Landlord and tenant – Assured shorthold tenancy – Termination – Appellant tenant appealing against decision of county court that respondent landlords served valid notice to terminate tenancy under section 21 of Housing Act 1988 – Whether notice invalid because no energy performance certificate (EPC) served prior to its service – Appeal dismissed
The respondent landlords granted the appellant tenant an assured shorthold tenancy of flat 6, Dalmore Court, Marina, Bexhill-on-Sea for a fixed term of one year commencing on 19 March 2008. From 19 March 2009, the appellant occupied the flat by virtue of a statutory periodic tenancy which arose by virtue of section 5(2) of the Housing Act 1988.
On 6 December 2018, the respondents served a notice under section 21 of the 1988 Act purporting to terminate the tenancy. On 20 February 2019, they commenced proceedings for possession of the flat. The district judge dismissed the claim for possession on the basis that the section 21 notice was invalid because no energy performance certificate (EPC) had been served on the appellant prior to the service of the notice. Judge Simpkiss allowed the respondents’ appeal, holding that service of an EPC was not required.
The appellant appealed. The issue was whether the requirement contained in regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 (which required landlords to provide tenants with an EPC), compliance with which was required by regulation 2(1)(a) of the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 for the purposes of section 21A of the 1988 Act, applied to the appellant’s tenancy on 6 December 2018.
The respondents contended that that requirement for an EPC did not apply because the appellant’s tenancy was not “an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015” within regulation 1(3) of the 2015 Regulations.
The appellant contended that the requirement did apply by virtue of section 41(3) of the Deregulation Act 2015, since his tenancy was an assured shorthold tenancy of a dwelling-house in England in existence on 1 October 2018.
Held: The appeal was dismissed.
(1) By virtue of section 5(2) and (3)(b) of the 1988 Act, the appellant’s statutory periodic tenancy was deemed to have been granted on 19 March 2009. Thereafter, it continued from month to month because rent was payable monthly under the fixed term tenancy: section 5(3)(d). Thus, it was not granted after 1 October 2015, let alone after 1 October 2018.
The appellant’s reliance on the fact that section 41(3) of the 2015 Act provided that section 38 (inserting section 21A) applied to any assured shorthold tenancy, which was in existence on 1 October 2018, was misplaced. The consequence for present purposes was simply that section 21A could apply to a tenancy which was in existence at that time. Section 21A(1) only bit if, and to the extent that, the secretary of state exercised the power conferred by section 21A(2) to prescribe requirements.
(2) Section 21A(2) did not oblige the secretary of state to prescribe any requirements at all and, if no such requirements were prescribed, section 21A(1) would not bite on any tenancies. Equally, it would be open to the secretary of state to exercise the power to prescribe requirements falling within section 21A(2)(a) and/or (b), but not (c), in which case section 21A(1) would bite on tenancies affected by those requirements and not on tenancies only affected by the absence of an EPC.
If the secretary of state exercised the power conferred by section 21A(2) in an irrational manner, that could be challenged on public law grounds. However, no such challenge had been advanced in the present case.
(3) The secretary of state had exercised the power conferred by section 21A(2) by making regulation 2 of the 2015 Regulations. Regulation 1(3) provided that those requirements only applied to assured shorthold tenancies granted on or after 1 October 2015. At the time that the secretary of state made the 2015 Regulations, the secretary of state had no power to go further by virtue of section 41(1) and (2) of the 2015 Act. The inclusion of regulation 1(3) made sure that the reach of regulation 2 did not extend beyond the statutory power as it then was.
(4) From 1 October 2018, the secretary of state had the power by virtue of section 41(3) to extend the reach of regulation 2 to any assured shorthold tenancy in existence on that date. However, the secretary of state had not exercised that power. If the secretary of state failed at least to consider whether or not to do so, there might come a point where that failure could become susceptible to a public law challenge, but it was not suggested that such a situation had yet arisen. Moreover, it would be understandable if the secretary of state, when considering whether to exercise that power, decided not to do so because it would place an undue burden on landlords seeking to exercise their section 21 rights in respect of tenancies which were not subject to the requirements imposed by regulation 2 when granted.
(5) Regulation 1(3) was not ultra vires. It limited the application of regulation 2 of the 2015 Regulations but regulation 2, as so limited, was within the power conferred by section 21A(2); and nothing in the 2015 Act obliged the secretary of state to exercise that power to the fullest extent permitted by section 21A(2) of the 1988 Act and section 41(3) of the 2015 Act.
There was no significance in the difference in the wording of sections 21(8) and 21B(1) of the 1988 Act (inserted by sections 37 and 39 of the 2015 Act), both of which referred to “an assured shorthold tenancy of a dwelling-house”, on the one hand, and section 21A(2) (inserted by section 38), which referred to “requirements imposed on landlords by any enactment”, on the other. It simply reflected the different purposes of those provisions. There was nothing in the wording of section 21A(2) which prevented the secretary of state from deciding which tenancies to prescribe requirements for. In any event, when the 2015 Regulations were made, the restriction contained in regulation 1(3) precisely reflected the extent of the statutory power.
(6) Accordingly, regulation 2 of the 2015 Regulations did not apply to tenancies granted before 1 October 2015 and the respondents were not required to serve an EPC in order to rely on the section 21 notice.
Robert Denman (of Holden & Co of Hastings) appeared for the appellant; Sally Anne Blackmore (instructed by Edward Hart Solicitors of Brighton) appeared for the respondents.
Eileen O’Grady, barrister
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