The case of Sidhu v Cassell was recently heard at the County Court on appeal. The case of Sidhu addressed a situation where the initial pre-tenancy Gas Safety Certificate was not merely served late but was fundamentally non-compliant. Sidhu v Cassell may provide some guidance on when an initial, defective Gas Safety Certificate might be “cured” by subsequent compliant checks.
On appeal, Her Honour Judge Melissa Clarke was asked to consider whether, for the purposes of serving a valid section 21 notice, it was sufficient for a landlord to have only retained and served the latest two Gas Safety Certificates.
The Facts
The landlords had arranged a Gas Safety check prior to the tenancy commencement in May 2021. The tenants received a copy of this 1st GSC. However, this initial GSC failed to provide the landlords full name and address. The landlords did carry out subsequent GSCs in 2022 and 2023, both of which were fully compliant.
Possession was sought via Section 21 in 2024. The tenants argued the notice was invalid because the initial GSC was non-compliant, which should bar the landlords from ever being able to recover possession through the Section 21 process.
The issues
The Deputy District Judge at first instance found that the omission of the address constituted a breach of the regulations. However, he held that this was at the “minor end of the scale” of breaches and was cured by the later provision of subsequent, compliant GSCs (the 2nd GSC from 2022 and the 3rd GSC from 2023).
The ability of a landlord to serve a Section 21 notice is dependent on compliance with “prescribed requirements,” notably those outlined in the Gas Safety Regulations. Section 21A of the Housing Act 1988 prevents a landlord from serving a notice if they are in breach of a prescribed requirement.
The leading Court of Appeal case, Trecarrell House Ltd v Rouncefield, established a key principle. The requirement to serve a GSC prior to occupation is a prescribed requirement, but the failure to serve it on time can be cured by late service of the otherwise compliant GSC.
Sidhu v Cassell looked at whether the “curing” principle in Trecarrell could be extended where the landlord holds a defective GSC but also holds two subsequent GSCs that are completely compliant with the regulations.
The Decision
On appeal, HHJ Clarke agreed that the 1st GSC’s failure to specify the landlord’s address meant it could not be relied upon as evidence of compliance with the prescribed requirement under Regulation 36(6)(b) of the Gas Safety Regulations.
Crucially, the appeal court upheld the initial possession order, concluding that the failure regarding the initial GSC was not fatal because of the subsequent compliance.
The court reasoned that a proper construction of the statutory scheme indicates that Parliament did not intend for a landlord to be barred from using Section 21 indefinitely due to an initial, unrectified error, especially after subsequent compliant checks had been completed.
The court concluded that the relevant legal obligations permitting a Section 21 notice to be served are compliance with the prescribed requirements in relation to at most, the two most recent checks before the notice is served.
Therefore, in tenancies that have run long enough for two or more annual gas safety checks to have been carried out since the tenant entered occupation, the landlord must evidence compliance with the prescribed requirement under Regulation 36(6)(a) by producing the two most recent, fully compliant GSCs. Once two further checks have been made, the landlord has no obligation to retain or provide a gas safety record from earlier periods (such as the initial pre-occupation GSC) to evidence compliance with Regulation 36(6)(b).
The practical result of Sidhu v Cassell is that as long as a landlord has the last two GSCs and they are strictly compliant, they should be able to proceed with a Section 21 notice, even if the pre-tenancy GSC contained a remediable defect.
Comments
While Sidhu v Cassell provides a mechanism to rely on subsequent compliant records, the importance of accuracy from the start cannot be overstated. All GSCs must strictly comply with the requirements, including providing the landlord’s name and address.
The safest course of action remains ensuring that the first GSC (pre-occupation) and all subsequent GSCs are fully compliant and served appropriately. Although Sidhu v Cassell seems to suggest that it could be sufficient to simply serve the latest two GSCs providing that they are fully compliant.
The Sidhu judgment confirms that regulatory protection should not lead to an “absurd result” where a minor historic error forever bars possession when safety has subsequently been confirmed by multiple compliant checks. Nonetheless, meticulous record-keeping and strict compliance remain the best defence against a Section 21 challenge.
If you have any questions in respect of the above case, or any other aspects of residential possession, please do not hesitate to get in touch with our Residential Possession team.