OPINION

Angela Boyce and Antony McCann (applicants) v City of Edinburgh Council (respondents)

Subjects: 21 Burdiehouse Avenue, Edinburgh

1. On 29 July 2016, three days before the right to buy was due to be abolished, Ms Angela Boyce applied to buy her council house at 21 Burdiehouse Avenue, Edinburgh in the joint names of herself and her then fiancé (now husband), Mr Antony McCann. She had left it so late because she knew she was in arrears with her Council Tax and she knew that tenants in such arrears would not be allowed to buy their homes. However a phone call received a week to 10 days before that contained information which offered the possibility of a way out of that difficulty and so she decided to apply.

2. That phone call came from an unidentified employee working in the Revenue and Benefits Section of City of Edinburgh Council and was to the effect that there had been a historic underpayment of her Housing Benefit resulting in her being due a substantial sum, large enough to cover the arrears of Council Tax. It was this change in her circumstances which led to her applying to buy her home in the hope that the money due would be paid in time to clear the arrears of Council Tax before her application came to be considered by the Council. In the circumstances more fully narrated below that did not happen and the Council issued a notice of refusal of her application on 15 August 2016 using the Royal Mail’s “Track and Trace Signed For Service” (still often referred to, as we sometimes do in what follows, as “recorded delivery”), a notice which Ms Boyce denies receiving with the result, as she contends, that she is now entitled to an offer to sell in terms of sec 63(2) of the Housing (Scotland) Act 1987 (“the 1987 Act”). It is an order to that effect which she asks for in the present application, which is made under sec 71(1)(a) and (2)(a) of the 1987 Act. The application is opposed by the City Council and we heard evidence and submissions on the matter at a hearing on 12 September at which Ms Boyce represented herself and the Council were represented by Mr David Anderson, advocate.

3. Before recounting the evidence, it is convenient to set out the relevant legislation.

Legislation

Housing (Scotland) Act 1987 (“the 1987 Act”)

Prior to its repeal on 1 August 2016 the 1987 Act provided:

“61.— Secure tenant's right to purchase.

…, a tenant of a house to which this section applies … shall, subject to this Part, have the right to purchase the house at a price fixed under section 62.

61D Limitation on right to purchase: arrears of rent, council tax etc.

(1) Subsection (2) and (3) apply where a tenant serves on a landlord an application to purchase at a time when the tenant, or any joint purchaser (within the meaning of section 61(6))—

(a) has not paid the landlord rent or any other charge lawfully due to the landlord under that or any other tenancy, or

(b) has not paid any sum lawfully due in respect of—

(i) council tax in respect of the house or any other house in the local government area in which the house is situated, or

(ii) water and sewerage charges in relation to the house or any other such house.

(2) If the landlord is a local authority landlord, it is entitled (but not required) to serve on the tenant a notice of refusal under section 68.

63.— Application to purchase and offer to sell.

(1) A tenant who seeks to exercise a right to purchase a house under section 61 shall serve on the landlord a notice (referred to in this Part as an “application to purchase”) which shall be in such form as the Secretary of State shall by order made by statutory instrument prescribe, …

(2) Where an application to purchase is served on a landlord, and the landlord does not serve a notice of refusal under sections 68 to 70 it shall, within 2 months after service of the application to purchase, serve on the tenant a notice (referred to in this Part as an “offer to sell”) …

68.— Refusal of applications.

(1) Where a landlord on which an application to purchase has been served disputes the tenant's right to purchase a house under section 61, it shall by notice (referred to in this Part as a “notice of refusal”) served within one month after service of the application to purchase—

(a) refuse the application; or

(b) offer to sell the house to the tenant under section 14, or under any other power which the landlord has to sell the house.

(2) Where a landlord on which an application to purchase has been served, after reasonable enquiry (which shall include reasonable opportunity for the tenant to amend his application), is of the opinion that information contained in the application is incorrect in a material respect it shall issue a notice of refusal within 2 months of the application to purchase.

(3) A notice of refusal shall specify the grounds on which the landlord disputes the tenant's right to purchase or, as the case may be, the accuracy of the information.

(4) Where a landlord serves a notice of refusal on a tenant under this section, the tenant may within one month thereafter apply to the Lands Tribunal for a finding that he has a right to purchase the house under section 61 on such terms as it may determine. …

71 Reference to Lands Tribunal

(1) Where—

(a) a landlord who has been duly served with an application to purchase fails to issue timeously either an offer to sell (even if only such offer to sell as is mentioned in paragraph (d)) or a notice of refusal;

the tenant (together with any joint purchaser) may refer the matter to the Lands Tribunal …

(2) Where a matter has been referred to the Lands Tribunal under subsection (1), the Tribunal shall consider whether in its opinion—

(a) any of paragraphs (a) to (c) of that subsection apply, and if it so finds it may—

(i) give any consent, exercise any discretion, or do anything which the landlord may give, exercise or do under or for the purposes of sections 61 to 84; and

(ii) issue such notices and undertake such other steps as may be required to complete the procedure provided for in sections 63 and 65 to 66C;

and any consent given, any discretion exercised, or anything done, under the foregoing provisions of this subsection shall have effect as if it had been duly given, exercised or done by the landlord …

84.— Service of notices.

