Access injunctions: not as straightforward as they may seem…

January 24, 2025

Jane Talbot discusses how some of the issues faced by social landlords when it comes to obtaining access injunctions can be overcome.

As housing practitioners, an application we see regularly is for an injunction for access for gas safety checks. Over the last three months, four issues have been raised with me so I thought it was a good time to write an article on the subject.

Broadly speaking, the obligation on landlords, in relation to leases of less than 7 years, is to perform an annual check of the gas installations in a property and to provide a copy of the certificate to the tenant: Gas Safety (Installations and Use) Regulations 1998 r36. This is often mirrored in tenancy agreements. The tenants are required to give access by virtue of a combination of express and implied terms subject to receiving reasonable notice.

When a landlord has made appointments but has not been able to gain access, an application to the Court for an injunction requiring the tenant to allow access is often made. Failing to comply with the Regulations is a criminal offence and a serious matter for the Regulator so non-access cannot be ignored.

The four issues that have been raised recently are:

Whether a District Judge has jurisdiction to hear such cases?
Can the injunction include a provision for forced access?
What is the position in relation to shared ownership leases?
What evidence does the Court require as to the personal circumstances of the tenant?

Which level of Judge?

I have heard that some District Judges are refusing to hear access injunctions unless they include a claim for damages. Such applications are being referred to Circuit Judges which is causing delay.

The starting point is the basis of the application for a gas safety injunction. They are breach of contract injunctions (so more widely, in the housing context, can cover all sorts of access injunctions or applications for orders to comply with the terms of the tenancy, for example, condition of the garden). They are not applications under relevant legislation (i.e. unlike the ASB injunctions sought under Part 1 of the Anti Social Behaviour Crime and Policing Act 2014). Such applications are brought under Part 8 of the Civil Procedure Rules (CPR). This is designed for matters which do not contain substantial disputes as to the facts. The N208 claim form should be used. Often some level of damages are sought although rarely pursued at trial. Once the claim form is issued, it will be listed for a hearing. It seems to be that it is at this point that some DJs are concerned they lack jurisdiction to hear the matter.

Practice Direction 2B (PD2B) deals with allocation of cases to certain levels of the judiciary. PD2B para 1.1A states:

Circuit Judges and District Judges may exercise any jurisdiction conferred on the County Court or on a judge of the County Court. Section III of this Practice Direction sets out the matters that will be allocated to a Circuit Judge as well as those that may, or will normally, be allocated to a District Judge.

Para 8 states:

Applications for orders and interim injunctions which may not be made or granted by a District Judge in the High Court may not be allocated to a District Judge in the County Court. In the first instance, the following applications for orders and interim remedies(including injunctions whether interim or final) will be allocated to a District Judge—

(a) proceedings which have been or may be allocated to a District Judge pursuant to paragraph 11.1 below;

(b) injunctions sought in money claims which have not yet been allocated to a track and the amount claimed does not exceed the fast track financial limit;

(c) injunctions that are to be made under any of the following provisions—

(i) sections 36A, 26B or 26C or 91(3) of the Anti-social Behaviour Act 2002;

(ii)section 27(3) of the Police and Justice Act 2009;

(iii)section 3 of the Protection from Harassment Act 1997;

(iv)sections 34, 40 or 41 of the Policing and Crime Act 2009; or

(v)Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014.

8.2 An application for an order varying or discharging an injunction or an undertaking given to the court may be allocated to a District Judge.

8.3 Any proceedings in which the court may make an order committing a person to prison or attach a power of arrest to an injunction or remand a person will be allocated to a Circuit Judge, unless the order, power of arrest or remand is made—

(a) In proceedings which have been or may be allocated to a District Judge pursuant to paragraph 8.1 above;

(b) pursuant to section 23 of the Attachment of Earnings Act 1971; or

(c) pursuant to section 14 and section 118 (but only in relation to proceedings before a District Judge) of the County Courts Act 1984,
or where the order may be made in relation to a breach of an undertaking given in proceedings referred to in (a), (b) or (c) above.

Paragraph 11.1(a) states:

11.1 The following proceedings referred to in paragraph 8.1(a) will normally be allocated to a District Judge—

(a) any claim which has been allocated to the small claims track, fast track or intermediate track or which is treated as being allocated to the multi-track under rule 8.9(c), or any claim referred to in the table at Section B of Practice Direction 49E, except claims:

(i) under Part I of the Landlord and Tenant Act 1927;

(ii) for a new tenancy under section 24 or for the termination of a tenancy under section 29(2) of the Landlord and Tenant Act 1954;

(iii) for an order under section 38 or 40 of the Landlord and Tenant Act 1987;

(iv) under paragraph 26 or 27 of Schedule 11 to or section 27 of the Agricultural Holdings Act 1986;

(v) under section 45(2) of the Matrimonial Causes Act 1973 for a declaration of legitimation by virtue of the Legitimacy Act 1976;

(vi) under section 35, 38 or 40 of the Fair Trading Act 1973; or

(vii) under Part II of the Mental Health Act 1983.

