- Section 8 notices - reasonable recipient test
- Section 8 notices - dispensing with requirement of notice
- Acceptance of rent after an order for possession
- Meaning of "dwelling"
- False statements and Ground 5
- Meaning of "only or principal home"
- Rent claims and Ground 8
Section 8 notices
“reasonable recipient” test
 EWCA Civ 175
The reasonable recipient test set down in Mannai Investment Co Limited v Eagle Star Assurance Co Limited  AC 747 applies to notices served under s8 of the Housing Act 1988.
The Appellant was the landlord and the Respondent the tenant under an assured shorthold tenancy. The tenant was in rent arrears. On 7 November 2018, the landlord served notice on the tenant under s8 of the 1988 Act, stating that possession proceedings would not begin until 26 November 2017, when he meant to say 26 November 2018. The tenant argued that the notice was invalid.
Does the Mannai test applies to statutory notices served under s8 of the 1988 Act.
The judge held that, though the error was an obvious typographical one and the reasonable recipient would have realised that the intended date was 26 November 2018, the reasonable recipient Mannai test did not apply to s8 notices, applying Fernandez v McDonald  EWCA Civ 1219. The statute was clear and precise, it was not difficult for landlords to comply and the defect could be easily cured by service of a further notice. The possession claim was dismissed.
Decision on appeal
The Court of Appeal first pointed out that there was a wealth of prior authority to the effect that the Mannai approach to interpretation is applicable to statutory notices, but with the qualification that it remains necessary to consider whether the notice satisfies the relevant statutory requirements. That involves consideration of the purpose of those requirements.
The Court then went on to examine the decision in Fernandez, and highlighted that the actual reasoning of Hale LJ in that case had been that a reasonable recipient would not have understood the landlord’s intentions regarding the date in the notice. Accordingly, the reasonable recipient would not have understood what the server intended to convey, and Mannai therefore did not assist the landlord on the facts of that case in that case. However, nothing in the decision suggested that Mannai did not apply to statutory notices at all.
Further, whatever Lewison LJ may have said in Spencer v Taylor  EWCA Civ 1600, the court is able to correct obvious mistakes in a statutory notice if it is satisfied that a reasonable recipient would have realised both that a mistake had been made and what the server actually intended to convey. As set out above, in all cases, it is still necessary to consider whether the notice complies with the statutory requirements, including the purpose of those requirements.
Additionally, Fernandez is not authority for the proposition that Mannai does not apply where the statutory requirements are clear and precise, are not difficult to comply with and there are no serious consequences for the defaulting party, as the judge at first instance thought.
Accordingly, it was held that the Mannai test applies to s8 notices.
For the reasons set out above, it was then necessary to establish whether the statutory requirements had been complied with. Unlike a notice under section 21 of the Housing Act 1988, the date in a s8 notice has no contractual significance. Its purpose is to give the tenant time to deal with the threatened proceedings. The notice contained an obvious typographical error and did, on a reasonable reading, give the tenant the requisite two weeks’ warning.
The appeal was therefore allowed.
This is a helpful decision, not only because it makes it clear that the Mannai test applies to notices served under s8 of the Housing Act 1988, but also because it clarifies the interaction between the decisions in Fernandez and Spencer v Taylor such that there is now no inconsistency between the ratios of both.
Section 8 notices
Social landlord - dispensing with requirement for notice
 EWCA Civ 496
In each case local authority brought possession proceedings, against a secure tenant, having served notice under s83 of the Housing Act 1985. It then transferred its housing stock to a registered social landlord, at which point the tenant became an assured tenant. The RSL continued the possession proceedings but had obviously not served notice under s8 of the Housing Act 1988. It therefore asked the court to dispense with the notice under s8(1)(b). The judge did so without having regard to the individual facts of the case. The tenants appealed.
In an appropriate case the court can dispense with the notice in such circumstances on terms that the RSL will not seek to do more than it could have done if the tenancy had been secure, eg not rely upon one of the mandatory grounds. However, the judge should also have regard to the individual facts of the case in deciding whether or not to dispense with the notice. The case was therefore referred back to the DJ to determine that issue at the same time as the substantive possession claim.