(1) A notice or other document which requires to be served on a person under any provision of this Part may be given to him—

(a) by delivering it to him;

(b) by leaving it at his proper address; or

(c) by sending it by recorded delivery post to him at that address.

(2) For the purposes of this section and of section 7 of the Interpretation Act 1978 (references to service by post) in its application to this section, a person's proper address shall be his last known address.”

Interpretation Act 1978

“7. References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Cases

Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch)
Duffy v Normand 1995 SLT 1264
E K v City of Edinburgh Council LTS/TR/2016/30, decision of 27 Sept 2017
Macleod v Anderson 1961 JC 32
Moody v Godstone RDC [1966] 1 WLR 1085
Thomas v Dumfries & Galloway Housing Partnership Limited LTS/TR/2017/01 & 05, decision of 13 December 2017

Textbook

Walker & Walker: The Law of Evidence in Scotland, 4th Edn.

Witnesses

4. Although the application is in the names of both Ms Boyce and Mr McCann, only Ms Boyce appeared at the hearing and gave evidence. In what follows we refer to her “the applicant”. For the respondents, evidence was given by Ms Suzanne Pasieka, one of their Housing Officers, Ms Janice Galbraith, who was at the material time a team leader in their House Sales Team, and Mr Robert Scott Avinou, who was a Housing Officer in the same team.

The applicant’s evidence

5. Ms Boyce, 51, gave evidence that she had been a tenant of the Council since the age of 18, the last 17 years at her present address. She was aware the right to buy was coming to an end and had resigned herself to not being able to exercise it because she was in arrears with her Council Tax to the tune of £4,000 or so and she knew that the Council did not sell houses to tenants in arrears. However, a week to 10 days before the right was due to be abolished she received a phone call from someone in the Revenue and Benefits Section of the Council to tell her that they had been under-paying her Housing Benefit for a period of five years and she was due a back-payment of £4,835. This would be more than enough to cancel her Council Tax arrears of £4,415.18 so she had decided to apply to buy her home. The under-payment related to a child benefit element in her Housing Benefit: she ought to have been receiving Housing Benefit at an enhanced rate because her daughter had a disability.

6. The back-payment was, however, paid into her rent account with the Council, not her Council Tax account, resulting in a phone call from Ms Pasieka in the Housing Department to ask why she had this large amount at credit of her rent account and a large debit on her Council Tax account. Ms Boyce had been at her work when this call came through, so the conversation was short and she had asked Ms Pasieka to phone back. However, for whatever reason (as to which see Ms Pasieka’s evidence below), they had not spoken again and Ms Boyce had assumed that the credit on her rent account would be transferred to her Council Tax account. However that did not happen and it was later explained to her that the Council would not transfer money between accounts, or set one sum off against another, without the tenant’s consent. In cross-examination she emphatically denied that she had been asked if she wished this set-off to happen. What eventually happened to this money was that it was paid into Ms Boyce’s personal bank account on 31 August 2016 when a large part of it (£1,017) was swallowed up in an overdraft but from what was left she had paid £1,000 towards the Council Tax arrears and spent the rest on taking her daughter on holiday.

7. Having heard nothing from the Council, she phoned to ask what was happening to her application. Ms Boyce did not date that phone call when giving evidence but her application to the Tribunal says it was on 30 August. We understood from her evidence that she was told a letter had been sent out which she should receive shortly but what her application says is that she was told (on 30 August) that there was a backlog and she should call back later. In any event there is no doubt that it was in a second phone call, around mid-September 2016, that she was told her application had been refused and she was advised of her right to appeal to this tribunal.

8. As to why she had not received the notice of refusal, she said at one point in her evidence that she had never received tracked mail without signing for it. When it was pointed out to her that she had said in earlier correspondence with the Tribunal (undated letter received on 5 April 2017) that two letters sent out by the Tribunal using the tracking service had been received by her without having signed for them, she became confused but eventually accepted that if she had written that it must be true. In any event she knew that it was possible to receive recorded delivery mail without signing for it.

9. She denied having made the application knowing it would be refused. She was dyslexic, form-filling made her ill and she would not have put herself through it had she known it was going to be refused. She admitted knowing that the Council had a month within which to let her have either an acceptance of her application or a notice of refusal but denied knowing what the consequences of failure to do so were. She had thought her arrears were going to be cleared, in which case her application would be successful.

