London Borough of Islington v Dyer

A statutory notice of proceedings for possession may comprise more than one document. Housing Act 1996, section 128 imposes no single-page or single-document requirement and prescribes no form. The question is objective: whether the documents were intended to perform, and did perform, the statutory notice function together. Document labels are not determinative. An accompanying leaflet may therefore supply information required by section 128(7), provided a reasonable tenant would understand that the documents should be read together.

The Council granted the respondent an introductory tenancy. It served a notice of proceedings for possession citing rent arrears and an alleged assault. The document labelled the Notice did not contain the advice required by section 128(7) of the Housing Act 1996, but an accompanying Information Leaflet did.

The District Judge made a possession order. HH Judge Baucher allowed the respondent’s appeal, holding that the leaflet was not part of the statutory notice. The Council appealed to the Court of Appeal. The central issue was whether the notice could validly comprise the Notice and the accompanying Information Leaflet.

The Council’s appeal was allowed. Patten LJ delivered the judgment, with which Proudman J and Sir Colin Rimer agreed.

1. Statutory notice. The court proceeded on the assumption that the requirement in section 128(7) of the Housing Act 1996 was mandatory. Section 128 contains no restriction requiring a notice to be confined to one page or one document. As there is no prescribed form, whether several documents constitute the notice is an objective question.
2. Objective assessment. The relevant question is whether the documents were intended to, and did, perform the function of a section 128(1) notice. The labels used by the landlord cannot determine the statutory issue. A reasonable recipient’s understanding is important, including whether the documents were intended to be read together. Express incorporation would remove doubt, but it is not essential.
3. Application. The Notice directed the tenant to read it and all the notes carefully. The Information Leaflet stated that it accompanied the notice and contained the section 128(7) advice. A reasonable tenant would understand that both documents needed to be read together to understand the proposed possession proceedings. They therefore operated together as the statutory notice, even though only one document was called the Notice.
4. The court supported this conclusion by analogy with City of London Corp v Devlin [1997] 29 HLR 58, where a separate covering letter was treated as completing statutory notice formalities. Judge Baucher had attached too much significance to the drafting and nomenclature of the documents. Her contrary construction was rejected.

• Court of Appeal (Civil Division): [2017] EWCA Civ 150. The Council’s appeal was allowed.
• County Court in Central London: HH Judge Baucher allowed the respondent’s appeal on 18 December 2014, reversing the possession order made by District Judge Sterlini on 15 July 2014.