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Birmingham City Council v Bravington

Court of Appeal

Moylan, Newey and Arnold LJ

22 March 2023

The Court of Appeal has held that local authorities can rely on s.233, Local Government Act 1972 (the “1972 Act”) when serving a notice seeking possession under s.83ZA, Housing Act 1985 (the “1985 Act”). Service in accordance with the provisions of that section will be deemed valid service even if the tenant does not receive it.

Jonathan Manning of 4-5 Gray’s Inn Square appeared for Birmingham City Council.

Introduction

If a local authority takes possession proceedings against a secure tenant on an absolute ground for possession under s.84A, 1985 Act, they must first serve a notice of seeking possession in accordance with s,83ZA, 1985 Act. The Court cannot entertain the proceedings “unless the landlord has served on the tenant a notice under this section” (s.83ZA(2)).

In this case, Birmingham sought to serve the s.83ZA notice by way of a police officer attending the tenant’s address, knocking at the door and handing the notice to the woman who answered, identified herself as the tenant’s partner and accepted the notice.

Service of notice seeking possession

After issue of proceedings, the tenant applied for summary judgment on the basis that the notice had never come to his attention and so was not validly served. He argued that good service at common law required the authority to prove that the notice had actually been received by him.

The authority argued that s.233, 1972 Act, permitted them to serve the notice by leaving it at the tenant’s proper address, which they had done. Section 233(1) and (2) provide that in relation to “any notice, order or other document required or authorised by or under any enactment to be given to or served on any person by or on behalf of a local authority or by an officer of a local authority”, any such document “may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.”

The tenant contended that s.233 did not apply to a landlord and tenant notice, relying on the Court of Appeal’s decision in Enfield LBC v Devonish (1997) 29 HLR 691 that the section did not apply to service of a notice to quit. His case was that the purpose of s.233 was not to assist a local authority landlord to comply with the ordinary obligations of all landlords and that it only applied to notices served by the authority in its capacity as a local authority or exercising a public law function. Even if that were wrong, it must still be proved that he received the notice.

The district judge granted summary judgment to the tenant and the circuit judge dismissed Birmingham’s appeal.

Birmingham’s second appeal to the Court of Appeal

The Court of Appeal allowed Birmingham’s second appeal.

(i) Read naturally, the language of s. 233 was not on its face limited to circumstances where an authority might be said to be acting in its capacity as an authority or exercising a public law function.

(ii) Nor was it apparent that holding s.233 to apply generally to notices and other documents which are required or authorised under enactments would give rise to unsatisfactory consequences which Parliament would not have intended. Even if local authorities would be in a better position than other landlords, there was no necessity to treat all landlords in the same way as regards service requirements. Local authority and other landlords are not competitors in a market.

(iii) Other provisions in Part 9, 1972 Act did not depend for their application on the capacity in which an authority acted (e.g. s.234).

(iv) There could be considerable debate as to whether in a particular context a local authority was acting in its capacity as a local authority or exercising public law functions. Parliament had given local authorities powers and duties in connection with the provision of housing. It was therefore by no means evident that a local authority is not acting in its capacity as a local authority if it reviewed rents under s.24, 1985 Act, served a preliminary notice under s.103 in advance of varying tenancy terms under s.102 or (as in this case) served a s.83ZA notice. The Courts have grappled with comparable issues when deciding whether a contention has to be advanced by way of judicial review rather than in ordinary civil proceedings (see e.g. Wandsworth LBC v Winder [1985] AC 461) and whether a defendant is a “public authority” under the Human Rights Act 1998 (see e.g. R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587). It seemed unlikely that Parliament intended the application of s.233 to turn on a distinction which could generate such dispute. Certainty was clearly desirable in the context of provisions dealing with service.

(v) Devonish did not support the tenant’s arguments. The question in Devonish, was whether s.233 applied in relation to an ordinary notice to quit for which there was no particular statutory provision. The Court of Appeal held that it did not because the notice to quit was not required or authorised to be given by or under any enactment but was required to be given at common law if the tenancy was to be determined.

The authority had served the notice by leaving it at the property when the police officer handed it to the tenant’s partner. Applying, Lord Newborough v Jones [1975] 1 Ch 90, the question was whether the notice had been left there in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice is addressed, would adopt. The authority had done so.

That being so, it was not necessary for the authority to prove that the notice had been received by the tenant. It was irrelevant when he became aware of the notice. Section 233 was designed to allocate the risks of a failure of communication and to avoid disputes on issues of fact where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain. The section offers an authority choices as to mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive the notice.

Comment

This is an important decision for local authorities. Not only does it seem to apply to all notices in relation to secure, introductory and demoted tenancies, but the longstanding argument that Devonish prevents an authority from relying on s.233 when serving a statutory notice that others, who are not local authorities, may also have to serve (e.g. in relation to service charges) has been rejected. The Court declined, for example, to follow the obiter comments of the Upper Tribunal purporting to apply Devonish to a service charge notice in Southwark LBC v Akhtar [2017] UKUT 150 (LC).