Section 21 and Deregulation Act and form 6A?

From DCLG >> https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/515661/Notes_to_Form_6A_FINAL.PDF

"Notice seeking possession of a property let on an Assured Shorthold Tenancy
(Form 6a)
This form should be used where a no fault possession of accommodation let under an
assured shorthold tenancy (AST) is sought under section 21(1) or (4) of the Housing Act 1988.
This form must be used for all ASTs created on or after 1 October 2015 except for statutory periodic tenancies which have come into being on or after 1 October 2015 at the end of fixed term ASTs created before 1 October 2015.

The validity period of this form is six months following the date of its issue unless the tenancy is a periodic tenancy under which more than two months’ notice is required, in which case the validity period is four months from the date the tenant is required to leave (see notes accompanying the form).

You cannot use this form:

Prescribed Information
The landlord is required to provide a copy of the Department for Communities and Local Government’s publication “How to rent: the checklist for renting in England” by providing a pdf copy (which may be obtained from http://www.gov.uk/government/publications/how-to-rent). We recommend that this should be given at the start of the tenancy. Landlords are not required to supply a further copy of the publication each time a different version is published during the tenancy.
Where the landlord has failed to provide the publication, this form may not be used.
However, this restriction is lifted as soon as the publication has been provided.
in the first four months of the tenancy (but where the tenancy is a replacement
tenancy, the four month period is calculated by reference to the start of the original
tenancy and not the start of the replacement tenancy – see section 21(4B) of the
Housing Act 1988);
where the landlord is prevented from retaliatory eviction under section 33 of the
Deregulation Act 2015;
where the landlord has not provided the prescribed information and/or prescribed
documents as set out below;
where the landlord has not complied with the tenancy deposit protection legislation; or
where a property requires a licence but is unlicensed.
Form 6a
The requirement does not apply where a landlord is a private registered provider of social housing or where a landlord has already provided the tenant with an up-to-date version of the booklet under an earlier tenancy.
If the tenant has not notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, the landlord must provide a paper copy of the publication.

Prescribed documents:
Where the landlord has failed to comply with certain existing legal obligations, this form
may not be used. However, this restriction is lifted as soon as the obligations have been complied with. The obligations are the requirement on a landlord to provide the tenant with:
•
an Energy Performance Certificate (Reg 6(5), The Energy Performance of Buildings
(England and Wales) Regulations 2012); and
•
a gas safety certificate (Reg 36(6)(a), The Gas Safety (Installation and Use)
Regulations 1998)
Tenants that need advice about this notice, and what to do about it, should take it
immediately to a citizens’ advice bureau, a housing advice centre, a law centre"

The new regulations only apply for post-October 2015 tenancies.

You can use form 6A for older tenancies because there is no prescribed form for these tenancies. I.e. you can use any form you want.
Even if you do use form 6A you won't have to comply with the new regulations since they don't apply to the tenancy.

I don't know where the idea that the new regulations come hand in hand with form 6A can possibly come from...

That being said, form 6A contains plenty of guidance related to the new regulations and also provides harmful suggestions so I would not use it for pre-October 2015 tenancies as it can only confuse tenants.

i would echo what Romain has just said..

This you see is confusing as above 2 different responses....

Old rules does not require you to use a particular form at all, it just needs to contain the information pertaining to the date, possession address etc. to comply - so you cannot be told that you cannot use the form 6A as that does contain the correct information required under S21(1)(b).

The drafting of the notice seems to be in contradiction with pre-DRA 2015 legislation. If the law does not apply to that tenancy why by using that particular piece of paper does it make it invalid? What sub-section of S21 HA1988 does it say you cannot use it?

It seems that option 2 is was not what the law intended... surely?

Reply to the comment left by "Claire White" at "01/03/2017 - 11:39":

what are you looking to do Claire?

Hi Mark,

I am just hoping to find out what the correct answer is.

ah, so you're not actually looking to serve a notice then?
i havent read all of Neils post as my attention span doesnt last long but what Romain says is how i view things with regards to serving of notices.

Hi Mark

No, it was a probative question to gauge the response of community for their understanding. Even the just based on the 2 responses above show that clarity is required regarding this.

If professionals in the industry don't know for sure then how can landlords follow the correct path?

This seems like a repeat of the poor deposit regulation drafting all over again where we will only find out after a Court of Appeal decision.

As said, new regulations do not apply to 'old' tenancy whether or not you use Form 6A.
That form was designed with the new regulations in mind and includes a lot of blah blah about them. But that does mean that these regulations will apply to an 'old' tenancy if you use Form 6A.

Now, this may confuse a tenant and give them the wrong ideas so, in my view, it is best not to use Form 6A unless you have to.

I don't think that there are any contradictions between replies so far. The DCLG's guidance assumes a 'new' tenancy.

Reply to the comment left by "Romain Garcin" at "01/03/2017 - 14:49":

I agree with Romain's assessment and would like to add that because form 6A sets out the requirements under the Deregulation Act, if the landlord hasn't complied with these even with a pre-Dereg Act AST many judges would reject the landlord's claim as form 6a is stipulating this but the landlord hasn't complied. It is therefore a risk to use form 6a for a pre-Dereg Act tenancy AND not comply with the Deregulation Act, and this is why most guides tell you to use the appropriate form.

For example, the other day I had a case where a possession claim was overturned because the landlord had served section 21 by 1st class post with a certificate of postage AND served another copy with a witness but because the AST stipulated that notice would be validly served by registered or recorded delivery but was otherwise silent, the judge used that basis to overturn.

From 1 October 2018, all ASTs will have to comply with the Deregulation Act.