- " ... the discretion under s8(1)(b) is wide enough to allow for dispensation in cases where the reality is that the same breach of the same terms of the same tenancy is being relied on and where the relief being sought is no different. Where the court will be performing the same exercise under the 1988 Act as it would have been performing under the 1985 Act, and where therefore the tenant is in no way prejudiced by a substitution of the RSL as new claimant, I can seen reason why the court should not make the substitution but on terms that the RSL will not seek to go outside that which it could have asserted if the tenancy had been no substitution (i.e.. he can argue for a set-off, if that could have been argued in the "secure" tenancy contact). I am however extremely trouble, despite what may seem at first sight its obvious practical advantages, about decreeing that it is unnecessary to examine the facts of individual cases .. at the stage when substitution and dispensing with notices are being considered." (para 17, Waller LJ).
Acceptance of rent after order for possession
 EWCA Civ 1011
In this case it was held that a landlord who had accepted rent from an assured tenant after the order for possession, pursuant to an agreement not to enforce the order if a certain sum was paid each week off the arrears plus the current rent, did not create a new tenancy. This only occurred when the landlord increased the monthly rent payable.
 UKHL 43
Housing Act 1988, s1 provides that a tenancy can only be assured if it is a tenancy under which a dwelling-house is let as a separate dwelling. What is a dwelling? Is it necessary for the property to contain a kitchen? The House of Lords has decided that the answer is no".
- "Dwelling is not a term of art, but a familiar word in the English language, which .. connotes a place where one lives, regarding it and treating it as home. Such a place does not cease to be a dwelling merely because one takes all or some of ones meals out; or brings takeaway food for consumption on heating devices falling short of a full cooking facility. Decisions on the infinite factual variety of cases should neither be treated nor cited as propositions of law. I would not myself, for example, regard a bed, any more than cooking facilities, as an essential prerequisite of a dwelling; every case is for the judge of trial but I would have no difficulty with a conclusion that one could live in a room, which is regarded and treated as home, although taking ones sleep, without the luxury of a bed, in an armchair, or in blankets on the floor."
Citation from speech of Lord Irvine (paragraphs 3 and 4). Compare the view of Lord Bingham on the bed point (paragraph 12).
 EWCA Civ 639
Ground 5 of Schedule 2 to the Housing Act 1985 sets out the following ground for possession:
"The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:
(a) the tenant,
or (b) a person acting at the tenant's instigation.”
The tenants mother made a false statement to assist her daughter to acquire a tenancy by way of an exchange. The judge concluded that the daughter did not know of the false statement at the time the tenancy was granted and had not instigated the statement made by her mother who was a woman doggedly and determinedly content to meddle in her daughter's affairs as she thought best and without reference to her daughter where she considered that appropriate.
On appeal L submitted that if a daughter makes no attempt to dissuade her mother from acting on her behalf, that amounts to instigation within the meaning of ground 5. The Court of Appeal disagreed.
- "The word instigate means more than tolerate. It means to bring about or initiate. The Latin source of the word, as mentioned in the Concise Oxford Dictionary, is instigare: to urge or incite. The ground refers to instigation and not merely to someone acting on behalf of the tenant. On the judge's findings of fact, there was no instigation by the respondent in this case.
