Gas safety and section 21 notices - where are we now?


Last week the Court Of Appeal handed down an important judgment on how the prohibition on serving s.21 notices operates when a landlord hasn’t provided a gas safety certificate.

Gas flame illustration

The judgment in Trecarrell House v Rouncefield [2020] EWCA Civ 760 has been long awaited.

It's taken me a while to upload this post. It's fair to say that my immediate reaction upon reading the transcript was a confused "Eh?". It's not the easiest judgment to read. I therefore wanted to see what housing lawyers are making of it.

Although the case clarifies certain issues, questions unfortunately remain as to whether s.21 notices will be valid in some situations.


Most readers will know that, where there are gas appliances or pipework in a residential property:

  • A landlord is obliged to carry out an annual inspection (under reg. 36.3 of the Gas Safety Regulations 1998) for the purpose of ensuring installations are safe, and
  • The landlord must provide the tenant with a copy of the gas safety record ("GSR"):
    • Before they take up occupation (reg.36(6)(b)), and
    • Within 28 days of an annual inspection (reg.36(6)(a)).

Further, a landlord is prevented from serving a s.21 notice on an assured shorthold tenant in England if the GSR has not been provided (under HA 1988, s.21A and reg.2 of the prescribed requirement regulations, SI 2015 No 1646).

The landlord may display the GSR in a prominent position in the property (together with a statement informing the tenant of their right to a copy) if there is no gas appliance in any room occupied by the tenant (reg.36(7)).

The 2015 regulations were poorly drafted. This led to disputes in the county court as to how they should be interpreted.

Rather than write a traditional case summary, in what follows I’ve attempted to summarise the key takeaway points using a question and answer format.

Bear in mind that, broadly speaking, there are two separate issues arising in relation to gas safety compliance. Firstly, whether a landlord has breached the gas safety regulations. Secondly, whether a breach prevents them being able to use the s.21 'no fault' possession procedure. A breach of the regulations may give rise to enforcement by the Health & Safety Executive (prosecution or fine), but depending on the type of breach, will not necessarily prevent a s.21 notice being given.

GSR exists but not given before tenant moves in

Qu: If the landlord carried out a safety check before the tenant took up occupation but failed to provide the GSR before the tenant moved in, can they serve a valid s.21 notice?

This question arose in the Trecarrell House case. The facts were:

  • January 2017 - a gas engineer inspected.
  • February 2017 - the tenant took up occupation.
  • November 2017 - the GSR (relating to the January check) was belatedly given to the tenant.

So, no GSR was given before the tenant took up occupation.

The Court of Appeal decided that the landlord's failure to give the GSR before the tenant moved in did not prevent them giving a s.21 notice, providing that the GSR was given before the s.21 notice.

The landlord's appeal was therefore successful on this point.

No pre-tenancy check

Qu: If no gas inspection was undertaken before the tenant took up occupation can the landlord give a s.21 notice?

In Trecarrell House the landlord had ensured the gas installations were safe before Ms Rouncefield moved in. They just hadn't given her the GSR before she moved in.

But what happens if a landlord can't give provide a pre-tenancy GSR because there was no inspection?

Unfortunately the judgment doesn't answer this question. We will have to wait for another case in the higher courts for a definitive answer. The other possibility is that the Government amend the regulations (which, frankly, is what they should have done years ago).

Many housing lawyers think that the absence of a pre-tenancy check scuppers the landlord. While the court held that a landlord's breach of the time limits (here, the tenant taking up occupation) does not affect their ability to give a notice, failing to check the installations (at all, prior to occupation) is arguably a different matter entirely.

If a landlord is simply unable to provide a pre-tenancy GSR, a tenant receiving a s.21 notice would be well advised to seek legal representation. It would appear there are grounds for defending a possession claim.

Clearly, there's also scope for statutory homelessness services to treat such s.21 notices as ineffective (notwithstanding that the county court will not yet have been asked to determine the validity of the notice). A housing applicant is not threatened with homelessness, at least under the s.175(5) 56-day deeming provision, if the s.21 is invalid.

Homelessness managers should provide staff with guidance, and review arrangements for helping housing applicants complete the reply form when a possession claim is issued.

Landlord does annual inspection but delays providing GSR

Qu: What's the landlord's position if they carry out the annual safety check but do not give the GSR within 28 days of the inspection?

We already knew from the wording of the 2015 regulations that this is not a problem for landlords.

