Livewest Homes Ltd v Bamber

This is an appeal by the Defendant and Appellant, Ms Sarah Bamber, against a declaration made in the Plymouth County Court by His Honour Judge Mitchell dated 5 April 2018. His Honour Judge Mitchell (“the Judge”) had declared that the Claimant, Liverty Limited, now known as Livewest Homes Limited and formerly known as Devon and Cornwall Housing Association Limited (“Livewest”) which was a private registered provider of social housing (“registered provider”), was not required to give 6 months’ notice pursuant to section 21(1B) of the Housing Act 1988 in order to determine Ms Bamber’s tenancy of the ground floor flat, 15 Mildmay Street, Greenbank, Plymouth (“the flat”).

The appeal raises a point about the applicability of the provisions of section 21(1A) and 21(1B) of the Housing Act 1988 to the starter period of an assured shorthold fixed term tenancy agreement. Section 21(1A) and (1B) were inserted by the Localism Act 2011 to provide protection, in the form of advance notice and information, for tenants of registered providers who had fixed term tenancies for a term certain of not less than 2 years by requiring 6 months’ notice to be given to the tenant that the registered provider did not intend to grant a new tenancy on the expiry of the fixed term.

Ms Bamber was granted a tenancy of the flat on 20 January 2015 which was due to expire in 2022 (“the first tenancy agreement”). It was common ground that the use of fixed terms by registered providers such as Livewest has become more widespread. This is because there is a limited supply of social housing and a change of circumstances for the tenant, or family members with succession rights, may mean that the tenant or successor does not require a home provided by registered providers. The use of the fixed term is intended to enable the registered provider to ensure that its supply of houses is best used to serve the interests of those requiring it.

The first tenancy agreement included a provision for a probationary period, also referred to as a starter period. The use of probationary periods has also become more commonplace. The probationary periods are intended, among other matters, to enable the registered provider to avoid granting tenancies to tenants who will not comply with the provisions of the lease. Some provisions of the lease are designed to ensure the quiet enjoyment of neighbouring tenants of their homes.

The fact that fixed terms and probationary periods have become more widespread is evidenced by the provisions of the “Tenancy Standard” dated April 2012 produced by the Homes & Communities Agency. This requires registered providers “to offer tenancies or terms of occupation which are compatible with … the efficient use of their housing stock” (see paragraph 1.2.1). Registered providers are required to publish clear and accessible polices which outline their approach and set out “where they grant tenancies for a fixed term, the length of those terms” (paragraph 2.2.1(b)). The document provides “where registered providers use probationary tenancies, these shall be for a maximum of 12 months, or a maximum of 18 months where reasons for extending the probationary period have been given and where the tenant has the opportunity to request a review” (paragraph 2.2.4).

Disputed allegations were made about Ms Bamber’s behaviour and Livewest served notice and brought proceedings for possession. Those proceedings were defended on the basis that the notice did not comply with the provisions of section 21(1B) of the Housing Act. District Judge Leech decided that the notice was invalid. On 25 August 2016 His Honour Judge Cotter QC allowed an appeal. Ms Bamber was granted permission to appeal by the Court of Appeal. It is apparent that the judgments of District Judge Leech and His Honour Judge Cotter QC depended in part on the express terms of the first tenancy agreement, which was different to the wording of the tenancy agreement in this case.

Before the appeal in the Court of Appeal was heard, the proceedings were compromised on the basis that Livewest granted to Ms Bamber a new tenancy (“the second tenancy agreement”) which commenced on 27 February 2017 for a fixed period of 7 years and which included a starter period.

The second tenancy agreement was headed “Fixed term tenancy agreement (Assured shorthold with starter period)”. Material terms were: “This tenancy begins on Monday 27 February 2017 and ends on Sunday 28 February 2024 (“the expiry date”) unless we, or you, bring it to an end before then in one of the ways set out in this agreement”. At paragraph C2 under the heading “How we may end the tenancy” it was provided:

The second tenancy agreement also provided for a break clause to be operated: if Livewest intended to demolish the flat (clause 2.1.2); if the tenancy had passed on succession in certain circumstances (clause 2.1.3); and if Ms Bamber stopped occupying the flat as her only or principal home (clause 2.1.4).

