Maksim Muca v Rachida Rechia El Amrani; Helen Harker & Ors v Hugues Hubert & Anor

The Gas Safety Regulations, made under the Health and Safety at Work etc. Act 1974, regulate the installation, maintenance and use of gas fittings and appliances. Regulation 36 imposes duties on landlords.

Regulation 36(1) defines various terms. So far as relevant, it reads as follows:

Regulation 36 then provides so far as material as follows:

Until amended in 2018, regulation 36(3)(c) simply provided for a certificate to be retained “for a period of 2 years from the date of that check” rather than (as now) “until there have been two further checks of the appliance or flue under this paragraph or, in respect of an appliance or flue that is removed from the premises, for a period of 2 years from the date of the last check of that appliance or flue”.

By section 33 of the Health and Safety at Work etc. Act 1974, it is an offence for a person “to contravene any health and safety regulations or any requirement or prohibition imposed under any such regulations”. The Gas Safety Regulations are “health and safety regulations” within the meaning of this provision.

Part 1 of the 1988 Act introduced a new species of residential tenancy, the “assured tenancy”, with a sub-species, the “assured shorthold tenancy”. By virtue of section 1(1) of the 1988 Act, a tenancy under which a dwelling-house is let as a separate dwelling to one or more individuals at least one of whom occupies it as their only or principal home is, in general, an “assured tenancy”. A tenancy granted following the passing of the Housing Act 1996 is automatically an “assured shorthold tenancy” unless a specified exception applies (see section 19A of the 1988 Act). “Assured shorthold tenancies” are the subject of chapter 2 of part 1 of the 1988 Act, comprising sections 19A to 23.

For the most part, an assured tenancy cannot be brought to an end by a landlord except by obtaining and executing an order for possession under section 7 or section 21 of the 1988 Act. Section 7 provides for an order for possession to be made on one or more of the grounds set out in schedule 2 to the Act. Some of those grounds are mandatory and others discretionary. In general, the Court is bound to make a possession order if satisfied that any of the grounds in part I of schedule 2 (viz. grounds 1-8) is established, while the Court “may make an order for possession if it considers it reasonable to do so” if any of the grounds in part II of schedule 2 (viz. grounds 9-17) is established.

The grounds specified in part I of schedule 2 relate to, among other things, situations where a landlord formerly occupied the premises as his only or principal home, where a landlord wishes to occupy the premises as his only or principal home, where the premises were previously used for holiday letting, where the landlord intends to carry out major works at the premises, where a tenant has died, and where sizable amounts of rent are unpaid. The discretionary grounds in part II of schedule 2 concern, among others, cases where some rent has been outstanding, where the tenant has persistently delayed paying rent, where the tenant has breached another obligation of the tenancy, and where the condition of the premises or furniture has deteriorated owing to ill-treatment.

In the case of an assured shorthold tenancy, a landlord has also been able to recover possession pursuant to section 21 of the 1988 Act. Section 21(1) provides:

Lord Neuberger and Baroness Hale summarised the upshot in these terms in McDonald v McDonald [2016] UKSC 28, [2017] AC 273, at paragraph 26:

The circumstances in which landlords are entitled to serve section 21 notices are, however, limited by section 21A of the 1988 Act. So far as material, that is in these terms:

Section 21A was inserted into the 1988 Act by section 38 of the Deregulation Act 2015 (“the 2015 Act”). Section 41 of the 2015 Act, headed “Application of sections 33 to 40”, provides:

For relevant purposes, sections 38 and 41 of the 2015 Act both came into force on 1 October 2015.

The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the 2015 Regulations”), made under the 1988 Act, also came into force on 1 October 2015. Regulation 1 states the following as regards their application:

Regulation 2, which is central to these appeals, is in these terms:

There was also reference in submissions to regulation 5. That states:

The explanatory note in respect of the 2015 Regulations include this:

Section 2 of the Renters’ Rights Act 2025 provides for the omission from the 1988 Act of the whole of chapter 2 of part 1 and, hence, for the abolition of assured shorthold tenancies. With the coming into force of the 2025 Act, it will not be possible for any landlord to serve a section 21 notice.