- Moreover, I would hold that the instigation must be of the false statement and not merely instigation of action in general on behalf of the tenant. It is true that sub-paragraph (b) could have, but does not, state making a false statement at the tenant's instigation. However, the expression as a whole clearly links the instigation with the false statement, in my view. Moreover, the word "instigate" fits more comfortably in this context with action to promote a specific act, than with a general instruction to act."(Pill LJ, at paras 32 and 33)
Only or principal home
 EWCA Civ 1581
This phrase is an important part of the definition of, amongst other things, an assured tenancy. The tenancy will only continue to be assured if and so long as the tenant occupies the dwelling-house as his only or principal home (s1 of the Housing Act 1988). In this case the issue was whether or not the landlord occupied a room in the premises as his only or principal home for the purposes of the Protection from Eviction Act 1977. If he did so, the tenant, with whom he shared the accommodation, had an excluded tenancy and the landlord could evict him without a court order. L spent a lot of time in the neighbouring property, which he also owned, and was on the electoral register there but he did not sleep there. He slept in the accommodation that he shared with the tenant. Where a person sleeps is of the most enormous importance in determining whether that was his only or principal home. The accommodation where he slept was his only or principal home. Thus, the tenancy was an excluded tenancy and the eviction was lawful.
- ".. where a person sleeps is of the most enormous importance in determining whether that is his only or principal home. Circumstances might arise where that might not be decisive, but on any view it is a matter which is going to influence a court very considerably". (Longmore LJ at para 10).
(See also Uratemp Ventures Ltd v Collins  UKHL 43, above where the HL held that dwelling is not a term of art but a familiar word in the English language so that a place would not cease to be a dwelling merely because there is no kitchen and the tenant takes all or some of his meals out).
And see also Secure tenancies page.
Rent claims - possession
Ground 8 - adjourning to clear a cheque
 EWCA Civ 342
Ground 8 is a mandatory ground. If the tenant owes at least 8 weeks rent the court must make an order for possession. What happens if the tenant turns up at court with a cheque for the arrears? Can the judge adjourn the claim to see if the cheque will clear? The basic rule (as with any other debt) is that a landlord is entitled to have the rent paid in cash unless he has expressly or impliedly agreed to accept rent by some other method, such as by cheque. Where a cheque is accepted it operates as a conditional payment from the time when the cheque was delivered (Homes v Smith (2000) Lloyds Law Rep (Banking) 139). And so ...
- "An uncleared cheque delivered to the landlord or his agent at or before the hearing and which is accepted by him, or which he is bound by earlier agreement to accept, is to be treated as payment at the date of delivery provided the cheque is subsequently paid on first presentation. At the date of the hearing therefore, the judge has jurisdiction to adjourn the claim to see whether the cheque will be paid on the grounds that he cannot at that time be satisfied that the landlord is entitled to possession, though I do not think he would be bound to do so if he had reason to conclude that the cheque would not be paid. In the ordinary way, the adjournment should only be for, say, seven days to enable the cheque to be cleared - the adjournment of 56 days in this case was obviously excessive. If the cheque is not paid at first presentation then the order for possession must be made, the date of the hearing for the purpose of Ground 8 being the earlier hearing and not the adjourned hearing." (Tuckey LJ at para 11).
But this does not give tenants carte blanche to turn up at court waiving cheques and think that they will always be able to get the matter adjourned:
- ".. the decision whether or not to make a possession order or to adjourn will be a judicial decision, taken in the light of the evidence in the particular case. District judges will be entitled on appropriate evidence to be satisfied that the landlord is entitled to possession on Ground 8, and to reject improbable or unscrupulous last minute offers of payment by cheque. The issues is not a particularly complex one. Any tenant who wishes to persuade a judge or district judge to adjourn a Ground 8 claim for possession on the basis that he has paid by cheque will need, as here, to establish that there are fund to meet the cheque, and that it will be honoured on presentation." (Wall LJ, at para 25).
 EWCA Civ 1736
Where at the date of the hearing there are still at least 8 weeks arrears the power to adjourn the hearing date for the purpose of enabling the tenant to reduce the arrears to below the ground 8 threshold may only be exercised in exceptional circumstances. The fact that the arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance. Dyson LJ:
- "30. It follows from this survey that, far from providing support for Mr Luba's submissions, the authorities tend in our judgment to show that the court should not adjourn a hearing date for the purpose of enabling a defendant to rely on a subsequent change in the law or the facts and thereby defeat the claim.
