Are You Being Served ?

If a council is adamant they sent a notice (perhaps a section 235 demand for documents, a section 239 notice of entry, an improvement notice or prohibition order), but the intended recipient did not receive the notice, where does the affected member of your association stand?

Has the notice been properly served if it did not reach the recipient?

Is non-receipt a “reasonable excuse” defence ?

Such questions may be particularly pertinent for members who spend significant amounts of time abroad.

An Upper Tribunal case:

Newcastle CC v. Abdallah [2024] UKUT 140 (LC) covers the case of a landlord with a Part 3 licenced property who failed to comply with a mandatory licence condition to provide information to the council when the notice had been sent by ordinary post (not registered) to the address of a property Mr Abdallah no longer occupied.

Mr Abdallah did not receive the notice until some considerable time after it was posted. He actioned it fully as soon as he knew of it, but the council fined him for non-compliance all the same, which he then appealed.

He had previously informed the council of his change of address for the purposes of council tax, but had not informed the department administering the licence.

The decision:

The Upper Tribunal determined that the notice sent by ordinary post to the “last known address” is deemed served, and that the address provided by Mr Abdallah to the licencing team was his “last known address” irrespective of the fact that other departments within the council had a more recently communicated different address on record.

A reasonable excuse:

At First-tier Tribunal (FTT), Mr Abdallah had shown that the Royal Mail forwarding service had expired prior to the date that the notice was served, and the FTT accepted that as evidence that he had not received the notice; thus he had a “reasonable excuse” and had committed no offence.

This aspect of the FTT case was not challenged by the council, so Mr Abdallah did not need to pay the fine and had no offence on his record.

Conclusion:

The council only needed to show the notice had been sent by ordinary post for the notice to be deemed served.

Mr Abdallah committed no offence as he had the “reasonable excuse” of not having received the notice; but he did have the burden of proof -- meaning he had to provide evidence he had not received the notice even though proving a negative is often impossible.

For someone who is abroad at the time a notice is served by post, meaningful evidence of not being at the address at the relevant time, such as flight tickets, would be necessary to support a “reasonable excuse” defence if the matter is to be determined through any form of judicial proceedings.