Mr Rupert Cohen, who appeared for the Trustees, argued that Judge Hellman’s decision visits on the Trustees a penalty (viz. denial of the right to serve a section 21 notice) for an omission which happened eight years before that penalty was introduced (by the 2015 Regulations) and in circumstances where (a) the check required by regulation 36(3)(b) of the Gas Safety Regulations was carried out in advance of the grant of Mr Hubert’s and Ms Hamdaoui’s first assured shorthold tenancy, (b) while the failure to give Mr Hubert and Ms Hamdaoui the certificate in respect of that check would have been remediable if it had still been available, it has now been lost, (c) that is unsurprising when regulation 36(3)(c) required a landlord to retain a gas safety certificate for just two years and (d) the effect of the penalty is to alter radically the rights and obligations of the parties in relation to a contract (viz. the 2019 assured shorthold tenancy) entered into 12 years after the omission. Mr Cohen advanced three interpretations of the legislation which, he argued, would better reflect what Parliament will have intended and pay due regard to the presumptions against interference with property rights, doubtful penalisation and retrospectivity. These interpretations are as follows:

Mr Luke Decker, who appeared for Mr Muca, supported Mr Cohen’s submissions. Among other things, he stressed how other restrictions on the service of section 21 notices are remediable. The tenants’ construction of the legislation, Mr Decker said, would make the giving of a compliant pre-occupation gas safety certificate the only restriction on the use of section 21 of the 1988 Act which would be wholly irremediable.

I shall consider the interpretations of the legislation put forward by Mr Cohen in turn. Before doing so, however, it is convenient to refer to two decisions of the Court of Appeal in which the implications of the 2015 Act have been considered: Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760, [2020] 1 WLR 4712 (“Trecarrell”) and Hathaway v Minister [2021] EWCA Civ 936, [2021] 1 WLR 6005 (“Hathaway”); to address the applicability of section 21A of the 1988 Act in the circumstances of these cases; and to identify relevant principles of statutory interpretation.

In Trecarrell, a flat was let to Ms Rouncefield under an assured shorthold tenancy dated 20 February 2017 for a period of six months. Ms Rouncefield was not given any gas safety certificate before going into occupation, but on 9 November 2017 she was provided with one dated 31 January 2017 (i.e. pre-dating the start of her tenancy). In early April 2018, Ms Rouncefield was supplied with a further gas safety certificate referring to a check carried out on 3 April 2018, but no check had in fact been carried out on that date. There had been an inspection on 2 February 2018, but Ms Rouncefield did not accept that the gas safety certificate relating to that had been given to her until after she had been served with a section 21 notice on 1 May 2018.

The Court of Appeal held by a majority (Moylan LJ dissenting) that the issue whether Ms Rouncefield had received the February 2018 gas safety certificate before or with the section 21 notice should be remitted for determination by the County Court. If (and only if) that question was answered in the affirmative, the landlord would be entitled to a possession order.

The majority of the Court (Patten and King LJJ) appears to me to have arrived at its decision on the following basis:

In the light of these propositions, the majority of the Court of Appeal concluded that:

In Hathaway, Mr Minister had been granted an assured shorthold tenancy for a term of one year in 2008 and had remained in occupation as a statutory periodic tenant. In December 2018, he was served with a section 21 notice, but he denied its validity on the basis that he had not been given an energy performance certificate in accordance with regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012.

The Court of Appeal held that that did not matter. It explained that, although regulation 2(1) of the 2015 Regulations provided for the requirement contained in regulation 6(5) of the 2012 Regulations to be a prescribed requirement for the purposes of section 21A of the 1988 Act, section 21A only applied to tenancies pre-dating the 2015 Act if and to the extent that the Secretary of State had chosen to prescribe requirements extending to such tenancies, and the Secretary of State had not done so.

Mr Minister relied on the fact that section 41(3) of the 2015 Act provided for section 38 of that Act to apply to any assured shorthold tenancy in existence at three years after it had come into force, but Arnold LJ, with whom Henderson and Baker LJJ agreed, observed that that reliance was misplaced. He explained in paragraph 23:

Arnold LJ went on in paragraph 27:

Section 41(1) of the 2015 Act provides for a provision of sections 33 to 40 of that Act (and, hence, section 21A of the 1988 Act, which was inserted into that Act by section 38 of the 2015 Act) to apply “only to an assured shorthold tenancy … granted on or after the day on which the provision comes into force”. Further, section 41(2) states that such a provision “does not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 after the commencement of that provision and on the coming to an end of an assured shorthold tenancy that was granted before the commencement of that provision”.

