Court of Appeal allows appeal by council over whether notice seeking possession was 'duly served'

The Court of Appeal has declared that a city council’s notice of seeking possession was ‘duly served’ on a tenant who denied seeing it, and has dismissed the man’s application for summary judgment.

In Birmingham City Council v Bravington [2023] EWCA Civ 308, the claimant local authority was seeking possession of a council-owned flat on the footing that offences committed by the respondent tenant were "serious" and committed "in the locality of" the property.

The respondent has had a secure tenancy of the flat since 2018. In 2019, he was convicted of offences of “racially / religiously aggravated intentional causing of harassment / alarm / distress” and having an “article with a blade or point in a public place”, Lord Justice Newey said.

In light of the convictions, Birmingham sought to serve on the tenant a "notice of seeking possession" ("the Notice") in which it was explained that it intended to apply for a possession order.

The Court of Appeal judge said that the respondent “denies seeing the Notice before the claim was served on him”. He applied for summary judgment in his favour on the basis that the council had “no real prospect of proving that the Notice had been duly served on him”.

On 8 July 2021, District Judge Chloë Phillips, sitting in the County Court at Birmingham, acceded to the application and dismissed the claim.

On 4 February 2022, His Honour Judge Boora dismissed an appeal by the council, but Birmingham challenged his decision in the Court of Appeal.

The Court of Appeal heard that a certificate of service explained that service was effected at the flat on 3 January 2020 by handing the letter containing the Notice to the girlfriend of the tenant.

Lord Justice Newey said: “This appeal 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 the present case and the consequences of that.”

The Court of Appeal judge said section 233 of the 1972 Act “provides so far as relevant”:

"(1) Subject to subsection (8) below, subsections (2) to (5) below shall have effect in relation to any notice, order or other document required or authorised by or under any enactment to be given to or served on any person by or on behalf of a local authority or by an officer of a local authority.

(2) Any such document may 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."

Outlining the submissions by the parties, Lord Justice Newey said that Mr Jonathan Manning, who appeared for the council, submitted that the language of section 233 of the 1972 Act is “clear and wide”.

Lord Justice Newey said: “A notice under section 83ZA of the 1985 Act, Mr Manning argued, fits that description and so section 233 is applicable.”

Richard Drabble KC, who appeared with Mr Tom Royston for the respondent, contended that section 233 of the 1972 Act is in point only where a local authority is acting "qua local authority" or, expressing matters slightly differently, exercising a public law function.

In his assessment, Lord Justice Newey said that section 233 of the 1972 Act does apply in relation to the service by a local authority of a notice under section 83ZA of the 1985 Act. He said: “Section 233 does not on its face limit its application to circumstances in which a local authority might be said to be acting "qua local authority" or exercising a public law function.”

Looking at whether the requirements of the Act were met, the Court of Appeal judge said: “So far as relevant, section 233(2) of the 1972 Act states that a notice "may be … served on the person in question … by leaving it at his proper address". By virtue of section 233(4), "the proper address of any person … on whom a document is to be … served shall be his last known address".

He added: “The question which arises is whether giving the Notice to [the girlfriend] satisfied the requirements of section 233 of the 1972 Act.”

The judge said there was no doubt that the flat was the respondent’s "proper address" for the purposes of section 233. Did, though, giving his partner the Notice in the way described amount to "leaving" it at the flat?

After considering relevant case law, Lord Justice Newey suggested that in the present case, it was “quite impossible to say that the action of the landlord in putting the notice under the door was other than leaving it at the proper address in a manner which a reasonable person, minded to bring the document to the attention of the tenant, would adopt”.

He concluded that the Notice was handed to a person within the property who identified herself as the partner of the tenant and accepted the letter. “That, I think, was conduct which a reasonable person minded to bring the Notice to [the respondent’s] attention would have adopted.”

The Court of Appeal judge went on to consider whether the tenant could dispute service on the basis that the document “did not in fact reach him”, even if the requirements in section 233 of the 1972 Act were met. He questioned: “does it necessarily follow that the Notice was duly served?”

Mr Drabble, on behalf of the respondent, argued that "[a]t common law service requires receipt of the document" (see Knight v Goulandris [2018] EWCA Civ 237, [2018] 1 WLR 3345, at paragraph 19, per Patten LJ) and that, “while section 233 of the 1972 Act prescribes certain mechanisms of service, it does not detract from the common law rule”.

Mr Manning, on the other hand, “contended that proof that a document was ‘left’ at the ‘proper address’ in accordance with section 233 is conclusive and that it does not matter whether it actually came to the addressee's attention”.

The Court of Appeal judge said: “Mr Manning took us to Rushmoor Borough Council v Reynolds (1991) 23 HLR 495 ("Reynolds"). In that case, a notice addressed to the respondent had been pushed through the letter box at the house at which he lived. The property was, however, in multiple occupation, and the respondent did not receive it. The Divisional Court nevertheless held that service had been duly effected in accordance with section 233 of the 1972 Act.”

Concluding on the present case, Lord Justice Newey said: “In all the circumstances, I agree with Mr Manning that it is irrelevant when [the respondent] became aware of the Notice. Like section 23 of the 1927 Act [the Landlord & Tenant Act 1927], section 233 of the 1972 Act is, in my view, designed to allocate the risks of a failure of communication and "to avoid disputes on issues of fact … where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain". To adapt Slade LJ's words, section 233 offers a local authority "choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive [the notice]".

Finally, he said: “It follows that, the Notice having been ‘left’ at the flat in such a way as to comply with section 233, it was duly served.”

Lord Justice Newey allowed the council’s appeal and dismissed the respondent’s application for summary judgment.

Lord Justice Arnold and Lord Justice Moylan agreed.

Lottie Winson

See also: Service of notices seeking possession - The Court of Appeal has held that local authorities can rely on s.233, Local Government Act 1972 when serving a notice seeking possession under s.83ZA, Housing Act 1985. Service in accordance with the provisions of that section will be deemed valid service even if the tenant does not receive it, writes Jonathan Manning.