Masih, R (on the application of) v Yousaf

A section 8 notice under the Housing Act 1988 need not reproduce the statutory wording verbatim. It is sufficient if it identifies the ground and gives the tenant the information needed to decide what to do and protect against loss of the home. For Ground 8, stating that the tenant owed at least two months’ rent at the relevant dates sufficiently conveys that the rent was claimed to be lawfully due. Defences such as waiver, set-off for repairs, or failure to provide an address under section 48 of the Landlord and Tenant Act 1987 go to whether rent is owed. Section 8(2) applies consistently to mandatory and discretionary grounds. A possession order made after both parties attended cannot be set aside by a later judge. Decisions about directing a separate permission application are case-management decisions governed by the circumstances.

The landlord sought possession of an assured shorthold tenancy under Ground 8 in Schedule 2 to the Housing Act 1988. The notice stated that the tenant owed at least two months’ rent at the relevant dates, but did not use the words rent lawfully due.

Both parties attended the possession hearing, at which District Judge Ayers made a mandatory possession order. District Judge Falvey refused to set that order aside, holding that he had no jurisdiction to do so. Her Honour Judge Davies dismissed the appeal and considered the notice valid, but directed the tenant to make a formal application for permission to appeal out of time from the possession order. Permission was later refused on the papers. The central issues before the Court of Appeal were the jurisdiction to set aside the order, the case-management decision to require a separate permission application, and the alleged defect in the notice.

1. Disposition. The appeal was dismissed unanimously. Lord Justice Floyd gave the reasons, with Lord Justice Davis and Lady Justice Hallett agreeing.

2. Jurisdiction to set aside. It was rightly conceded that District Judge Falvey had no jurisdiction to set aside the possession order made by District Judge Ayers after both parties had attended the hearing. The concession was supported by Lloyds Investment (Scandinavia) v Christen Ager-Nanssen [2003] EWHC 174 (Ch), said to have been approved in Collier and Williams [2006] EWCA Civ 20, and by Roult v Northwest Strategic Health Authority [2009] EWCA Civ 444 and Thevarajah v Riordan and others [2014] EWCA Civ 14. Different principles might apply where the defendant had not attended the possession hearing, as considered in London Borough of Hackney v Findlay [2011] EWCA Civ 8.

3. Case management. The decision to require a formal application for permission to appeal was a case-management decision. The Court of Appeal declined to prescribe when a county court should require a separate application or proceed directly to an appeal. The appropriate course depends on the circumstances, and the decision was not wrong in principle. The example of Islington London Borough Council v Markland was materially different because the tenant had no opportunity to present a defence and the procedure was manifestly unfair.

4. Section 8 notice. Section 8(2) of the Housing Act 1988 requires the ground and particulars to be specified, but does not require verbatim reproduction of the statutory language. Applying the legislative-purpose approach in Mountain v Hastings 25 Housing Law Reports 427, the notice must give the tenant the information needed to decide what to do and to protect against loss of the home. The notice here specified that two months’ rent was owing both when notice was served and at the hearing, unlike the notice considered in Mountain. The word owed was sufficient to convey that the rent was asserted to be lawfully due. Waiver, a repair set-off, and the effect of section 48(2) of the Landlord and Tenant Act 1987 would each provide an answer that the rent was not owed. No separate, legally meaningful distinction between rent owed and rent lawfully due was identified.

5. Result. Section 8(2) applies to mandatory and discretionary grounds alike, so no stricter notice standard applied to Ground 8. Judge Davies had not misdirected herself. Her case-management decision, and Judge Kay’s refusal of permission to appeal out of time, were beyond challenge. Even if the possession appeal had been heard, it should have been dismissed. Using the statutory wording in a notice remained sound advice.

• Court of Appeal (Civil Division). Dismissed the appeal.
• Luton County Court, Her Honour Judge Kay QC. Refused permission to appeal out of time from District Judge Ayers’s possession order on the papers.
• Luton County Court, Her Honour Judge Davies. Dismissed the appeal from District Judge Falvey and directed a formal application for permission to appeal out of time from the possession order.
• Luton County Court, District Judge Falvey. Refused to set aside District Judge Ayers’s possession order but granted permission to appeal.
• Luton County Court, District Judge Ayers. Made a mandatory possession order.