The 2015 Regulations reflect section 41 of the 2015 Act. Regulation 1(3) explains that the Regulations “apply in relation to an assured shorthold tenancy of a dwelling-house in England granted on or after 1st October 2015” and regulation 1(4) specifies that the Regulations “do not apply to an assured shorthold tenancy that came into being under section 5(2) of the Housing Act 1988 on or after 1st October 2015 on the coming to an end of an assured shorthold tenancy that was granted before that date”.

By section 41(3) of the 2015 Act, section 38 of that Act (and therefore section 21A of the 1988 Act) applied to any assured shorthold tenancy of a dwelling-house in England which was in existence more than three years after section 38 came into force, but, as is apparent from Hathaway, section 41(3) merely empowered the Secretary of State to make regulations extending to assured shorthold tenancies to which section 21A of the 1988 Act had not previously applied. In the event, that power has not been exercised. Section 21A does not, therefore, have operative effect in relation to any assured shorthold tenancy granted before 1 October 2015 or any periodic tenancy arising under section 5(2) of the 1988 Act on the coming to an end of an assured shorthold tenancy that was granted before 1 October 2015.

The result is that section 21A of the 1988 Act would not have been applicable in either of the cases with which we are concerned if the tenants had not been granted new tenancies by agreement after 1 October 2015. However, Ms El Amrani was granted a six-month assured shorthold tenancy on 5 February 2017 and Ms Hubert and Ms Hamdaoui were granted one-year assured shorthold tenancies on 9 November 2015 and annually thereafter for four years. It follows that section 21A applied in relation to the tenancies at issue before us.

When interpreting legislation, the Courts “are seeking to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision”: see Darwall v Dartmoor National Park Authority [2025] UKSC 20, [2025] AC 1292, at paragraph 15, per Lords Sales and Stephens.

In undertaking the exercise, “[t]he court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature”, and “ the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief”: see Bennion, Bailey and Norbury on Statutory Interpretation (“Bennion”), 8th. ed., at section 13.01. On the other hand, “[t]he court’s function is of course to ascertain the legislative intention” and, “[g]iven the weight to be attached to the grammatical meaning, where the meaning of a provision is otherwise clear, the existence of anomalies may not be sufficient to displace that meaning”: see Bennion, at section 13.5. Further, “[t]he introduction  of a new statutory scheme may … give rise to anomalies as regards what is, and is not, dealt with under the new law”: see Bennion, at section 13.5. In Alexander v Mercouris [1979] 1 WLR 1270, Buckley LJ said at 1273:

There are also presumptions against doubtful penalisation, interference with property rights and retrospectivity. With respect to the first of these, Bennion explains in section 26.4 that, when interpreting legislation, the Court should take into account the “principle of legal policy that a person should not be penalised except under clear law” and that the “presumption against doubtful penalisation is not limited to the imposition of criminal liabilities” but “applies whenever a particular construction of an enactment can be described as inflicting a detriment of any kind, whether criminal or civil”. As regards interference with property rights, Bennion states in section 27.6 that  “[i]t is a principle of legal policy that by the exercise of state power the property or other economic interests of a person should not be taken away, impaired or endangered, except under clear authority of law”; that “[e]ven in cases where some degree of interference with a person’s proprietary rights is clearly intended, legislation will be construed as interfering with those rights no more than the statutory language and purpose require”; and that “[t]he principle against expropriation or other interference with the enjoyment of property rights is likely to carry particular weight in cases where no compensation is available”.