Reg. 2(2) states that the 28-day period for compliance does not apply, for the purpose of s.21 validity.

So, the fact that the GSR is provided more than 28 days after the inspection is not grounds for asserting that a subsequent s.21 notice is ineffective.

Landlord misses annual deadline

Qu: Can a landlord who misses the 12-month deadline for undertaking an inspection during the tenancy serve a valid s.21 notice?

This issue arose in Trecarrell House.

The landlord's contractors inspected the gas installations in January 2017. This should have meant that another inspection was carried out by January 2018. However, the next check did not happen until February 2018 (on the landlord's version of events).

The section 21 notice was given in May 2018.

The Court of Appeal confirmed that a breach of the annual rule - in this case, the February 2018 check being late - did not prevent the landlord subsequently serving a s.21 notice.

In short, the landlord may arrange a (late) inspection, give the GSR, and then give notice.

No check

Qu: Can a valid s.21 notice be served if no gas safety check has been undertaken within the 12 months preceding the s.21 notice?

Clearly, once 12 months have passed since the last check the landlord is obliged to arrange another inspection (to comply with the regulations).

If there's been no inspection there will be no up-to-date certificate that can be given to the tenant.

But does this necessarily prevent a s.21 notice being given?

The judgment doesn't answer this question directly.

It would certainly be surprising if a landlord could avoid the s.21 sanction by unlawfully failing to carry out an annual inspection.

However, Patten LJ's reasoning might be interpreted as supporting a landlord here. The court recognises that the duty to undertake an annual inspection (reg.36(3)(a)) is not a prescribed requirement for the purposes of s.21A (see paragraphs 6 and 35 of the judgment).

Personally, I'd be referring such cases to the best local housing solicitor, so that any possession claim can be defended.

I suspect that most landlords in this position would not issue a possession claim if they're informed of this error, at least until they've inspected, given a current GSR, and served a fresh s.21 notice.

Wrong date

Qu: What if the date of inspection, as stated on the GSR, is inaccurate?

In Trecarrell House the landlord stated that a check was undertaken in February 2018, but that the corresponding GSR was not given until April 2018.

The certificate was dated 3rd April 2018 rather than 2nd February 2018. This is a relatively easy mistake to make. For example if, as happened in the present case, the software producing the GSR defaults the date for inspection to the date on which the record is produced.

The Court approached this problem in the following way.

The prescribed requirements for the purposes of s.21 validity are those contained in reg.36(6) or (7).

Reg.36(6) requires the landlord to ensure a copy of the GSR is given to the tenant.

The record which must be given is pursuant to the requirements of reg.36(3)(c).

Reg.36(3)(c) requires the record to include, among other information, "the date on which the appliance or flue was checked".

Patten LJ stated:

The April 2018 GSR was not such a document because it did not give the correct date of the safety check. It cannot therefore be relied upon by the claimant as evidence of compliance with paragraph (6)(a) as a prescribed requirement.
Para 36.

This suggests that housing advisors should examine the certificate and check whether it contains the information mandated by reg.36(3)(c).

Fraudulent certificates

Some disreputable landlords give fraudulent GSRs. GSRs should therefore be carefully examined to ensure it's a legitimate document.

It's also worth checking whether the engineer was permitted to undertake the check by checking the Gas Safe register.


All of the above assumes that the landlord hasn't fallen foul of any of the other regulatory requirements affecting their ability to give a s.21 notice, e.g. not protecting a deposit, not giving the correct version of the 'How to Rent' guide, charging an unlawful fee etc. The s.8 route for possession, which requires one of the statutory grounds set out in Schedule 2 to the 1988 Act to be proved, is unaffected.

Trecarrell House certainly constitutes a significant victory for landlords. The case will prevent landlords being penalised for failure to comply with the ‘before occupation’ and annual time limits. These will often have been missed due to an administrative oversight. The case also provides reassurance if an inspection has been delayed because of Covid-19.

However, it will be appreciated from the above that there remains considerable uncertainty on several issues.

Assured shorthold tenants will continue to need specialist help so they know whether their landlord is entitled to possession.

It’s worth noting that the tenant's solicitors have indicated they’ll be applying to the Supreme Court for permission to appeal. It’s therefore possible that the issues could be revisited.

I’m tempted to ask whether it’s beyond the wit of Government to draft legislation that’s clear in its effect, or amend regulations when they're not having the intended effect. But I fear we already know the answer to that question.


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