Gas Safety Records and Possession Proceedings: Trecarrell House Limited V Rouncefield [2020] EWCA Civ 760

Richard Cherry of 1 Chancery Lane appeared for the Respondent. A fuller note of Richard’s analysis of the Court of Appeal’s decision can be found here

THE HEADLINE

1. Key facts – an AST tenant was not given the last Gas Safety Record (‘GSR’) before occupation but was given it before service of the s21 Notice. The subsequent GSR was a record of a check made more than 12 months after the previous one.
2. The Court faced two questions:

The First Question

Does failure to give a tenant a copy of a Gas Safety Record (‘GSR’) before the tenant begins to occupy as required by Reg 36(6)(b) of the Gas Safety (Installation and Use) Regulations 1998 (‘the Regulations’) preclude reliance on a section 21 notice?

The Second Question

Can a landlord comply with the requirement in Reg 36(6)(a) to give an existing tenant ‘a copy of the record made pursuant to the requirements of paragraph (3)(c)’ by giving a record of a check made outside the 12 months stipulated by Reg 36(3)(a)?

THE DECISION

The First Question

3. The majority held that failure to give a GSR before occupation can be remedied by giving the GSR at any time before the s21Notice.

4. Patten LJ (giving the leading judgement) while noting the purpose of reg 36 was to require landlords to check gas appliances within a 12 month interval and provide records to tenants and that the purpose of s21A HA 1988 was to ‘place additional pressure upon and provide encouragement for landlords to comply with the regulation 36 code of inspection’ by removing the ability to rely on a s21 Notice for possession, reasoned as follows:

• If failure to give a GSR before occupation prevents reliance on a s21 Notice, it confers security of an assured tenancy ‘which was not what it granted’;
• This would create a disparity between protections for new and existing tenants;

• Criminal sanctions exist for failure to comply. The prohibition on giving a s21 Notice is ‘only collateral to these sanctions and, at best, a spur to compliance’;

• Excluding the 28 day requirement by Reg 2(2) of the 2015 Regs shows Parliament did not intend ‘regulation 36(6) and (7) as prescribed requirements to be applied with the same vigour as the regulations themselves’ [emphasis added].

5. Moylan LJ dissented. He followed a similar line of analysis to HHJ Luba QC in Caridon v Shooltz (2 February 2018: 2018 WL 05822845). As the reason for enacting s21A HA 1988, was the ‘safety of occupiers of dwelling-houses’, it ‘might be expected…to impose a substantive sanction rather than simply a procedural requirement to give a GSR to a tenant at any time prior to the provision of a s.21 notice’.

6. Crucially: ‘no reasons have been identified, either by reference to principles of statutory interpretation or otherwise why, what I regard to be, the effect of regulation 2(2) on a plain reading should not be applied’ observing that ‘if the time requirements in both paragraphs (6)(a) and (6)(b) were lifted, then I do not see these provisions as imposing much of a sanction at all’.

The Second Question

7.The Second Question received less attention and appears not to have come before the courts previously. The tenant’s argument was based on the landlord’s obligations in

• Regulation 36(6)(a) – to give a tenant ‘a copy of the record made pursuant to the requirements of paragraph (3)(c)’
• Reg 36(3)(a) – to have appliances ‘checked for safety … at intervals of not more than 12 months’
• Reg 36(3)(c) – to give tenants a record of appliances ‘so checked’ bearing 9 specified pieces of information

8. The tenant argued that the words ‘so checked’ in paragraph 36(3)(c) can only refer to the requirement of paragraph 36(3)(a) that the GSR be in respect of a check made within 12 months of the previous check.

9. Patten LJ held that even if a landlord fails to perform a safety check within the 12 months required by Reg 36(3)(a), they comply with Reg 36(6)(a) by giving an existing tenant a GSR made later. Patten LJ said that if the tenant’s reading were correct, ‘the landlord would have no obligation under paragraph 36(3)(c) to make and retain a copy of any late inspection nor would regulation 36(5) be workable.’ He concluded that the words ‘so checked’ in paragraph 36(3)(c) refer back to the phrase ‘checked for safety’ in paragraph 36 (3)(a) and cover every safety check which is carried out.

10. King LJ did not address the second question point and Moylan LJ wished it to be ‘properly and substantively raised and argued’ before making any decision.

The Impact

11. A landlord need not give any GSR to prospective or existing tenants before or during occupation until they choose to serve a s21 Notice – potentially a period of some years. A residential occupier has no way of knowing whether the Property they occupy or are about to occupy is safe until they are asked to leave. The right under Reg 36(7) to request a copy of the record becomes nugatory as the Landlord is not obliged to display a copy of any GSR informing tenants of that right.

12. The brevity of the conclusions on the Second Question cause difficulty in assessing the impact; it seems a landlord is not prevented from relying on a s21 Notice by failing to carry out safety checks within the 12 month timeframe of Reg 36(3)(a). With no timeframe fixed for performing such a check the information could be of any check carried out at any time over a period of years. This exacerbates the issue identified above.