Turning to the presumption against retrospectivity, I cited various authorities bearing on this in Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point [2025] EWCA Civ 856, [2026] 1 All ER 514, at paragraphs 53 to 59. The principle was the subject of discussion in the House of Lords in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816. In that case, Lord Rodger observed in paragraph 187 that:

In paragraph 98, Lord Hope said that  "[t]he concepts of fairness and legal certainty carry much greater weight when it is being suggested that rights or obligations which were acquired or entered into before 2 October 2000 [i.e. the date on which the legislation at issue came into force] should be altered retrospectively”. In paragraph 161, Lord Scott drew this comparison:

In a similar vein, Patten LJ, giving the judgment of the Court of Appeal, said in Granada UK Rental & Retail Ltd v Pensions Regulator [2019] EWCA Civ 1032,  [2020] ICR 747 at paragraph 56:

Interpretation 1 focuses on the 2015 Regulations. Regulation 2(1)(b) refers to “requirement to provide tenant with agas safety certificate” and regulation 2(2) explains that the requirement prescribed by regulation 2(1)(b) is “limited to the requirement on a landlord to give a copy of the relevant record”. Mr Cohen argued that the use of the singular in each case (“a … certificate” and “record”) indicates that, for the purposes of section 21A of the 1988 Act, it suffices that the landlord has given the tenant a copy of the certificate in respect of the most recent check (whether under regulation 36(3)(a) or regulation 36(3)(b)). That interpretation, Mr Cohen submitted, is not only supported by the terms of the 2015 Regulations but consistent with their purpose. What matters, Mr Cohen said, is that tenants know that the premises which they are occupying are safe and, that being so, the fact that the tenant has not been given a record of an earlier check is not significant. After all, as Patten LJ said in Trecarrell at paragraph 24, section 21A “is not the primary sanction for non-compliance [with regulations 36(6) and (7) of the Gas Regulations]” and “[t]he imposition by section 21A of a bar to the service of a section 21 notice is … only collateral to [the criminal sanctions] and, at best, a spur to compliance”.

For his part, Mr Decker cited the explanatory memorandum to the 2015 Regulations which the Department for Communities and Local Government prepared for the Joint Committee of Statutory Instruments. Paragraph 4.4 of that stated:

Mr Decker relied on the memorandum’s use of the singular in “a safety certificate” and “a certificate”.

Mr Tom Morris, who appeared for the tenants, submitted that we are bound by Trecarrell to reject Interpretation 1. It is part of the ratio decidendi of Trecarrell, Mr Morris argued, that a landlord can serve a valid section 21 notice only if he has first given the tenant both a pre-occupation gas safety certificate and, where regulation 36(6)(a) of the Gas Regulations required one, a gas safety certificate under that provision. Had the 2015 Regulations required a landlord to do no more than provide the tenant with a record of the most recent check, so Mr Morris said, the Court of Appeal would not have needed to consider the position in relation to the pre-occupation certificate of 31 January 2017.

Leggatt LJ discussed how the ratio decidendi of a case is to be determined in R (Youngsam) v Parole Board [2019] EWCA Civ 229, [2020] QB 387 (“Youngsam”), in a passage to which the Court of Appeal referred approvingly in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, [2024] 1 WLR 3827. As Leggatt LJ explained in paragraph 48 of Youngsam, quoting Cross & Harris, Precedent in English Law, the ratio decidendi of a case has been said to be any ruling on a point of law “expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him”. Leggatt LJ went on in paragraph 51:

A passage from the judgment of Singh LJ in Jazztel v Revenue and Customs Commissioners [2022] Ch 403 is also relevant. Singh LJ said in paragraph 139:

In Trecarrell, there was no issue as to whether a landlord need do no more than give the tenant the record in respect of the most recent check to satisfy section 21A of the 1988 Act. It was not suggested by counsel for the landlord that that was the case and so the Court of Appeal did not address the question and it did not form any part of the basis on which it reached its decision. While the appeal could have raised the point that Mr Cohen and Mr Decker take, it did not in fact do so and the Court of Appeal cannot be said to have treated any ruling on the matter as “a necessary step in reaching [its] conclusion”. The Court decided that late service of a pre-occupation gas safety certificate would do, not that service of such a certificate was unnecessary.

In the circumstances, I do not accept that Trecarrell binds us to reject Interpretation 1. However, Mr Morris also maintained that we should reject Interpretation 1 even if not bound to do so by Trecarrell.

