Sophie Phillips’ case comments on Birmingham City Council v Bravington [2023] EWCA Civ 308

The Court of Appeal has recently held that local authorities are able to rely on section 233 of the Local Government Act 1972 (“the 1972 Act”) when serving a notice seeking possession under section 83ZA of the Housing Act 1985 (“the 1985 Act”). Service will be deemed valid even if the tenant does not receive the notice but where it has been found to be served in accordance with the aforementioned provisions.

Introduction

Where a local authority intends to seek possession pursuant to an absolute ground for possession under section 84A of the 1985 Act, it must first serve a notice seeking possession in accordance with section 83ZA of the 1985 Act. The court is barred from entertaining such proceedings under section 84A “unless the landlord has served on the tenant a notice under this section”.

In the case of Bravington, the local authority (Birmingham City Council) sought to rely upon a notice that had been served by a police officer who attended the property and handed a copy of the notice to a woman who answered the door. She confirmed that she was the tenant’s partner and accepted the notice. Mr Bravington made an application for summary judgment on the basis that there was no reasonable prospect of valid service of the notice. The application was granted and the local authority’s appeal of that decision was also unsuccessful.

Decision of the Court of Appeal

The main question before the Court of Appeal was whether the local authority could place reliance on section 233 of the 1972 Act to establish effective service. In particular, section 233(2) of the 1972 Act provides that a notice “may be…served on the person in question…by leaving it at his proper address”. Pursuant to section 233(4), “the proper address of any person…on whom a document is to be…served shall be his last known address”.

The Court of Appeal considered that the language of section 233 was not, on the face of it, confined only to circumstances where a local authority was acting in its capacity as an authority or exercising a public law function. Newey LJ, in the leading judgment, considered the application of other provisions within the 1972 Act (for example section 234) and whether that was dependent on the capacity of the local authority, which it was found was not.

Further, and more significantly, it was also held that should the language of section 233 be extended more generally to encompass other notices and documents required by other enactments, then this would not have discouraging consequences. Although this could mean placing social landlords and local authorities in a more advantageous position than private landlords, it was confirmed that there is no requirement for all landlords to be treated equally as regards service of documents and notices.

The Court held that the longstanding principle set out in Enfield LBC v Devonish did not assist Mr Bravington. This was on the basis that question in that case was not whether a local authority had to be acting “qua local authority” for section 233 to be applicable, but whether the section applied in relation to an ordinary notice to quit for which there was no particular statutory provision. The Court found that it did not because a notice to quit is not required or authorised to be given under any enactment; instead it is required to be given at common law if the tenancy was to be determined.

As to whether there was in fact good service under section 233 of the 1972 Act, Newey LJ considered that the correct test to be applied is that adopted in Lord Newborough v Jones, namely that a document will be “left” at an address under section 233 of the 1972 Act if it was left there “in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice was addressed, would adopt” [31]. As such, by handing the letter to a person who was at the property, identified herself as Mr Bravington’s partner and accepted the letter enclosing the notice, this was held to meet that test [32].

The final consideration of the Court was whether actual receipt of the notice by Mr Bravington was required under section 233 of the 1972 Act. Newey LJ held that it was irrelevant when Mr Bravington became aware of the notice so long as the local authority had complied with its obligations under section 233 of the 1972 Act; section 233 provides for modes of service which will be deemed to be valid service, even if ultimately the intended recipient does not in fact receive the notice. Section 233 of the 1972 Act is designed to allocate the risks of failure of communication and avoid disputes on issues of fact [41]. Accordingly, the local authority was deemed to have complied with section 233 of the 1972 Act and Mr Bavington had been duly served.

The local authority’s appeal was therefore allowed and a declaration was given that the notice was duly served on Mr Bravington.

Conclusions

This a significant decision for local authorities which provides clarity not only on the application of section 233 but all notices in relation to secure, introductory and demoted tenancies. It confirms that the language used within section 233 has been drafted widely so as to ensure that tenants cannot frustrate the actions of local authorities in seeking possession and cannot rely upon the principles as set out in Devonish when served with notices which are not required or authorised under an enactment.

 

Sophie Phillips has developed a successful housing practice and accepts instructions in matters across the spectrum of housing law including possession proceedings, disrepair and anti-social behaviour injunctions. She acts on behalf of Registered Social Landlords, Local Authorities, private landlords and tenants.

Areas of practice:

  • possession proceedings
  • anti-social behaviour
  • disrepair
  • homelessness
  • unlawful eviction
  • trespass
  • committals
  • injunctions

If you would like to book Sophie, please contact one of her Clerks:

Senior Clerk – Andy Reeves on 0113 213 5252

Talia Webster on 0113 202 8609

Joshua Duree on 0113 213 5246

Mike Alexander on 0113 2135268

Ben Ellison-Tope on 0113 2135207