March 23rd, 2023 by James Goudie KC

The appeal in BIRMINGHAM CITY COUNCIL v BRAVINGTON (2023) EWCA Civ 308 raises issues as to whether Section 233 of the Local Government Act 1972 (“the 1972 Act”) applies in relation to the service by a local authority of a notice under Section 83ZA of the Housing Act 1985 (“the 1985 Act”) and if it does, whether the requirements of Section 233 were met on the facts of this case and the consequences of that.

In general, a secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession and executing it. To obtain an order for possession, a landlord normally has to serve a notice pursuant to Section 83 of the 1985 Act and establish one or more of the grounds set out in Schedule 2 to the Act. However, the Anti-social Behaviour, Crime and Policing Act 2014 introduced an alternative basis for recovering possession through the insertion of what is now Section 84A of the 1985 Act. Section 84A provides (to quote its heading) an “Absolute ground for possession for anti-social behaviour”. By Section 84A(1), the Court is required to make a possession order where it is satisfied that one of the conditions specified in subsections (3)-(7) is met.

The obligation to make a possession order imposed by Section 84A(1) of the 1985 Act is, however, subject to “any available defence based on the tenant’s Convention rights, within the meaning of the Human Rights Act 1998”, applies “only when the landlord has complied with any obligations it has under Section 85ZA (review of decision to seek possession)”. Section 85ZA allows a tenant to request a review of a landlord’s decision to seek an order for possession under Section 84A if the landlord is either a local housing authority or a housing action trust. Where such a request is duly made, the landlord must review its decision and notify the tenant in writing of its decision on the review.
A further restriction on proceedings for possession on the anti-social behaviour ground is to be found in Section 83ZA of the 1985 Act. By Section 83ZA(2), the Court is barred from entertaining proceedings for possession of a dwelling-house under Section 84A “unless the landlord has served on the tenant a notice under this section”. Such a notice must, among other things, state that the Court will be asked to make an order under Section 84A, set out the landlord’s reasons for deciding to apply for the order and inform the tenant of the right to request a review under Section 85ZA.
Section 233 of the 1972 Act requires a document to be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address. “Proper address” is defined. Provision is made for when the address cannot after reasonable enquiry be ascertained.

The Court of Appeal holds, at paras 18 and 42-45 inclusive, that Section 233 of the 1972 Act does apply, for the reasons given in paragraphs 20-25 inclusive, and did apply to the Notice in the case. The Court of Appeal goes on to hold that the requirement of Section 233 were met and that the Notice had been duly served.

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