Regulation 2(1) of the 2015 Regulations provides for the requirements prescribed for the purposes of section 21A of the 1988 Act to be “the requirements contained in (a) regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012 … ; and (b) paragraph (6) or (as the case may be) paragraph (7) of regulation 36 of the [Gas Safety Regulations] (requirement to provide tenant with a gas safety certificate)”. One thing that does emerge from Trecarrell is that regulation 2(2) of the 2015 Regulations does not serve to exclude regulation 36(6)(b) from the requirements prescribed for the purposes of section 21A of the 1988 Act. On that basis, the “requirements contained in … paragraph (6) … of the Gas safety Regulations” are, on the face of it, the requirement under regulation 36(6)(b) to give the tenant a pre-occupation certificate and (where another check has become necessary under regulation 36(3)(a)) the requirement under regulation 36(6)(a) to give the tenant a further certificate. Given that regulation 2(1) relates to the whole of regulation 36(6) and not just regulation 36(6)(a) (as the landlord had contended in Trecarrell), compliance with both regulation 36(6)(a) and regulation 36(6)(b) would seem to be demanded.

With regard to the reference in regulation 2(1)(b) to “requirement to provide … a gas safety certificate”, the words form part of a description in brackets of regulations 36(6) and (7) of the Gas Safety Regulations. That would be an odd way to limit the requirements that were being prescribed for the purposes of section 21A of the 1988 Act. A much less oblique approach could have been expected if that had been intended.

Nor does regulation 2(2)’s reference to “requirement … to give a copy of the relevant record” obviously evince an intention to require a landlord to provide just the most recent gas safety certificate. Read naturally in the context, the preferable reading of regulation 2(2) appears to me to be that, where regulation 36(6) of the Gas Safety Regulations provides for a tenant to be given any record, it is enough for the purposes of section 21A of the 1988 Act that the document in question is provided, whether late or not.

In any event, as Mr Morris reminded us, by section 6 of the Interpretation Act 1978, “In any Act, unless the contrary appears, … words in the singular include the plural”. If, therefore, a contrary intention is not apparent, the references in regulation 2 of the 2015 Regulations to “a gas safety certificate” and “the relevant record” are to be understood as encompassing multiple certificates and records.

In my view, no contrary intention can be discerned. Nor, as it seems to me, is there any other sufficient reason to conclude that a landlord need have done no more than give the tenant a copy of the record in respect of the most recent check when the language of regulation 2 of the 2015 Regulations indicates otherwise.

It is to be remembered that Interpretation 1, if correct, would not apply only in relation to cases such as that involving the Trustees, Mr Hubert and Ms Hamdaoui, where a check was duly carried out before Mr Hubert and Ms Hamdaoui were first granted a tenancy and it is understandable that the Trustees no longer have a copy of the certificate in respect of it when they were not obliged to retain it for more than two years and the 2015 Act lay eight years or so in the future. If Interpretation 1 were right, it would also be applicable where, say, a landlord had knowingly failed to undertake any check before granting an assured shorthold tenancy on 1 January 2024 and was proposing to serve a section 21 notice in the following year. Arguably, a landlord need not undertake any check at all until on the point of serving a section 21 notice regardless of when the tenancy in question was granted. It is far from apparent that section 21A was not meant to bite in such a situation and, were it not to, the “spur to compliance” which (in Patten LJ’s words in Trecarrell) section 21A was supposed to supply would be significantly attenuated. Nor, as it seems to me, can there be any question of it being “absurd” for Parliament to have intended a landlord’s ability to serve a section 21 notice to depend on his having given the tenant records pursuant to both regulation 36(6)(a) and regulation 36(6)(b).

With regard to the various presumptions mentioned in paragraphs 50 to 53 above:

In all the circumstances, I do not accept Interpretation 1.

Interpretation 2 focuses on the Gas Safety Regulations and, specifically, on the wording of regulation 36(6)(b). That requires a landlord to ensure that “a copy of the last record made in respect of each appliance or flue is given to any new tenant of premises to which the record relates before that tenant occupies those premises”. Mr Cohen and Mr Decker argued that the words “before that tenant occupies those premises” are to be understood as referring to the tenant occupying the premises “pursuant to the new lease which renders the person a new tenant”. Given, it was argued, the definition of “tenant” (viz. the “person for the time being entitled to the term of [the] lease”), the “tenant” and the “lease” which gives rise to the “occupation” are inextricably linked. Support for Interpretation 2 was also said to be found in the fact that regulation 36(3)(b) refers to the “commencement of the lease” rather than “occupies for the first time”. It was submitted, too, that regulation 36(6)(b) would generate absurdity if “occupies the premises” were not taken to have the meaning for which the landlords contend. The examples which Mr Cohen put forward in this respect included situations in which, first, a person occupied a property under a lease for more than seven years (and so not pursuant to a “lease” within the meaning of regulation 36(1)) and was subsequently granted a lease for a shorter term (so that he became a “tenant” for the purposes of regulation 36) and, secondly, a person who was a “tenant” of a property left it for a few years before returning and being granted a new “lease”. Were Interpretation 2 rejected, Mr Cohen said, the former scenario would require the landlord to have produced before the tenant went into occupation under the lease for more than seven years the “last record” made before the tenant later became a “new tenant” (which, as Mr Cohen noted, would be impossible). With regard to the latter scenario, Mr Cohen submitted that the same impossibility would arise if the individual were deemed a “new tenant” or, alternatively, no notice at all would be required.