- 31. Does it follow that it can never be a proper exercise of the court's discretion to grant an adjournment for the purpose of enabling a tenant to reduce the arrears to a figure below the 8 weeks' threshold before the adjourned hearing date? During the course of argument, a number of extreme examples were considered. Suppose the tenant is on his way to court on the hearing date carrying all the arrears of rent in cash in his pocket, and he is robbed and all his money is stolen. Or suppose the tenant is in receipt of housing benefit, and the housing benefit authority has promised to pay all the arrears of housing benefit, but a computer failure prevents it from being able to do so until the day after the hearing date. Examples of this kind can be multiplied.
- 32. On behalf of the respondents it is submitted that, even in such cases, there is no power to grant an adjournment: the principle that an adjournment may not be granted for the purpose of enabling a tenant to pay off sufficient arrears to defeat the claim for possession is absolute. But the power to adjourn before the court is satisfied that the landlord is entitled to possession has not been abrogated by the Housing Act. Parliament could have insisted that the power to adjourn should never be exercised if the sole reason for the adjournment is to enable the tenant to reduce arrears of rent below the ground 8 threshold and thereby defeat the claim for possession. It chose not to do so. Subject to the effect of section 9(6), therefore, the jurisdiction to grant adjournments remains. We acknowledge therefore, that, although there are powerful arguments in favour of the absolute principle contended for by the respondents, there may occasionally be circumstances where the refusal of an adjournment would be considered to be outrageously unjust by any fair-minded person. We hold that the power to adjourn a hearing date for the purpose of enabling a tenant to reduce the arrears to below the ground 8 threshold may only be exercised in exceptional circumstances. Cases such as those to which we have referred in para 31 above might fall into this category. But the fact that the arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance. It is a sad feature of contemporary life that housing benefit problems are widespread. To a substantial extent, these are no doubt the product of lack of resources. But we do not consider that the non-receipt of housing benefit can, of itself, amount to exceptional circumstances which would justify the exercise of the power to adjourn so as to enable the tenant to defeat the claim.
- 33. We acknowledge that this conclusion will lead to tenants who are in receipt of housing benefit having no defence to a claim for possession in circumstances where they are not at fault. The statutory scheme is, therefore, potentially draconian in its application."
Ground 8 - money paid into court
Etherington v Burt
 EWHC 95 (QB)
Claim for possession based on rent arrears, including reliance on Ground 8. The judge took into account moneys that T had been ordered to pay into court, which brought the sum outstanding below the Ground 8 level for mandatory possession. L appealed but was unsuccessful. Fulford J at paras 11, 12 and 19:
- "11. .. allowance was made for the respondents compliance with the order of 18 January 2002 that he should pay the sum of 1,100 into court on account of arrears of rent, reducing the overall figure to 469.50, which was self-evidently below the threshold figure of 880...
- 12. The appellants argument is that the court order expressed the payment in as a payment to abide the event, and they submit this means they were not free to take the money out without accepting it in full and final settlement of the proceedings. It is their contention that the judge should not have treated this sum in the same way as if it had been paid over to the appellants, not least, so it is argued, because the money still belonged in reality to the respondent. They liken this sum to a Part 36 payment (offers to settle and payments into court). Accordingly, the appellants submit that in order for money to operate to reduce rent arrears it must be immediately available to the landlord.