At the end of the tenancy document in a box headed “Important information about this fixed-term tenancy” under the heading “the starter period” it was provided:

“This tenancy is subject to a starter period of 12 months. If you break your side of the agreement during the starter period we may give you notice requiring you to give us possession of the property. If we are concerned at your conduct of the tenancy we may, at our discretion, extend the starter period by up to 6 months by giving you written notice”.

As is apparent from the terms of the tenancy, the second tenancy agreement is an assured shorthold tenancy and provides for a starter period of 12 months, which might be extended for 6 months. Clause 2.1 provides for a break clause of 2 months’ notice in that starter period.

On 9 August 2017, in the light of further allegations of anti-social behaviour, a notice purporting both to exercise the 2 month break clause and to be a section 21 notice was sent by first class post to Ms Bamber. Under the relevant provisions of the second tenancy agreement this notice was deemed to be served on 11 August 2017.

Ms Bamber sought a review pursuant to the terms of the right given to her under clause 2.1 of the tenancy agreement. The review was carried out but on 20 September 2017 Livewest upheld the original decision to serve the notice.

Livewest brought proceedings for possession by a claim form dated 8 November 2017. Ms Bamber defended the proceedings on grounds that: the notice did not comply with the provisions of section 21(1B) of the Housing Act 1988; and that Ms Bamber had a defence under relevant provisions of the Equality Act 2010 and public law principles, which has been referred to as a public law defence.

The issue of whether the notice complied with section 21(1B) was ordered to be determined by a Recorder or Circuit Judge as a preliminary issue. The preliminary issue was heard by the Judge on 5April 2018 and it is the appeal from that judgment which is before me.

Section 5 of the Housing Act 1988, as amended, provides as follows:

Section 21 provides:

It is common ground that the provisions of section 21(3) to (9) are not relevant to the issue before me. Section 45 is the interpretation section for Part I of the Housing Act. This provides that a “fixed term tenancy” means any tenancy other than a periodic tenancy.

There is an approved note of the judgment. It appears that the tape recording of the judgment was corrupted and could not be transcribed. The approved judgment was therefore mainly based on counsel’s joint note of the judgment, approved by the Judge by order dated 25 June 2018.

The Judge declared that Livewest was not required to give 6 months’ notice pursuant to section 21(1B) of the Housing Act 1988 in order to determine Ms Bamber’s tenancy of the flat. The Judge set out the relevant background and applicable statutory provisions and noted that the issues were whether the tenancy was to be considered as at the time of the proceedings or at the time when the break clause was served and whether the provisions of section 21(1A) and 21(1B) of the Housing Act 1988 applied to this case.

In paragraph 17 of the judgment, the Judge rejected the argument on behalf of Livewest that the tenancy had become a statutory periodic tenancy because that was what Ms Bamber was left with after service of the notice meaning that 2 months’ notice was valid, noting that if that were the case section 21(1A) would hardly ever apply as the fixed term would always have come to an end by the time proceedings had started.

The Judge then turned to consider whether the provisions of section 21(1A) and (1B) applied, stating that the point was interesting and difficult. The Judge held that the relevant background to the insertion of section 21(1A) and (1B) was that the direction of travel was a move away from indefinite tenancies with more fixed terms with landlords considering whether these should be ongoing in the future. The introduction of sections 21 (1A) and (1B) were an attempt to enshrine this and let the tenant know the intentions of the landlord.

The Judge then noted that section 21(1B) made “perfect sense when a tenant is facing notice on expiry of a fixed term tenancy. It makes less or possibly no sense to know of the landlord’s intentions in respect of renewal if terminated”. The Judge noted that his construction permitted an unscrupulous landlord to use the break clause right at the end of the 6 months’ notice but the Judge reminded himself that he was dealing with a social landlord. He therefore held that section 21(1A) and (1B) had no application to a tenancy with a break clause because it was not the effluxion of time.

