Housing Barrister Summary of Mooney v Whiteland [2023]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Mooney v Whiteland [2023] EWCA Civ 67.

This appeal concerned the validity of a s.13 Housing Act 1988 notice sent to increase the rent payable under a periodic tenancy. The issue fell for consideration within possession proceedings which included grounds based on alleged rent arrears. This particular issue was set for a preliminary trial as depending on the decision, the Defendant either fell to be in rent arrears or she was not.

The facts

The Defendant held a weekly periodic tenancy with the Claimant at a rent of £25 each week. The tenancy commenced on Monday 20^th May 1991. The rent fell due to be paid each Monday although the Defendant’s usual practice was to pay her rent on the proceeding Friday of each week.

A relevant notice to increase the rent must by virtue of s.13(2) propose “a new rent to take effect at the beginning of a new period of the tenancy specified in the notice“. In October 2018, the Claimant sent a s.13 notice to the Defendant which stated that the new rent of £100 each week would apply from Friday 7^th December 2018 (not from Monday 10^th December 2018, which was the beginning of a new rental period under the tenancy).

At first instance in the County Court, the Claimant was successful in arguing for the validity of the notice. The Deputy District Judge held that the notice was effective when seen in the context of the Defendant’s practice of paying rent on a Friday. On appeal, the Circuit Judge held that the notice was invalid as there were three possible interpretations of the notice, accordingly it was not obvious to the reasonable recipient that the new rent was to take effect from Monday 10^th December 2018 [35].

The Claimant appealed that decision, and the three grounds of appeal were in short:

(1) Although the original start date of the tenancy, 20^th May 1991, was a Monday, the tenancy had been varied at some point in the intervening years and it was not now possible to identify when the weekly periods began.

(2) The judge failed properly to apply the decision in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19.

(3) The judge was wrong to conclude that the rent assessment committee did not have jurisdiction to determine the validity of the notice.

The decision

When setting out the relevant legislation, Males LJ notes two important functions that the relevant date for the purposes s.13(2) HA 1988 provides: (i) first of all, to enable the tenant to understand whether the statutory requirements have been complied with and, if so, to be conclusive as to the date from which the new rent is payable, and (ii) secondly, to specify the deadline for the tenant to challenge the proposed new rent by a referral to the rent assessment committee [19].

As to grounds of appeal, the Claimant’s own pleaded case was that the tenancy began on a Monday and such was common ground before the Deputy District Judge; accordingly the first ground of appeal was unsuccessful as the Claimant was not permitted to depart from its own pleading [38].

The second ground of appeal was also unsuccessful. The Court of Appeal concurred with the Circuit Judge that the Claimant’s notice was invalid. Applying the principles of Mannai, whilst one reading was that the notice should be interpreted as if the Claimant had inserted Monday 10^th December 2018 as the start date, it was at least as likely that the Claimant intended the new rent to take effect from Friday 7^th December 2018. With reference to Pease v Carter [2020] EWCA Civ 175, for the Mannai principle to be invoked there must be no reasonable doubt as to what the notice was intended to say – the Court of Appeal did not consider this was such a case [40].

Males LJ also outlined with reference to the guidance notes on the reverse of form 4D, that the starting point is that a reasonable tenant reading the notes would be entitled to conclude that if the date inserted for the purposes s.13(2) is not the beginning of a period of the tenancy, then the landlord has failed to comply with the requirements of section 13 and the notice is invalid. However, in cases of an obvious mistake (e.g. typographical error as to the year), there is still scope for such to be interpreted in accordance with the Mannai principle, although this was not held to be such a case [42].

As to the last ground of appeal, the Court of Appeal concurred with the circuit judge that the rent assessment committee does not have jurisdiction to determine the validity of a s.13 notice. A decision as to the validity or otherwise of a s.13 notice is a matter for the court [46]. In this case, since the Defendant did not refer the notice to the local rent assessment committee, she took the risk that the notice might be held to be valid by a court, in which case the new rent of £100 per week would have taken effect pursuant to section 13(4). However, her failure to refer the notice to the committee did not deprive the Court of jurisdiction to thereafter determine the validity of the notice [48].

The Claimant’s appeal was accordingly dismissed.