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Landlord and tenant

27 April 2017

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Islington London Borough Council v Dyer [2017] EWCA Civ 150

23 Feb; 22 March 2017Court of Appeal: Patten LJ, Proudman J, Sir Colin Rimer

Landlord and tenant — Introductory tenancy — Notice of proceedings — Housing authority purporting to serve notice on tenant by sending letter together with “Notice” and “Information Leaflet” — Required information not contained in “Notice” but contained in “Information Leaflet” — Whether valid notice given where required information contained in more than one single document — Housing Act 1996 (c 52), s 128

The tenant was in possession of a flat pursuant to an introductory tenancy granted by the claimant local housing authority under the Housing Act 1996. The housing authority purported to serve on the tenant a notice of proceedings for possession pursuant to section 128 of the Act under cover of a letter. With the letter were enclosed a two-page “Notice” and a two-page “Information Leaflet”. The “Notice” itself did not, as required by section 128(7) of the Act, inform the tenant that if he needed help or advice about the notice, and what to do about it, he should take it immediately to a Citizens’ Advice Bureau, a housing aid centre, a law centre or a solicitor, but the “Information Leaflet” did. When the possession proceedings came before the district judge, the tenant asserted that the notice was invalid for failing to comply with section 128(7). The district judge rejected that submission and made an order for possession, but the judge allowed the tenant’s appeal, holding that the notice was invalid for the reasons pleaded. The housing authority appealed, contending that the notice was comprised of both the “Notice” and the “Information Leaflet” and so complied with section 128(7).

On the appeal—

Held, appeal allowed. The question was whether, as a matter of statutory construction, a notice under section 128 of the Housing Act 1996 might be comprised in more than one document and, if so, whether the documents in the instant case satisfied the requirements. There was no prescribed form for a section 128 notice, and so the starting point had to be to ask whether the document or documents relied on could reasonably be described as a notice. In order to do so, they had to give the tenant notice of the intended proceedings in compliance with section 128(1). To comply with the section the notice had to contain the other information which section 128 prescribed. There was nothing in section 128 which limited the notice to a single page or a single document, and no such restriction could be spelled out of the statute. It would therefore be a question of objective fact in every case whether the documents relied on did or did not form part of the notice. The judge was wrong to attach so much importance to the way in which the relevant documents were drafted, and to the nomenclature used in them, in deciding whether the “Information Leaflet” could be treated as part of the notice for the purposes of section 128. What one needed to ask was whether, from an objective point of view, both documents were intended to and did perform the function of a section 128(1) notice. If they did, then the labels which the claimant placed on them were not the end of the matter. On the facts, the documents did function together as the notice for the purposes of section 128 even though only one of them was in fact called the “Notice”. There was no direct authority on this issue in relation to section 128. However, in other statutory contexts the courts had been prepared to treat more than one document as constituting the relevant notice for the purposes of satisfying the statutory requirements about its contents. By parity of reasoning, there was no reason in principle why the “Information Leaflet” in the instant case should not be treated as part of the notice required to be served under section 128 if the reasonable recipient would have understood that the documents were to be read together (paras 14–19, 20, 21).

City of London Corporation v Devlin (1995) 29 HLR 58, CA considered.

Appearances: Iain Colville and James Sandham (instructed by Law and Public Services Department, Islington London Borough Council) for the housing authority. Tim Baldwin and Justine Compton (instructed by Duncan Lewis Solicitors) for the tenant.

Reported by: Matthew Brotherton, barrister.

Solicitors Journal case digest is prepared by the Incorporated Council of Law Reporting for England and Wales (ICLR)

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Landlord & Tenant