Mr James on behalf of Ms Bamber submitted that the Judge was wrong to hold that the notice did not need to comply with section 21(1A) and (1B), submitting that the provisions of section 21(1A) were satisfied so that section 21(1B) applied and that the Judge was not entitled to ignore the wording of the statute. Mr Strelitz on behalf of Livewest sought to uphold the Judge’s judgment for the reasons that the Judge gave by submitting that sections 21(1A) and 21(1B) did not apply, although the reasons why sections 21(1A) and (1B) did not apply were not clarified. However it also became apparent from Mr Strelitz’s submissions that Livewest was repeating the submission made to the Judge that Ms Bamber was left with a statutory periodic tenancy after service of the notice on 9 August 2017, which meant that there was no requirement to give 6 months’ notice pursuant to section 21(1A) and (1B) because there was no fixed term tenancy for a term certain of not less than two years at the relevant time, and that 2 months’ notice was therefore sufficient notice pursuant to section 21(1)(b) of the Act.

Mr Strelitz contended that he was not required to file a Respondent’s notice to rely on this point notwithstanding the Judge’s judgment on the point, but Mr James disputed this, pointing to the Judge’s clear holding against Livewest. Mr Strelitz then applied for permission to file a Respondent’s notice to affirm out of time if it was necessary to do so, contending that this was an issue of law, the point had been taken in the Respondent’s Skeleton Argument (which there was no requirement to serve under the current Civil Procedure Rules for appeals from the County Court to the High Court – see paragraph 8.3 of Practice Direction 52B) and Ms Bamber’s legal team could deal fairly with the point.

This meant that there were 3 issues to be determined: (1) whether, if it was necessary to serve such a notice, Livewest should be granted permission to serve a Respondent’s notice to affirm out of time; (2) whether the judge was right to find that sections 21(1A) and (1B) did not apply to the second tenancy agreement; and (3) if permission to serve a Respondent’s notice to affirm out of time is given, whether the tenancy became a statutory periodic tenancy on service of the notice on 9 August so that sections 21(1A) and (1B) did not apply to these proceedings.

Mr Strelitz sought an extension of time to serve the Respondent’s Notice to affirm from 13 May to 28 June 2018 if it was necessary to do so. I am satisfied that it is necessary for Mr Strelitz to serve a Respondent’s Notice to affirm to rely on the point that Ms Bamber was left only with a statutory periodic tenancy after service of the notice in August 2017 meaning that it was not a fixed term tenancy within the meaning of section 21(1A)(a). This is because the Judge rejected this submission in paragraph 17 of the judgment. It is no answer to submit that Livewest had succeeded in getting a declaration that the notice was valid. The point of a Respondent’s Notice to affirm is that the Respondent identifies another basis for supporting the order made by the Judge which is additional to the Judge’s reasoning. This appears from CPR Part 52.13(2)(b) which provides that a notice to affirm is served to rely on “reasons different from or additional to those given by the lower Court”. The notice should have been served 14 days after service of the Appellant’s notice on 25 April 2018 which is 13 May 2018. The hearing was listed on 17 May 2018, and the Respondent’s Skeleton Argument was filed on 27 June 2018, which was a day before the hearing before me on 28 June 2018.

It is common ground that the proper approach to the issue of whether to grant an extension of time to permit service of the Respondent’s notice out of time is set out in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926 which identifies the need to consider: whether the breach of the rule was serious and significant; whether there was good reason for the breach; and all the circumstances of the case having regard to the need to conduct proceedings efficiently, at proportionate cost, and to ensure compliance with the rules.

In my judgment this was a significant breach of the rules by Livewest. This was because there was a failure to serve a Respondent’s notice to affirm at any time before the hearing. There was no good reason for the breach, which appeared to have been caused by a misunderstanding of the purposes of a Respondent’s notice to affirm. However the relevant circumstances included the facts that: the point had been identified below and had been the subject of submissions below; the point was a point of law and did not require any further investigation; the point was properly identified in a Respondent’s Skeleton Argument, which there was no formal need to serve in accordance with the current rules relating to appeals from the County Court to the High Court; and Ms Bamber’s legal representatives were able to deal fairly with the point. In the light of these relevant circumstances I exercised my discretion to permit the Respondent’s notice to affirm to be served out of time. As discussed at the hearing the costs consequences of the failure to serve the notice to affirm should be borne by the Respondent.

