In the County Court appeal in Cassell v Sidhu [2025], HHJ Clarke concluded that a landlord that had given a prospective new tenant a copy of a gas safety record that did not contain all of the statutorily required information, was no longer precluded from serving a valid section 21 notice once they had provided compliant records for two subsequent annual gas safety inspections.
The decision is not binding, but it may be seized on by landlords seeking to serve section 21 notices before the “no-fault” procedure is abolished by the Renters’ Rights Act which has now been passed into law.
The key takeaways
• Landlords are prevented from serving “no fault” section 21 eviction notices where they have failed to provide new and existing tenants with records of gas safety checks.
• The legislation governing the restrictions on serving section 21 notices is generally considered to be poorly drafted, with different County Court judges having interpreted it in different ways.
• In the County Court appeal in Cassell v Sidhu, HHJ Clarke interpreted the legislation to mean that providing a tenant with the record of two subsequent gas safety checks effectively cured an earlier breach, lifting the bar on serving a valid section 21 notice.
• This is not an interpretation that many had previously put forward, but the decision will not be subject to an appeal.
• Although the Renters’ Rights Act, which has just been passed into law, will eventually abolish the “no fault” eviction process altogether, landlords will still be able to serve section 21 notices before the new tenancy regime is brought fully into force.
• It is expected that many landlords will serve section 21 notices before the Renters’ Rights Act formally commences.
• Gas safety-related arguments are therefore likely to continue to be relevant for some time to come, and the decision in Cassell v Sidhu may well be relied on by landlords where tenants challenge the validity of section 21 notices.
Relevant legislation
Under the current law, a landlord of premises in England let under an assured shorthold tenancy can seek to recover possession by serving a so-called “no-fault” eviction notice under section 21 of the Housing Act 1988 (HA 1988).
Over time, however, restrictions have been introduced that prevent landlords from serving such notices in certain circumstances.
Some of those restrictions are contained in section 21A of the HA 1988, which provides that a section 21 notice may not be served at a time when a landlord is in breach of a “prescribed requirement”.
To find out what the “prescribed requirements” are, one has to look at the snappily titled Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (2015 Regulations).
One of the “prescribed requirements” relates to the provision of energy performance certificates.
The other relates to the provision of gas safety certificates under the Gas Safety (Installation and Use) Regulations 1998 (Gas Safety Regulations).
The Gas Safety Regulations impose various obligations on residential landlords. Many of these are set out in regulation 36, including obligations to:
• Carry out an annual gas safety inspection (regulation 36(3)(a)).
• Ensure that a record of an annual gas safety inspection is made and retained until there have been two further checks (or for two years where an appliance or flue has been removed). The record must contain specific information, including the landlord’s name and address (regulation 36(3)(c)).
• Give an existing tenant a copy of a gas safety record within 28 days of any such inspection (we will refer to this as the “Existing Tenant Requirement”) (regulation 36(6)(a)).
• Give a copy of the last gas safety record to any new prospective tenant before they take up occupation (the “New Tenant Requirement”) (regulation 36(6)(b)).
For the purposes of the restrictions on serving section 21 notices, the 2015 Regulations say that, of the obligations set out above, only the Existing Tenant Requirement and the New Tenant Requirement in regulation 36(6) are “prescribed requirements”. They also disapply the requirement to provide the tenant with a copy of the gas safety record to the tenant within 28 days.
Relevant caselaw
One might have thought that the circumstances in which a landlord can or cannot serve a section 21 notice would be clear.Regrettably, that is not the case.
The question of how the HA 1988, the 2015 Regulations and the Gas Safety Regulations fit together has taken up a significant amount of court time.
There is currently only one binding Court of Appeal decision that has looked at this, and even this left several key questions up in the air.