For his part, Mr Morris again contended that Trecarrell provides binding authority. By the time the section 21 notice was served on Ms Rouncefield, Mr Morris pointed out, she would either have been granted a second fixed-term tenancy or be deemed to have been granted a periodic tenancy under section 5 of the 1988 Act. Either way, she was occupying under a different “lease” from that under which she first went into occupation. Yet the Court of Appeal proceeded on the basis that the relevant “occupation” was referable to her original tenancy.

Whether or not, however, Interpretation 2 could usefully have been ventilated in Trecarrell, it was not. The Court of Appeal was not asked to consider Interpretation 2 and did not do so. There is no question of a ruling on the point having been treated by the Court as “a necessary step in reaching [its] decision” and so the decision cannot be regarded as providing binding authority against Interpretation 2.

Turning to the merits of Interpretation 2, Mr Morris submitted that regulation 36 of the Gas Safety Regulations works straightforwardly. Regulation 36(6)(b) imposes a duty on a landlord to give a new tenant the latest gas safety certificate before he goes into occupation. Thereafter, Mr Morris said, regulation 36(6)(a) takes over, imposing a recurring duty on landlords to provide existing tenants with each later gas safety certificate within 28 days. A tenant is thus assured of the safety of the appliances before first entering into occupation and annually thereafter. A person does not cease to be an “existing tenant” within the meaning of regulation 36(6)(a), or become a “new” one, when, say, a fixed-term tenancy is followed by a periodic tenancy under section 5 of the 1988 Act: he remains a “tenant” and his factual status as an occupier is unaffected. Mr Morris noted in this connection that Patten LJ saw regulation 36(6)(a) as applying to “tenants who continue in occupation from year to year”: see Trecarrell, at paragraph 22.

Mr Morris sought to explain away the examples of supposed absurdity propounded by Mr Cohen. Regulation 36(6)(b) of the Gas Safety Regulations requires a record to be given to “any new tenant of premises … before that tenant occupies those premises”. That signifies, Mr Morris argued, occupying for the first time as a “tenant” within the meaning of regulation 36. No difficulty therefore arises if a person has previously occupied under a lease for more than seven years: the landlord will not have to give him any record until he occupies as a “tenant” as defined in regulation 36. Nor, so Mr Morris said, is there a problem where someone goes into occupation, leaves and then resumes occupation under a new tenancy. Given the discontinuity, the individual will be a “new tenant” and his occupation under that tenancy will be what counts.

Mr Morris put forward an example of his own in support of his submissions. Suppose, he said, that a check were carried out a few days before the end of a fixed-term tenancy, the 12-month period allowed for the check expiring no earlier. Under regulation 36(6)(a), the landlord would have 28 days in which to give the tenant the resulting gas safety certificate. In contrast, Interpretation 2 would mean that the certificate had to be supplied before the end of the term. Mr Morris argued that that could occasion real practical difficulties and that there is no obvious reason why the 28-day period for which regulation 36(6)(a) provides should be curtailed because of the earlier expiry of the fixed-term tenancy.

