Birmingham City Council v Drew Bravington

The Court of Appeal held that section 233 of the Local Government Act 1972 applies to a notice served by a local housing authority under section 83ZA of the Housing Act 1985 and that, on the facts, the notice in issue was validly served. The court adopted a practical test for what it means to "leave" a document at an address: the document must be left "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" (following the approach in Lord Newborough v Jones). The judge further held that, where service in accordance with section 233 is established, actual receipt by the tenant is irrelevant because the statutory modes of service allocate the risk of failure of communication and are intended to be effective even if the addressee does not in fact see the document. The appeal was therefore allowed and the summary judgment application of the tenant was dismissed.

This was an appeal by Birmingham City Council against an order dismissing its possession claim against its secure tenant, Mr Drew Bravington. The council relied on the "absolute ground for possession for anti-social behaviour" in section 84A of the Housing Act 1985, having served a notice under section 83ZA. The tenant denied having seen the notice and obtained summary judgment in the county court, a decision upheld on first appeal to the circuit bench. The council appealed to the Court of Appeal.

Nature of the claim: possession of a council flat on the basis of convictions said to satisfy Condition 1 of section 84A; the tenant sought summary judgment that the notice under section 83ZA had not been validly served.

Issues framed:

• whether section 233 of the Local Government Act 1972 applies to notices under section 83ZA of the Housing Act 1985;
• if so, whether the statutory service requirements under section 233 were met on the facts;
• whether proof of service under section 233 is conclusive even if the tenant says he never received or saw the notice.

Reasoning and findings: the court read section 233 naturally and concluded it extends to any document required or authorised by or under an enactment to be given to or served on any person by or on behalf of a local authority, subject only to express exclusions (for example documents to be given in court proceedings). The earlier decision in Enfield LBC v Devonish was distinguished: Devonish held only that section 233 did not apply to a notice required by common law rather than by statute. The court adopted the test from Lord Newborough v Jones for what it means to leave a document at an address — that it be left in a manner a reasonable person would adopt to bring it to the addressee's attention. On the facts, the notice had been handed to a person in the property identifying herself as the tenant's partner and accepting the letter; that conduct satisfied section 233. The court further held — by analogy with section 23 of the Landlord and Tenant Act 1927 and authorities such as Chiswell and Rushmoor v Reynolds — that service in accordance with section 233 is effective even if the addressee does not in fact see the document; the statutory modes of service are intended to allocate the risk of communication failure and to avoid intractable factual disputes. The Court of Appeal allowed the appeal, set aside the summary judgment for the tenant and declared the notice duly served.

Appeal allowed. The Court of Appeal held that section 233 of the Local Government Act 1972 applies to notices under section 83ZA of the Housing Act 1985; the notice in issue had been "left" at the tenant's proper address in a manner a reasonable person would adopt (handed to the tenant's partner at the property) and, once service in accordance with section 233 is proved, actual receipt is irrelevant. Accordingly the notice was duly served and the tenant's summary judgment was dismissed.

County Court at Birmingham: District Judge Chloë Phillips (8 July 2021) — summary judgment in favour of defendant dismissed the council's claim. His Honour Judge Boora, County Court at Birmingham (4 February 2022) — dismissed the council's first-tier appeal. Court of Appeal (this judgment) [2023] EWCA Civ 308 — appeal allowed.