That case was called Trecarrell House Ltd v Rouncefield [2020]. In this case, the landlord had obtained a gas safety record but had failed to provide it to the prospective new tenant before they moved in. The Court of Appeal found that the disapplication of the 28-day period applied to both the New Tenant Requirement and the Existing Tenant Requirement, which meant that, so long as the landlord had given the tenant a copy of the gas safety record that was in force before the tenant went in to occupation, and a copy of any further certificate that related to a subsequent inspection, the landlord could give a valid section 21 notice. In short, a landlord could remedy the original failure to comply with the New Tenancy Requirement by giving the tenant a copy of the pre-tenancy gas safety record at a later date.
However, Trecarrell involved a situation in which the landlord had obtained and retained a copy of the pre-tenancy gas safety record. It could therefore still give that record to the tenant later on.
But what if the landlord had lost the original record so that it could not provide the tenant with a copy at a later date?
What if the landlord had not obtained a pre-tenancy gas safety record at all?
What if the gas safety record that is given to the tenant does not contain all of the information that regulation 36(3) requires?
These are just some of the questions Trecarrell left open.
We do not have any binding decisions on these points, but what we do have are several conflicting County Court decisions which touch on some of them.
In Byrne v Harwood-Delgado [2022], the Court held that, if no pre-tenancy gas inspection had been carried out at all, and there was accordingly no pre-occupation gas safety record, the landlord was in breach of the New Tenant Requirement and could never serve a section 21 notice.
In Blagg v Gharbi [2023], the landlord had provided the tenant with a copy of the most recent gas safety record before serving a section 21 notice, but the record did not include the landlord’s name and address. The Court decided that the section 21 notice had been served at a time when the landlord was in breach of the Existing Tenant Requirement, because the gas safety record did not contain the landlord’s name and address.
Cassell v Sidhu
And so we get to Cassell v Sidhu [2025].
In this case, the landlord had given the prospective new tenant a copy of the latest gas safety record before they went into occupation, but the space for the landlord’s name and address had been left blank. Copies of two subsequent gas safety records had, however, been given to the tenant and it was agreed that there was no problem with either of those records.
HHJ Clarke held that the “record” referred to in the provision concerning the New Tenant Requirement was the same “record” as described in the Existing Tenant Requirement, namely the record required by regulation 36(3)(c) of the Gas Safety Regulations.
As such, the landlord was found to be in breach of the New Tenant Requirement because the first gas safety record in this case did not contain all of the information specified in regulation 36(3)(c) – it had mistakenly omitted the landlord’s name and address. The landlord had therefore been in breach of a prescribed requirement.
The judge considered that, following Trecarrell, it was in theory possible to remedy this breach by rectifying an issue with the first gas safety record and providing a copy to the tenant. This had not happened in this case though.
The question, therefore, was whether the breach in relation to the New Tenant Requirement was fatal and forever prevented a landlord from serving a section 21 notice, or whether subsequent compliance with the Existing Tenant Requirement could end the breach and lift the bar on service of a section 21 notice?
The judge considered that, on the proper interpretation of the statutory scheme, evidencing compliance with the Existing Tenant Requirement could be sufficient to show that the landlord was no longer in breach of a prescribed requirement and, consequently, that it was no longer prevented from serving a section 21 notice.
The judge believed that this was supported by the fact that the Gas Safety Regulations only oblige landlords to retain a gas safety record until there have been two further checks.
In addition, the Court of Appeal in Trecarrell had made clear that the primary sanction for non-compliance with the Gas Safety Regulations was that a breach attracts criminal sanctions under health and safety at work legislation. The prohibition on service of section 21 notices “at a time” when a landlord is in breach is therefore only a secondary lever to spur landlords into compliance. Read in that context, the judge thought that there was little point in spurring landlords retrospectively to comply with the New Tenant Requirement once two later gas safety checks had been carried out.
The judge (disagreeing with the judge in Byrne) did not think it made any obvious sense for the legislation to be read as forever preventing a landlord that had not complied with the New Tenancy Requirement from serving a section 21 notice even after two, five or ten later annual gas safety checks had been carried out.
Indeed, HHJ Clarke thought that such an interpretation was unworkable given the express requirement to only retain the records until two further annual checks had been carried out. It could also lead to absurd results, such as where a landlord might have complied with the New Tenant Requirement and Existing Tenant Requirement over a long period of time, but could be precluded from recovering possession if it had only kept copies of the last two records (which was all it was required to do) so that it could not provide the court with evidence of earlier compliance.