When assessing the rival submissions, I do not think that the presumptions against doubtful penalisation, interference with property rights and retrospectivity are of any real help to the landlords. What is at issue in this context is the construction of the Gas Safety Regulations, which have been in force since 1998. There is obviously no suggestion that any event relevant to these appeals occurred before then or of the debate as to the correct interpretation of the Gas Safety Regulations bearing on any property rights which any party to the appeals had at that date. In any event, the Gas Safety Regulations did not themselves affect the ability of landlords to serve section 21 notices. There was no linkage between the Gas Safety Regulations and section 21 notices until 2015, and the correct interpretation of the Gas Safety Regulations will not have changed with the arrival of the 2015 Act and Regulations. In one respect, the presumption against doubtful penalisation favours the tenants. As mentioned in paragraph 74 above, Interpretation 2 would have the consequence of bringing forward the date by which tenants must be given gas safety certificates where there are successive tenancies even though the Gas Safety Regulations do not on any view make that plain.

Nor, in my view, does the presumption against “absurdity” provide the landlords with significant assistance. It seems to me that Mr Morris satisfactorily explained why the absurdities suggested by Mr Cohen do not arise on the tenants’ case.

The key question, I think, is what “existing tenant” and “new tenant” mean in, respectively, regulation 36(6)(a) and regulation 36(6)(b) of the Gas Safety Regulations. More specifically, where (as in the cases before us) a person has occupied premises under successive tenancies, is he a “new tenant” only when he goes into occupation under the original tenancy and an “existing tenant” as that tenancy is replaced? Or is he a “new tenant” whenever a fresh tenancy (whether by agreement or under section 5 of the 1988 Act) comes into being?

On balance, I agree with Mr Morris that, where a person remains in occupation of premises under a second or subsequent “lease” within the meaning of regulation 36 of the Gas Safety Regulations, he is an “existing tenant” to whom regulation 36(6)(a) applies, not a “new tenant” within regulation 36(6)(b). That view seems to me to accord with the natural meaning of regulation 36 in its context. A person is plainly a “new tenant” when he is originally granted a “lease”. While he continues to fall within the definition of “tenant” and to be in uninterrupted occupation, albeit under one or more further “leases”, my own feeling is that he is appropriately viewed as an “existing tenant” rather than a “new tenant”. As Mr Morris said, the terms of regulation 36(6) suggest that what was envisaged was that regulation 36(6)(b) would be applicable when a person first goes into occupation as a “tenant” and that regulation 36(6)(a) should then take over. It would, I think, be surprising if the idea had been that regulation 36(6)(b) should be in point on multiple occasions, as one “lease” superseded another. It is much more likely that paragraph 36(6)(a) was supposed to become the relevant one. That the ordinary meaning of regulation 36(6) is to that effect is, perhaps, reflected in the fact that Patten LJ understood regulation 36(6)(a) to apply to “tenants who continue in occupation from year to year”.

Additional support for that conclusion is, as it seems to me, to be found in the following considerations:

In all the circumstances, I have not been persuaded that Interpretation 2 is correct.

Interpretation 3 reflects the careful and detailed judgment of Her Honour Judge Melissa Clarke in Cassell v Sidhu. Judge Clarke arrived at the following conclusion in paragraph 67 of her judgment:

Judge Clarke’s conclusion was informed by the fact that regulation 36(3)(c) of the Gas Safety Regulations requires a landlord to retain a record only until two further checks have been carried out or two years have passed. She said this on the subject in paragraph 65 of her judgment:

With respect, however, I do not think it is possible to circumscribe the 2015 Regulations in this way. Regulation 2(1) provides in general terms for “the requirements contained in … paragraph (6) … of regulation 36 of the [Gas Safety Regulations]” to be prescribed requirements for the purposes of section 21A of the 1988 Act. Neither the 2015 Regulations nor regulation 36 of the Gas Safety Regulations mentions regulation 36(3)(c) of the Gas Safety Regulations. Nor, in my view, is there any other basis for restricting the 2015 Regulations by reference to regulation 36(3)(c) of the Gas Safety Regulations.

I do not therefore accept Interpretation 3.

In the cases before us, the tenants were not provided with gas safety certificates in respect of checks carried out in advance of their first going into occupation, albeit under predecessor tenancies. In my view, that is fatal to the validity of the section 21 notices which the landlords served on them. It may be that, as Judge Hellman said, regulation 2 of the 2015 Regulations has had “adverse consequences for landlords which … amount to unintended collateral damage incidental to the legislative purpose”, but I think he was right to rule in favour of Mr Hubert and Ms Hamdaoui. I would therefore dismiss the Trustees’ appeal against that decision and allow Ms El Amrani’s appeal.