There is no requirement for an assured shorthold tenancy to be for a fixed term, see 19A of the Housing Act 1988, which was inserted by the Housing Act 1996. However it was common ground that the Judge was right to find that there is an increasing use of fixed term tenancies by registered providers, and also that there had been an increase in the use of probationary or starter periods in such tenancies.

Section 21 makes provision for the recovery of possession on the expiry or termination of an assured shorthold tenancy. The Court must order possession if satisfied that the assured shorthold tenancy has come to an end, that no further assured shorthold tenancy is in existence and the landlord has given to the tenant not less than two months’ notice stating that he requires possession of the dwelling-house, see section 21(1)(b). The provisions of sections 21(1A) and 21(1B) were inserted by the Localism Act 2011 to impose a requirement of the giving of 6 months’ notice by registered providers that the registered provider did not intend to provide a new tenancy and to identify those who might provide assistance in circumstances where there was an assured shorthold tenancy which “is a fixed term tenancy for a term certain of not less than 2 years”.

In my judgment the judge was right to find that the provisions of section 21(1A) and (1B) did not make sense when applied to a notice served within the starter or probationary period. This was because the registered provider’s intentions about providing a new tenancy at the expiry of the fixed term would be irrelevant to be known to the tenant, who had been given notice in the probationary period of the termination of the tenancy agreement.

Section 21(1A) applies subsection (1B) to an assured shorthold tenancy of a dwellinghouse in England if two conditions are met. The first is that the tenancy is “a fixed term tenancy for a term certain of not less than two years” and the second is that the landlord is a registered provider. It is common ground that Livewest is a registered provider.

I have already noted the difficulty with transcribing the Judge’s judgment. If the Judge was holding that section 21(1A) and (1B) did not apply simply because it made little or no sense then I agree that the Judge’s reasoning could not be supported. However it appears that the Judge held that sections 21(1A) and (1B) did not apply “to a tenancy with a break clause; it is not the effluxion of time”. This record of what the judge said is very cryptically expressed.

One possible reason why sections 21(1A) and (1B) did not apply was because of the wording of section 21(1A)(a). This provides that subsection (1B) applies to an assured shorthold tenancy of a dwellinghouse if “(a) it is a fixed term tenancy for a term certain of not less than two years …”. The second tenancy agreement was a fixed term tenancy, pursuant to section 45 of the Act, because it was not a periodic tenancy. It is apparent that a fixed term tenancy may contain a break clause, compare Aylward v Fawaz (1997) 29 HLR 408 at 412, and still be a fixed term tenancy. It did seem to me possible that during the starter period the second tenancy agreement was not a “fixed term tenancy for a term certain of not less than two years” (emphasis added). This is because clause 2.1 of the second tenancy agreement expressly provided for a break clause which permitted the service of two months’ written notice to give up possession of the flat meaning that although it was a fixed term tenancy it was not “for a term certain of not less than two years”. This would have meant that during the starter period there was no term certain of not less than two years because possession might be demanded on two months’ written notice. The starter period lasted for 12 months but might be extended by a further 6 months. After the expiry of the starter period (including any extended starter period) the second tenancy agreement would be a “fixed term tenancy for a term certain of not less than two years” notwithstanding the existence of other break clauses entitling earlier termination because more than the simple provision of written notice was required to rely on those other break clauses.

In a draft judgment distributed to the parties on 5^th August 2018 I found that for these reasons the Judge was right to find that sections 21 (1A) and (1B) did not apply to the notice. This was because the express provisions of section 21(1A)(a) were not satisfied. As a result of that conclusion I had not determined the third issue because it did not arise.

After I had distributed a draft of the judgment to the parties in preparation for a hand down of the judgment on 9 August 2018 Mr James asked for the Court to reconsider the judgment because he submitted that the issue about whether Ms Bamber had a fixed term tenancy of not less than two years had not been a live issue before the Court, and Livewest had conceded that the second tenancy agreement was a fixed term of not less than two years in its Reply and had not sought to resile from its concession. Mr Strelitz, while initially contesting the request for reconsideration, submitted that the matter should be reconsidered so that the third issue could be determined.

