Landlord and tenant – Housing Act 1996 – Introductory tenancy – Notice of possession – Appellant local authority serving notice of possession on respondent under section 128 of 1985 Act to end introductory tenancy – Notice accompanied by information leaflet – Whether notice invalid for failure to include information required by section 128(7) – Whether valid on ground that required information set out in information leaflet – Whether notice capable comprising more than one document – Appeal allowed
The respondent occupied a flat let to him by the appellant local authority on an introductory tenancy under Chapter 1 of Part V of the Housing Act 1996. The appellants subsequently served the respondent with notice of possession proceedings against him, under section 128 of the Act, on the grounds of rent arrears and an assault on a female visitor to the block of flats.
The respondent disputed the validity of the section 128 notice on the grounds that it omitted the statement required by section 128(7), informing the tenant that if he needed help or advice about the notice he should take it to a Citizens’ Advice Bureau or one of the other agencies referred to in section 128(7).
The notice given by the appellants had been accompanied by a covering letter and a further document described as an information leaflet “to accompany Notice of Proceedings for Possession of Introductory Tenancy”. While the section 128(7) information was not included in the “notice” document, it was set out in the “information leaflet”. The notice stated that the respondent should read the notice, and all the notes, very carefully.
Dismissing the possession claim, the judge found that the requirement to include the section 128(7) information in the notice was mandatory and that the notice did not include the information leaflet, notwithstanding the reference in the notice to “all the notes” and the fact that both documents were served together under cover of the same letter.
The appellants appealed. Issues arose as to whether a notice under section 128 could comprise more than one document and whether it did so in the instant case.
Held: The appeal was allowed.
(1) There was no prescribed form for a section 128 notice. The question was the document or documents relied on could reasonably be described as a notice. In order to do so, they have to give the tenant notice of the intended proceedings in compliance with section 128, for which purpose the notice had to contain the other information that section 128 prescribed. There was nothing in section 128 to limit the notice to a single page or a single document and no such restriction could be spelt out of the statute. It was therefore be a question of objective fact in each case whether the documents relied on formed part of the notice.
(2) The judge had erred in attaching the importance he had to the way in which the relevant documents were drafted and to the nomenclature used in them. Although the appellants had called one document the “notice” and the other an “information leaflet”, that could not override the substance of the documents or be determinative of the statutory question. The question was whether, from an objective point of view, both documents were intended to, and did, perform the function of a section 128(1) notice.
Where the “notice” document had directed the tenant in terms not only to that document but also to the notes in the “information leaflet”, and where the leaflet stated that it was intended “to accompany Notice of Proceedings”, a reasonable tenant would have understood that he needed to read the contents of both documents together in order to understand the action that the appellants were taking. That was so even though the language used fell short of an express incorporation of the contents of the leaflet into the notice document, Looked at objectively, those two documents functioned together as the notice for the purposes of section 128: City of London Corporation v Devlin [1997] 29 HLR 58 considered.
Iain Colville and James Sandham (instructed by the law and public services department of Islington London Borough Council) appeared for the appellants; Tim Baldwin and Justine Compton (instructed by Duncan Lewis Solicitors) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of Islington London Borough Council v Dyer
