Birmingham City Council v Drew Bravington
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Arnold,Lord Justice Moylan |
| Judgment Date | 22 March 2023 |
| Neutral Citation | [2023] EWCA Civ 308 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000285 |
[2023] EWCA Civ 308
Lord Justice Moylan
Lord Justice Newey
and
Lord Justice Arnold
Case No: CA-2022-000285
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
His Honour Judge Boora
Case No G70BM273
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Manning (instructed by City Solicitor, Birmingham City Council) for the Appellant
Richard Drabble KC and Tom Royston (instructed by Community Law Partnership) for the Respondent
Hearing date: 1 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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 respondent, Mr Drew Bravington, has since 2018 had a secure tenancy of a flat at 9 Clunbury Road, Northfield owned by the appellant, Birmingham City Council (“the Council”). In 2019, however, Mr Bravington was convicted of offences of racially/religiously aggravated intentional causing of harassment/alarm/distress contrary to section 31(1)(b) of the Crime and Disorder Act 1998 and having an article with a blade or point in a public place contrary to section 139 of the Criminal Justice Act 1988. In the light of those convictions, the Council sought to serve on Mr Bravington a “notice of seeking possession” (“the Notice”) in which it was explained that the Council intended to apply for a possession order on the strength of section 84A of the 1985 Act. A certificate of service explains that service was effected at 9 Clunbury Road on 3 January 2020 by handing the letter containing the Notice to “Shazana Ellis (girlfriend of D. Bravington)”.
The present proceedings were issued on 20 May 2020. By them, the Council claims possession of 9 Clunbury Road on the footing that the offences of which Mr Bravington was convicted were “serious” and committed “in the locality of” the property for the purposes of section 84A of the 1985 Act. In his defence, however, Mr Bravington denies seeing the Notice before the claim was served on him.
Mr Bravington 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 the Council now challenges Judge Boora's decision in this Court.
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 condition relevant in the present case is “Condition 1”, which subsection (3) explains is that:
“(a) the tenant, or a person residing in or visiting the dwelling-house, has been convicted of a serious offence, and
(b) the serious offence—
(i) was committed (wholly or partly) in, or in the locality of, the dwelling-house,
(ii) was committed elsewhere against a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or
(iii) was committed elsewhere against the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord's housing management functions, and directly or indirectly related to or affected those functions.”
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” (see subsection (1)) and, more importantly in the context of the present case, applies “only where the landlord has complied with any obligations it has under section 85ZA (review of decision to seek possession)” (see subsection (2)). 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 (subsection (3)) and notify the tenant in writing of its decision on the review (subsection (4)).
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 83ZA(3). Where the landlord is proposing to rely on section 84A's “Condition 1”, section 83ZA(5) further requires that the notice:
“(a) must also state the conviction on which the landlord proposes to rely, and
(b) must be served on the tenant within—
(i) the period of 12 months beginning with the day of the conviction, or
(ii) if there is an appeal against the conviction, the period of 12 months beginning with the day on which the appeal is finally determined or abandoned.”
The Council attempted to satisfy the requirements of section 83ZA of the 1985 Act by serving the Notice on Mr Bravington. As I have said, however, Mr Bravington contends, and District Judge Phillips and Judge Boora accepted, that the Notice was not validly served.
Before District Judge Phillips and Judge Boora, the Council advanced a number of arguments in support of the contention that there had been effective service of the Notice. We, however, are concerned only with whether the Council can rely on section 233 of the 1972 Act to establish due service.
Section 233 of the 1972 Act: context and history
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.
…
(4) For the purposes of this section and of section 26 of the Interpretation Act 1889 (service of documents by post) in its application to this section, the proper address of any person to or on whom a document is to be given or served shall be his last known address, except that—
(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;
(b) in the case of a partnership or a person having the control or management of the partnership business, it shall be that of the principal office of the partnership;
and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
…
(7) If the name or address of any owner, lessee or occupier of land to or on whom any document mentioned in subsection (1) above is to be given or served cannot after reasonable inquiry be ascertained, the document may be given or served either by leaving it in the hands of a person who is or appears to be resident or employed on the land or by leaving it conspicuously affixed to some building or object on the land.
…
(9) The foregoing provisions of this section do not apply to a document which is to be given or served in any proceedings in court.
(10) Except as aforesaid and subject to any provision of any enactment or instrument excluding the foregoing provisions of this section, the methods of giving or serving documents which are available under those provisions are in addition to the methods which are available under any other enactment or any instrument made under any enactment ….”
While section 233 of the 1972 Act addresses service by local authorities, section 231 deals with service on local authorities. It states:
“(1) Subject to subsection (3) below, any notice, order or other document required or authorised by any enactment or any instrument made under an enactment to be given to or served on a local authority or the chairman or an officer of a local authority shall be given or served by addressing it to the local authority and leaving it at, or sending it by post to, the principal office of the authority or any...
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