I made an order on 9^th August 2018, which was the date scheduled for hand down of the judgment, to provide for reconsideration of the judgment. I did this because it seemed to me right to give Mr James an opportunity to address the point as it was formulated in the draft judgment. I also identified some further matters on which it would be helpful to have further written submissions, and I am grateful to Mr Strelitz and Mr James for their submissions and assistance.

I should record that in my judgment the issue about whether the preconditions in section 21(1A) were satisfied was a live issue at the first hearing. This was because there was consideration of what the Judge had meant in paragraph 32 of his judgment where he had referred to a break clause and the effluxion of time, and Mr James had submitted that each of the preconditions set out in section 21(1A)(a) was satisfied. I accept that Mr Strelitz had not focussed on the words “term certain”, which is why it was right to reconsider the matter and give Mr James an opportunity to engage with that specific issue. Further there was, as at the time of circulation of the draft judgment, no concession on the part of Livewest that there was “a fixed term for a term certain” because Livewest had only admitted only that Ms Bamber “was originally granted a fixed term tenancy of not less than 2 years” in paragraph 7(c) of the Reply, which had said nothing about it being “a term certain of not less than two years” (emphasis added).

However in further submissions (in particular at paragraphs 4 and 5) Livewest has now agreed that the tenancy was “a term certain of not less than 2 years”, meaning that it is common ground that before service of the notice on 9 August 2017 the provisions of section 21(1B) would apply. Civil appellate proceedings are adversarial, and given the express terms of Livewest’s concession it is in my judgment not open to me to hold that the provisions of section 21(1A) were not satisfied by the second tenancy agreement, whatever might have been my earlier view. In these circumstances before service of the notice on 9 August 2017 it is common ground between the parties that the provisions of section 21(1A) were satisfied meaning that section 21(1B) applied to the second tenancy agreement.

Given what is common ground between the parties it is therefore necessary to turn to the issue of whether section 21(1A) applied to require that 6 months’ notice in writing be given pursuant to section 21(1B) by Livewest to Ms Bamber. In my judgment on the giving of 2 months’ notice in the starter period under clause 2.1.1 of the second tenancy agreement, Ms Bamber did not have “a fixed term tenancy for a term certain of not less than two years”. This was because the effect of the service was to leave Ms Bamber with a statutory periodic tenancy pursuant to section 5(2) of the Housing Act. It was common ground between the parties that a statutory periodic tenancy can be brought to an end by service of a notice giving two months’ notice in writing pursuant to section 21(1), and that one notice can both determine a tenancy and satisfy section 21(1), see Fawaz v Aylward.

Mr James submitted that although it was agreed that the effect of service of the notice under the break clause within the starter period was to create a statutory periodic tenancy, section 21(1B) applied because the words “it is a fixed term tenancy for a term certain of not less than two years” in section 21(1A)(a) should be read as “it was a fixed term tenancy for a term certain of not less than two years” (emphasis added). I do not accept that submission because that is not what the statute has provided. I do not accept that giving effect to the plain words of section 21(1A)(a) in this case creates an absurdity. Livewest was able to create the statutory periodic tenancy by giving notice within the starter period, and the provisions of section 21(1A) and 21(1B) had nothing to do with notice in the starter period. Further if a registered provider wishes to recover possession immediately on the expiry of the fixed term then a notice complying with section 21(1B) will need to be given, this is because the tenancy will remain a fixed term tenancy for a term certain of not less than two years once such a notice has been served until the conclusion of the fixed term. In circumstances where there is a limited supply of social housing it might be expected that registered providers will want to recover possession immediately on the expiry of the fixed term.

For the detailed reasons given above I dismiss the appeal. The issues raised by the public law defence served on behalf of Ms Bamber will need to be determined. It might be noted that the time taken to determine the preliminary issue at first instance and on appeal has meant that Ms Bamber has had the benefit of more time than the 6 months provided for in section 21(1B).