(b) proceedings for the recovery of land, proceedings under section 82A(2) of the Housing Act 1985 or section 6A(2) of the Housing Act 1988 (demotion claims) or proceedings in the County Court under Chapter 1A of the Housing Act 1996 (demoted tenancies);

(c) the assessment of damages or other sum due to a party under a judgment without any financial limit; and

(d) any other proceedings with the direction or permission of the Designated Civil Judge or Supervising Judge or Supervising Judge’s nominee.

CPR 8.9 states:

8.9 Where the Part 8 procedure is followed –

(a) provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore –

(i) Part 16 (statements of case) does not apply;

(ii) Part 15 (defence and reply) does not apply;

(iii) any time limit in these Rules which prevents the parties from taking a step before a defence is filed does not apply;

(iv) the requirement under rule 7.8 to serve on the defendant a form for defending the claim does not apply;

(b) the claimant may not obtain judgment by request on an admission and therefore –

(i) rule 14.2 does apply; and

(ii) the requirement under rule 7.8 to serve on the defendant a form for admitting the claim does not apply; and

(c) the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply.

PD25A states at 1.3 a judge can make an injunction “in any other case any judge who has jurisdiction to conduct the trial of the action has power to grant an injunction in that action.”

When read together, it seems that the logical conclusion is that a District Judge can hear a Part 8 claim and make an injunction. However, it is far from clear and begs the question of why ASB injunction are specifically set out as being within the District Judge's remit when they are deemed to also be a Part 8 claim (the N16A claim form taking the place of the N208). Accordingly, it seems the safest option is to include a claim for damages of a limited amount, ie £25 and then it falls within the remit of the District Judges.

Forced access

My experience is that some Judges will grant a clause allowing a landlord to force access for the sole purpose of the gas check provided that any damage is made good and the property left secure. Other Judges will absolutely refuse to do so and believe they have no power to make such an order. There is no binding authority on the point.

It seems the most forceful (pardon the pun) argument in favour of such terms is found is CPR 70.2A:

(2) subject to paragraph (4), if a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, the court may direct that the act required to be done may, so far as practicable, be done by another person, being – (a) the party by whom the order or judgment was obtained; or (b) some other person appointed by the court”.

(4) paragraph (2) is without prejudice to – (a) the court’s powers under s39 of the Senior Courts Act 1981; and (b) the court’s power to punish the disobedient party for contempt.

A “disobedient party” is “a party who has not complied with a mandatory order, an injunction or a judgment or order for the specific performance of a contract.”

This argument was successfully made by Sovereign Housing on appeal to HHJ Berkley in the County Court at Bristol last summer. I suspect such arguments will continue to produce mixed results until the Appeal Court’s provide some much needed clarity.

Shared Owners

Shared owners buy a proportion equity share of the leasehold interest of the Property and rent the remainder on a periodic tenancy with the social housing provider. The leaseholder can increase their share of equity in the property by staircasing over time. The shared ownership lease will nearly always be for more than 7 years, as such the housing provider does not have duties under the Gas Safety (installation and Use) Regulations 1998. The lease ought to be checked carefully to ensure that the contractual position is no different.

Evidence before the court about the tenant’s circumstances

Last week I attended court and applied for an access injunction. There was clear evidence of written notice of appointments being hand delivered to the property but the door not being answered by the tenant on each occasion. The landlord had complied with the terms of the tenancy by giving notice, the tenant had breached it by not giving access or contacting the landlord after calling cards had been left. Nevertheless, the Circuit Judge adjourned the proceedings and requested that evidence be filed as to what was known about the tenant’s personal circumstances and health. The Judge requested evidence, for example, of whether the tenant had been in touch with the landlord about other matters such as rent arrears or repairs. The Judge was not prepared to make a draconian order without knowing that the tenant was “safe and well”.

I would therefore advise that the following evidence is contained in witness statements in support of such applications (in addition to the failed attempts at access and evidence of notice being given):

Whether the tenant has been in touch with their housing officer;
Have any visits taken place at the property – ie repairs carried out, tenancy meetings?
Has the tenant reported a repair recently?
Has contact been made with the next of kin or relatives?
Are there any cohabitees that can be contacted to ascertain the position?
Does the tenant have a social worker/support worker/probation officer and has contact been made with them?
Have the neighbours seen the tenant recently?
Is there anything else on the landlord’s files that may require further investigation or provide an explanation for the failure to engage?

If that evidence is before the court, the Judge will be more likely to grant an injunction at the first hearing.

Conclusion

What should be a relatively straightforward application can present difficulties. Hopefully, the suggestions contained in this article will assist in obtaining an injunction and avoiding costly adjournments.

Jane Talbot is a barrister at St Ives Chambers.