative error in their failure to provide a gas safety certificate prior to tenant occupation. This should not be considered as a relaxation of the rules surrounding gas safety and, despite this clarification, landlords should continue to operate robust procedures as to the provision of documents to tenants before their tenancy begins.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.