Housing Barrister Summary of Birmingham City Council v Bravington [2023]

The facts

Mr Bravington held a secure tenancy of a flat owned by Birmingham City Council (“the Council”). In 2019, Mr Bravington was convicted of criminal offences of racially/ religiously aggravated intentional causing of harassment/alarm/distress and having an article with a blade or point in a public place. In light of those convictions, the Council served a “notice of seeking possession” (“the Notice”). A certificate of service outlined that service was effected at his flat in January 2020 by handing the letter containing the Notice to Mr Bavington’s girlfriend who answered the door to his flat.

The Council issued proceedings in May 2020 pursuant to s.84A of the 1985 Act under the absolute ground of possession for anti-social behaviour as inserted by the Anti-social Behaviour, Crime and Policing Act 2014. In his defence, Mr Bravington denied seeing the Notice before the claim was served on him. By section 83ZA(2) of the 1985 Act, the court is barred from entertaining such proceedings under section 84A “unless the landlord has served on the tenant a notice under this section”.

Mr Bravington’s application for summary judgment on the basis that the Council lacked prospects in proving that the Notice had been served was successful. The Council’s appeal of that decision was unsuccessful.

The decision of the Court of Appeal

The key consideration in the Court of Appeal was whether the Council could place reliance on s.233 of the 1972 Act to establish effective service. In particular, s.233(2) of the 1972 Act provides that a notice “may be…served on the person in question…by leaving it at his proper address”. Pursuant to section 233(4), “the proper address of any person…on whom a document is to be…served shall be his last known address”.

The Court of Appeal agreed that s.233 of the 1972 Act applied to service by a local authority of a notice under s.83ZA of the 1985 Act. Newey LJ in the leading judgment did not consider that the application of s.233 of the 1972 Act depended on the capacity in which the local authority acted. Accordingly, the application of s.233 of the 1972 Act was not confined to situations only where notices or documents are served by a local authority when exercising a public law function [19-25].

On the issue of whether there was in fact good service under s.233 of the 1972 Act, Newey LJ considered that the correct test to be applied is that adopted in Lord Newborough v Jones [1975] 1 Ch 90, namely that a document will be “left” at an address under section 233 of the 1972 Act if it was left there “in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice was addressed, would adopt” [31]. On the facts of this case, handing the letter to a person who identified herself as Mr Bravington’s girlfriend, who was present at his property and who accepted the letter was held to meet that test [32].

The final consideration was whether actual receipt of the Notice by Mr Bravington was required under s.233 of the 1972 Act. Newey LJ held that it was irrelevant when Mr Bravington became aware of the Notice as s.233 provides for modes of service which will be deemed to be valid service, even if ultimately the intended recipient does not in fact receive the notice. Section 233 of the 1972 Act is designed to avoid disputes on issues of fact [41]. Accordingly, the Notice, having been “left” at Mr Bravington’s property in a way that complied with s.233 of the 1972 Act, was duly served.

The Council’s appeal was accordingly allowed and a declaration was given that the Notice was duly served on Mr Bravington.