- 19. In my judgment the appellants are wrong in their submission that only sums already paid over to the landlords should count towards reducing rent arrears, and that any money that the court has ordered should be paid in on account of rent arrears must be ignored. I accept the submissions of the respondent that in this regard the judge exercised his powers under Part 3 rule 1 of the Civil Procedure Rules 1998, and this money was held as a security, to abide the event. As of the date of hearing the sum of 1,100 was available, therefore, in court on account of rent arrears, subject only, in reality, to the determination of the counterclaim. Consistent with that interpretation part of the judges order on 12 June 2002 was that this sum should be paid to the appellants: 3. The money in Court together with any interest be paid out to the Claimants solicitors. Accordingly, in my judgment, at the moment the judge made his order and arrived at the final relevant calculation of the figures, the real position was that only the sum of £469.50 was outstanding by way of arrears of rent, and I consider the submission that he should have ignored the £1,100 that he was simultaneously ordering to be paid out in part satisfaction of the arrears would have led to an artificial and inequitable result. I am satisfied that this approach to monies previously ordered to be paid into court on account of rent arrears to abide the determination of a counterclaim, and which are paid out to the landlord as part of the final order of the court made on the relevant day for these purposes (the date of the hearing), is entirely consistent with the objective and the language of Ground 8, namely there must exist eight weeks unpaid rent as at the date of the hearing. In the absence of any authority to the contrary, the judge was right to treat this sum in the way he did, and accordingly I dismiss this ground of appeal".
Use of ground 8 by registered social landlords
R (Weaver) v London & Quadrant Housing Trust  EWHC 1377 (Admin)
London & Quadrant Housing Trust v Weaver  EWCA Civ 587
The High Court held that the claimant, a registered social landlord, was a public authority within the meaning of the Human Rights Act 1998, so that its decisions were open to judicial review and subject to the HRA; but dismissed the tenant's challenge to the claimant's decision to serve a notice seeking possession on Ground 8. In the CA the decision that the housing association was a body susceptible to the HRA was upheld but on slightly different grounds.
The claim was for possession based on rent arrears which exceeded eight weeks. The policy of the landlord was to use Ground 8, the mandatory ground for possession in respect of assured tenancies where there are at least eight weeks rent in arrears at the date of the notice seeking possession and at the date of the hearing. There was a history of arrears, court hearings and payments. One claim for possession was dismissed because there were not eight weeks arrears at the date of the notice seeking possession. A new s8 notice was then served. At that time there were over nineteen weeks rent in arrears. This case was an application for judicial review by the tenant seeking to challenge the landlord's decision to serve the notice. It failed in the High Court on the merits. There was then an appeal to the CA, which considered only the issue of the applicability of the HRA.
The High Court held that the allocation and management of housing stock, including the service of a notice of seeking possession carried out by the landlord were functions of a public nature, so that in relation to those functions the landlord was to be regarded as a "public authority" within the meaning of s6(3)(b) of the Human Rights Act 1998 (paras 55 to 63). In principle therefore the decision to serve a notice could be challenged by way of judicial review on conventional public law grounds (para 64).
The CA approached the matter slightly differently. Whether or not a housing association was susceptible to the Human Rights Act 1998 was to be determined by reference to whether a) the landlord was a hybrid authority carrying out some public functions and b) whether the specific act complained of was a private or a public act. See further Human rights act defences.
Tenant's argument on the merits
Back to the High Court: In that court, the tenant based her challenge to the notice on a sentence in the tenancy agreement that referred to Housing Corporation guidance, which was a statement on behalf the landlord in the following terms:
- "In providing a housing service we will comply with the regulatory framework and guidance issued by the Housing Corporation".
The relevant paragraph in the guidance note produced by the Housing Corporation contained the following sentence:
- "Before using ground 8, the association should first pursue all other reasonable alternatives to recover the debt."
The Housing Corporation's Regulatory Code and Guidance also stated:
- "Legal possession of a property is sought as a last resort".
The tenant argued that these sentences gave rise to "legitimate expectation" that the landlord would not seek possession otherwise than in accordance with that guidance and that its conduct in serving the notice on Ground 8 was in breach of the guidance. She argued that reasonable alternatives to the use of Ground 8 were an agreement with the tenant to pay the arrears, a court claim for a money judgment or the use of the discretionary grounds 10 and 11. The tenant criticised the landlord's practice of regularly using ground 8, a practice which it adopted because it had made a significant contribution to reducing problems with arrears.
High Court decision on merits
The court rejected the tenant's arguments, largely because there was no evidence from the tenant that she was affected by the words in the tenancy agreement that incorporated the guidance from the Housing Corporation. Richards LJ at paras 85 and 86:
- "In my judgment, the claimed legitimate expectation is far too tenuous and general in character to be enforceable in public law, and there was in any event no breach of it.
