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Section 21 Notice Update – Again?

Updated Section 21 Notice

The Ministry of Housing Communities & Local Government (MHCLG), again, had made an error on the Form 6A, section 21 notice.

The error was corrected and Form 6A was updated on 12 August 2019.

However, the Form 6A update was updated without any accompanying statutory instrument which means the updated Form 6A is not the notice prescribed by law. Section 37 of the Deregulation Act 2015 states:

The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England. – Emphasis added.

Landlords who use the updated version will, on a technical point of law, be using the incorrect form of section 21 notice. However, there is a provision in the principle statutory instrument (S.I. 2015/620) which states that a section 21 notice shall be valid, if it is served in the form prescribed or substantially to the same effect.

But, what is ‘substantially to the same effect’?

The term ‘substantially to the same effect’ is a saving clause which could remedy a minor error in a prescribed notice. A notice is substantially to the same effect as that prescribed if the notice meets its legislative purpose and not significantly different in content. In the authority Mountain v Hastings (1993) 25 H.L.R. 427 Ralph Gibson LJ said:

“The regulation, however, expressly permits the notice to be effective in the prescribed form if it is ‘substantially to the same effect’, which I take to mean to be showing no difference in substance having regard to the legislative purpose of the provisions as a whole.”

Further clarity was provided by Lord Justice Lewison in Ayannuga v Swindells [2012] EWCA Civ 1789 in which he stated:

“I agree. The approach that we must take is clearly laid down by this court in Ravenseft Properties Limited v Hall to which Etherton LJ has referred. We must compare the form or information prescribed on the one hand and the information in fact supplied on the other. We must then ask, in the light of the purpose of the notice or the provision of information, whether the substance of the information has been supplied bearing in mind that that is a matter of fact and degree.”

Accordingly, when comparing the updated version of Form 6A and the previous version, they are not substantially different and still meet their legislative purposes.

Whilst a court is likely to agree Form 6A in its updated form is valid because it is substantially the same as the previous version, the issue raises concerns as to why the form was updated without further statutory instrument.

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