According to Regulation 36(3) of the Gas Safety (Installation and Use) Regulations 1998, a landlord must inspect a gas appliance at least every 12 months. Regulation 36(6) states that a certificate of that check must be given to any existing tenant within 28 days of the check and a copy of the last check must be given to any new tenant before the new tenant occupies the premises. 

Section 21A Housing Act 1988 (as amended) states that a section 21 notice may not be given to end an assured shorthold tenancy at a time when the landlord is in breach of a prescribed requirement, which includes the majority of the requirements of Regulation 36(6) referred to above (28-day timescale doesn't apply).

A county court appeal, Byrne v Harwood-Delgado decided on 21 June 2022, has confirmed that if there is no valid gas safety certificate at the start of the tenancy (i.e. one done within the last 12 months), this cannot be remedied. As such, the landlord will never be able to serve a valid S.21 Notice to end the tenancy. They would have to wait for one of the Grounds in Schedule 2 of the Housing Act 1988 to be available to them to end the tenancy. 

This case was distinguished from others that came before it because it concerned not just a procedural defect, such as a gas certificate that existed but had not been provided to the tenant, but a substantive failure whereby a valid gas safety certificate had not even existed. 

As a critical reminder of why these requirements are in place, her Honour Judge Bloom said in her judgment, "... there is a prescribed requirement to provide the last record to the new tenant. It was intended to ensure that basic checks had been done before tenants took up occupation."

Being a county court decision, this is not binding on future cases, however, it is highly likely to be referred to by tenants opposing a possession claim based on an s.21 notice and will be persuasive. 

This case serves as a useful reminder of how important it is to ensure that all relevant regulatory requirements are complied with before a new assured shorthold tenancy is begun.