- The claimant herself has not given evidence that she had the expectation alleged or even that she knew of the term of the contract from which the expectation is said to have arisen. Indeed, it is a matter of concession rather than hard evidence that LQHT's relevant standard terms and conditions were incorporated in her agreement at all. Thus the expectation is simply an artificial construct derived from the standard terms and conditions and attributed to the claimant, rather than a genuinely held expectation of her own. I regard that as important. A legitimate expectation arises where a decision-maker has led someone affected by the decision to believe that he or she will receive or retain a benefit or advantage, whether procedural or substantive, and it is unfair or an abuse of power to thwart that expectation. Since the claimant was not led to believe in this case that LQHT would act differently from the way in which it did act, it is difficult to see how any relevant expectation can be said to be in play. This point is different from, and logically prior to, the issue of reliance on an expectation. I would accept that reliance is not always necessary, though the absence of reliance may be relevant to the enforceability of an expectation. But in this case not only did the claimant not rely on the representation in question; she did not even know about it."
However, even if the tenant had given evidence that she was aware of the terms of the tenancy agreement, and the details of the guidance, she would still not have succeeded as the statement in the contract which said "in providing a housing service we will comply with the regulatory framework and guidance issued by the Housing Corporation" was not ..
- " … a clear, unambiguous and unqualified promise or commitment to do everything set out in the guidance issued by the Housing Corporation. The guidance is by its nature guidance, not prescription. The regulatory provisions to which I have referred place the Housing Corporation in a strong position to ensure that it is substantially followed, but there is nothing that turns it into the equivalent of a statutory rule-book... The statement in LQHT's standard terms and conditions cannot have been intended to give the guidance a status it does not have under the statute or in the Housing Corporation's own practice. At most, Mr Arden's description of it as a "target duty" is more apt. Moreover, if the statement has the character of a promise, there is no reason why it should not be treated as a contractual promise, since it features in the contractual terms and conditions; but it is no part of the claimant's case that the statement is contractually binding. If it lacks the qualities to give it contractual force notwithstanding that it is located in a contract, I am not satisfied that it can properly be treated as having the qualities that justify its enforcement in public law as a legitimate expectation." (para 87).
The wording in the relevant guidance was also too vague to help:
- "A further problem in the claimant's way is the wording of the relevant guidance. The broad statements to the effect that possession proceedings should be brought "as a last resort" are obviously too general to assist the claimant. Her case has to rest on the specific statement … that "[b]efore using ground 8, associations should first pursue all other reasonable alternatives to recover the debt". Yet even the reference to "all other reasonable alternatives" introduces significant scope for differences of judgment. In particular, it does not in my view require that, if possession proceedings are brought, they should first be brought on discretionary grounds 10 and 11 (whether always or as a general rule) and that mandatory ground 8 should only be used in the event that proceedings on the discretionary grounds have been unsuccessful in securing payment of the debt or provide no prospect at all of securing payment." (para 88).
Finally, the judge concluded that:
- "Looking at the overall history of LQHT's dealings with the claimant, I am not persuaded that LQHT failed to use all reasonable alternatives to recover the debt before using ground 8. In particular, in the light of the history of substantial and repeated defaults, LQHT was in my view entitled to take the view that reliance on ground 10 or 11 did not provide a reasonable alternative means of recovering the debt, and its reliance on ground 8 was in the circumstances in accordance with the relevant guidance and justified." (para 90).
The claim for judicial review in the High Court based on conventional public law grounds of breach of legitimate expectation therefore failed. This also meant that the claim based on the ECHR, article 8 (respect for her home) failed even to get off the ground. As there was no breach of a legitimate expectation, the decision to evict could not have been disproportionate (paras 92-97).
The appeal to the CA was an academic exercise as the trial judge had found that even if the RSL was a public body the tenant had no legitimate expectation that she would not be evicted.