10. She accepted that the notice of refusal had been posted but it had not been received by her. Questioned about the similarity between her case and that of her friend, the applicant in the case of E K v City of Edinburgh Council (LTS/TR/2016/30, decision of 27 September 2017), she distanced herself from both E K (“she was a friend of mine”) and the facts of her case. E K had had something to gain from an outright denial of receiving the notice of refusal whereas she, Ms Boyce, did not. E K had no means of clearing her arrears and, therefore, no prospect of being allowed to buy her home, whereas Ms Boyce did. E K’s case had nothing to do with her and she resented being named in the Tribunal’s decision (as she is, at para [17]), despite not having been a witness, whereas E K herself was referred to only by her initials. (On that matter we would say that the tribunal in E K had their reasons for referring to the applicant only by her initials and we keep faith with that decision in this one.)

11. The witness accepted it was unusual for mail to go missing in the course of post but was adamant she had not received the notice of refusal. She explained that Mr McCann had not been living with her in August 2016, so could not give evidence about how household mail was handled.

Evidence for respondents

Suzanne Pasieka

12. Ms Pasieka has worked as a Housing Officer for Edinburgh City Council for 13 years. In 2016 she was a Primary Project Officer dealing with multi-storey billings but was also part of a larger team which included working on council house sales, an area of work familiar to her from her first five years with the Council when that had been her job. She described the process whereby tenants could apply to buy their homes and the checks done on things like arrears once an application reached the sales team. It was Council policy not to sell to anyone with arrears of rent or Council Tax.

13. She had dealt with Ms Boyce and Mr McCann’s application. On 9 August, having discovered the large surplus on Ms Boyce’s rent account and the large deficit on the Council Tax account, she had phoned Ms Boyce. It had been a brief conversation because Ms Boyce had been at work. She had asked if Ms Boyce had paid a large sum of money into her rent account with a view to clearing the arrears of Council Tax. Ms Boyce had said that was not the case and asked her to phone back. She had done so twice without reply. The conversation had not got as far as discussing the possibility of transferring the money from the rent account to the Council Tax account. Set-offs were not allowed without the consent of the tenant. She had kept the application for a couple of days and then discussed it with other members of the sales team when it was decided to refuse it. The computer system contained template refusal notices so all she had to do was fill in the name, address and details of the arrears. She described the mailing system by which such notices were sent out recorded delivery. This notice had been sent recorded delivery. Had it been returned undelivered it would have found its way to her and been kept along with the application form.

Janice Galbraith

14. Ms Galbraith has worked for the Council for over 15 years. In July and August of 2016 she was a Team Leader on the Council House Sales Team. She identified production R3 as a document containing guidance on the right to buy process which was given or sent out to enquirers. Among other things it told them that their application would be refused if they were in arrears of more than £50.

15. Because the right to buy scheme was coming to an end shortly, the sales team had decided to be flexible and give people as much help as possible because, if they got something wrong, there would be no chance of rectifying it. Whereas, if, during the currency of the scheme, an application to buy was refused because of arrears, it was always open to the tenant to clear the arrears and apply again, that was no longer going to be possible after 1 August 2016. So the sales team took extra steps, such as phoning people and giving them a chance to clear the arrears. In this case Suzanne (Pasieka) had phoned Ms Boyce and told her about the large credit on her rent account. She had tried to call back twice but there had been no reply and no voice-mail option. So the application had then been refused. Both notices of refusal and offers to sell were sent out recorded delivery. Very few notices or offers, out of the hundreds of applications she and her team had dealt with at that time, had been returned undelivered. So far as she knew this refusal notice had not been one of them.

16. As for the large sum at credit of the rent account, these funds would not be released to the tenant while there were arrears outstanding to the Council (although that appears to be exactly what happened when the funds were released to Ms Boyce on 31 August 2016).

Robert Scott Avinou

17. Mr Avinou is a Project Officer with the City Council and has worked with them for 18 years. In 2016 he had been working in the sales team, doing site visits and preparing plans of properties to be sold. His only involvement in this case was to try and track the refusal notice using the Royal Mail tracking service. It disclosed no evidence as to what had become of the package. Reference was made to an email of 23 November 2016 from him to the Royal Mail asking what had happened to the package since he had not been able to find anything on the “track and trace” system. The reply was “your Royal Mail Signed For item has not yet been confirmed as being delivered” and “consequently, I am sorry to inform you that I am unable to confirm the whereabouts of your item at this time”. Further enquiries on 10 February 2017 and 29 August 2018 had produced similar responses. He confirmed in answer to Ms Boyce that he was not aware of anyone in the Council having submitted a “Lost, damaged or delayed inland mail claim form” as suggested in the Royal Mail’s reply of 23 November 2016.

