The Court of Appeal recently held that there is no requirement to serve a tenant with either an Energy Performance Certificate (EPC) where the assured shorthold tenancy (AST) pre-dated 1 October 2015 and the landlord seeks possession under s21 Housing Act 1988 (as amended).

In the case of Minister v Hathaway & Hathaway [2021] EWCA Civ 936, the unanimous decision of the Court was that where the AST commenced prior to 1 October 2015, and had become periodic prior to 1 October 2015, the prescribed information requirements were not applicable.

The tenancy in this case had begun on 19 March 2008 with a fixed term of one year. From 19 March 2009, it was a statutory periodic tenancy pursuant to s5(2) Housing Act 1988. Having not previously served an EPC, the landlord served a s21 notice on the tenant on 6 December 2018. The claim for possession was initially dismissed; that decision had been overturned on appeal to a Circuit Judge. The tenant appealed that latter decision.

Arnold LJ delivered the judgment of the Court. He traced the legislative history behind the Deregulation Act 2015, which inserted ss21(8)-(9) and 21A and 21B into the Act. For ASTs which commenced on or after 1 October 2015, landlords have been obliged to comply with the prescribed information requirements imposed by ss33-40 of the Deregulation Act 2015.

Section 41 provides limits on the ASTs to which those requirements apply. Further, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (‘the 2015 Regulations’) provided that the requirements were imposed upon any ASTs which were in existence on 1 October 2018. The tenant argued that pursuant to s41(3) of the Deregulation Act 2015, this tenancy was an AST which was ‘in existence’ on 1 October 2018 and therefore there needed to be compliance with the prescribed requirements.

Arnold LJ disagreed with that argument, agreeing instead with the landlord’s submission (and the Circuit Judge HHJ Simpkiss below), that this was not an AST granted on or after 1 October 2015. Therefore no EPC needed to have been served. The Judge also rejected the tenant’s contention that Regulation 1(3) of the 2015 Regulations was ultra vires. Whilst that Regulation restricted the application of regulation 2, it was within the power conferred upon the Secretary of State by s21A(S0 of the Housing Act 1988. Further, nothing in the Deregulation Act 2015 obliged the exercise of those powers to the fullest extent permitted by the statutes, in any event.

The same reasoning is applicable to the provision of a Gas Safety Certificate (GSC); this is not required for ASTs granted before October 2015.

The authority is relevant to ASTs granted before 1 October 2015. No EPC needs to be served on the tenant before a section 21 notice is served. Further, no EPC is required before serving a section 21 notice for a periodic tenancy that came into being on or after 1 October 2015, following the end of an AST granted before 1 October 2015.