HHJ Clarke concluded that Parliament intended that compliance with the prescribed requirements for the purposes of allowing a section 21 notice to be served, meant compliance with the prescribed requirements in relation to, at most, the two most recent gas safety checks, as those were the only gas safety records the landlord was required to retain and make available for inspection. Whether that involved compliance with the New Tenant Requirement and/or the Existing Tenant Requirement would depend on the facts.
For example, to be able to serve a section 21 notice in the first year of a new tenancy the landlord would only need to prove that it had complied with the New Tenant Requirement.
If the pre-occupation gas safety record had been carried out more than twelve months ago, however, the landlord might also need to prove that it had provided the tenant with a copy of the record of the next annual gas safety check to prove compliance with the Existing Tenant Requirement.
If, however, the tenancy had continued for several years, then the landlord would only need to prove that it had given the tenant copies of the gas safety records for the last two annual safety checks, rendering irrelevant any historic failure to comply with the New Tenant Requirement.
The judge rejected the argument that all that was required was the last gas safety record to have been provided. It would not, in their view, be sufficient for a rogue landlord, who might never have previously provided the tenant with any gas safety records, to quickly carry out an inspection and give the tenant a record of the same right at the last minute purely to enable them to serve a section 21 notice. Rather, it was more consistent with Parliament’s intention to “spur compliance” to require records for the two most recent gas safety checks to be provided.
Comment
The court’s interpretation in Cassell v Sidhu is not one that we think many lawyers or commentators expected.
There was a fairly widely held view that if a landlord was not in a position to provide the tenant with copies of a pre-occupation gas safety record and all annual records thereafter, they would still hopefully be able to persuade the court that their section 21 notice was valid so long as they could provide records for the first and last check.
The finding - that what is required is only the last two gas safety records (or just the first if the section 21 notice is served very early in the tenancy) - is somewhat surprising.
It would have been interesting to see what a higher court might have made of this decision, but there is no prospect of an appeal because the tenants had already moved out and handed back possession by the time judgment was given. We wonder, for example, whether a point might have been taken that the wording “until there have been two further checks”, on which the judge placed considerable weight, were only inserted after the 2015 Regulations introduced the “prescribed requirements”, such that it is difficult to see that Parliament could have had those particular words in mind when it introduced the restriction on serving section 21 notices.
The judge’s interpretation has an air of ‘square pegs and round holes’ about it, but we certainly intend no criticism. The problem in trying to discern Parliament’s intention stems from the poor way that the 2015 Regulations were drafted.
The Renters’ Rights Act, that will do away with section 21 notices altogether, has just been passed into law but will not come fully into force until a date that is still to be confirmed. We anticipate a deluge of section 21 notices being served before the new tenancy regime commences, and it is inevitable that gas safety-related challenges will continue to be raised.
Indeed, disputes about the validity of section 21 notices over the next few months may be fiercer than ever because, if landlords cannot recover possession under the no-fault procedure whilst it still exists, they will only be able to recover possession under the new system if they can satisfy one of the statutory grounds for possession. If they cannot do that, they will not be able to get their properties back.
The issue may not be purely historic either.
The Renters' Rights Act does not currently say that a landlord will be precluded from serving a section 8 notice, or that the courts will be unable to make a possession order, if gas safety records have not been provided. However, such provisions could potentially still be introduced through secondary legislation. The Act already provides that the court will not be able to make possession orders while the landlord is in breach of a new obligation to register and maintain active entries on a mandatory private rented sector database. Earlier draft explanatory notes published by the government suggested that regulations could be introduced specifying that an entry in the database would be rendered inactive if a landlord fails to upload a new gas safety record. If such secondary legislation is to be written, let us hope that the drafters have learned from past mistakes.
If you are a landlord looking to recover possession of your premises before the new tenancy regime formally commences, or a tenant who has received a section 21 notice, get in touch with our Residential Property Litigation Team.
