Minister v Hathaway [2021] EWCA Civ 936, 23 June 2021

Minister v Hathaway [2021] EWCA Civ 936, 23 June 2021 

Assured shorthold tenancies –  Energy performance certificates – 21 Notice – Validity 

The Facts 

The appellant tenant was the assured shorthold tenancy of a property pursuant to a 1-year tenancy granted on 19 March 2008. Since its expiry he had occupied by virtue of a statutory periodic tenancy, which arose by virtue of s.5(2) the Housing Act 1988.  

The landlords served a s.21 notice on the tenant on 6 December 2018. They had not served an Energy Performance Certificate (EPC) at any time prior to the s.21 notice. The claim was dismissed at first instance, but on appeal HHJ Simpkiss concluded that service of an EPC was not required and that the s.21 notice was valid and granted the landlords possession.  

The tenant appealed, arguing that that section 41(3) of the Deregulation Act 2015 provides that section 38 of the 2015 Act inserting section 21A of the 1988 Act applies to any assured shorthold tenancy which is in existence on 1 October 2018. 

Held  

The Court of Appeal dismissed the appeal.  Arnold LJ (with whom Baker LJ and Henderson LJ agreed) analysed the relevant statutory provisions. Sections 38 and 39 of the 2015 Act inserted the new s.21A and s.21B into the 1988 Act. Those sections provide that a s.21 notice cannot be given at a time when the landlord is in breach of a prescribed requirement. Prescribed requirements related to (a) the condition of dwelling-houses; (b) the health and safety of occupiers and (c) the energy performance of dwelling-houses.  

The parts of s.38 and s.39 of the 2015 Act which introduce s.21A and s.21B came into force on 1 July 2015. That enabled the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 to come into force on 1 October 2015. Section 41 of the 2015 Act, which governs the application of ss.33 to 40, also came into force on 1 October 2015. Section 41 stipulates that ss.38-39, and the prescribed requirements, only apply to assured shorthold tenancies granted on or after 1 October 2015. Accordingly, by virtue of section 41(1) and (2), sections 38 and 39 only apply to assured shorthold tenancies granted on or after 1 October 2015. 

However, section 38 (but not s.39) states that it also applies to any assured shorthold tenancy which was in existence on 1 October 2018. However, Regulation 1(3) of the 2015 Regulations provides that those requirements only apply to assured shorthold tenancies granted on or after 1 October 2015. The Court of Appeal held that as the Secretary of State has not exercised his power to extend this provision to any tenancy in existence on 1 October 2018, the requirements in s.21A and s.21B to provide prescribed information to the tenant, including information about energy performance, only apply to assured shorthold tenancies in existence on or after 1 October 2015. In this case the tenant’s tenancy predated that by six years. 

Lesson learnt  

The case is useful reading when trying to decipher what the many different legislative provisions and regulations mean and how to fit together. The fact that this is the second case to reach the Court of Appeal regarding EPC and s21 notices in the space of 1 year is perhaps indicative of just how convoluted the different provisions and regulations are.