Credibility and reliability

18. There was nothing about the way in which Ms Boyce gave her evidence to suggest that she was doing anything other than telling the truth. Nevertheless a crucially important aspect of her evidence troubled us. That was the denial that she had ever accepted or received recorded delivery mail without signing for it. That did happen with at least two items sent to her by the Tribunal, as is acknowledged in the letter from her received on 5 April 2017. There are also aspects of her actings in the course of August 2016, while her application was pending, that cause us some difficulty. We return to these matters in our discussion section below. We found the witnesses from the Council both credible and reliable.

Submissions for applicants

19. Ms Boyce’s submissions were confined to one or two observations. Ms Galbraith had confirmed it was not Council policy to release money to tenants if they were in arrears. She had therefore expected the back-payment of Housing Benefit to be set off against the arrears of Council Tax. Since all responses from the Council – both notices of refusal and offers to sell – were sent out recorded delivery, she would not have known which kind of response the envelope contained. There was, therefore, no reason why she should refuse delivery. She criticised the Council for not filling in the lost item form and pursuing that process which might have shed some light on what had happened. In any event the whole situation was the fault of the Council because they had not applied the back-payment to the Council Tax deficit. Had they done that we wouldn’t be here.

Submissions for respondents

20. Mr Anderson acknowledged that Ms Boyce had given her evidence in a straightforward manner. It was lack of corroboration of what she said that was troubling. Mr McCann had not given evidence. He could have described his part in the process and how mail was dealt with in the Boyce/McCann household. He could have corroborated the non-receipt of the refusal notice. Where not supported, Ms Boyce’s evidence should be treated with care.

21. Counsel took us through the law on the right to buy process, including the right of Councils to refuse to sell housing stock where there were arrears. Section 61D(1) of the 1987 Act made clear that the crucial time for determining whether arrears existed was the date on which the application to purchase was served on the landlord. At that point in time in this case the back-payment had not been received into any of Ms Boyce’s accounts, so the fact that when it was paid later it had gone into the rent account, not the Council Tax account, although it made this a hard case, was irrelevant: the Council had been entitled to refuse the application.

22. In this case the arrears, as at that point in time, were admitted and it was not being disputed that the Council had been entitled to refuse the application. The question was whether, in the terms of sec 71(1)(a), the landlord had failed to issue timeously either an offer to sell or a notice of refusal. In E K he had submitted that the word “issue” implied that we were concerned only with the actions of the landlord. What the Tribunal had been given jurisdiction over in sec 71(1)(a) was whether a notice of refusal had been issued timeously, not whether it had been received. The tribunal in that case had been against him on this but it was open to us, as a differently constituted tribunal, to come to a different conclusion.

23. Addressing sec 7 of the Interpretation Act 1978, what that did was create an irrebutable presumption of service and then a rebuttable presumption as to the time of service, which was a question of fact. Where a document was properly addressed, the postage was pre-paid and posting took place there was no room for an argument that service had not taken place: no more was required. The only argument could be as to when it was received and that only arose in a case where the date of receipt was relevant. It would be illogical to have a provision which firstly provided that service had taken place because all the requirements for service had been satisfied and then, secondly, opened up the possibility that service had not taken place at all because the document had not been received.

24. Mr Anderson then drew attention to the close similarity of the E K case on its facts and prayed in aid what the Tribunal had said in that case (at paras [47] and [48]) about the significance of the absence of (i) corroboration of the applicant’s account and (ii) evidence from the Royal Mail.

25. Reference was made to what was said in Walker & Walker on Evidence at 3.6.6 as to the importance of presumptions: they were not to be defeated easily. Here the onus was on Ms Boyce to rebut the statutory presumptions and the question for the tribunal, assuming we did not sustain any of counsel’s prior arguments, was whether she had done so.

Tribunal’s consideration

26. We do not think it is necessary for us to make findings in fact in this case (save on the central question of whether the notice of refusal was delivered), given that there is no dispute as to (i) the existence of Council Tax arrears at the date of submission of the application to buy and (ii) the timeous posting by the respondents of a notice of refusal, properly addressed and pre-paid, using the “track and trace” system. So we proceed immediately to the question whether it is open to us to consider evidence of non-receipt and, if it is, whether we are satisfied the notice was not received. Although this has involved traversing much the same ground as was covered by the Tribunal in E K and, as it turns out, arriving at the same result, out of deference to Mr Anderson’s adherence to all of the arguments advanced in that case, we have thought it necessary to take our own approach to this and consider matters afresh.

27. The first question to be addressed is Mr Anderson’s submission that sec 71(1)(a) does not allow us to go beyond the question whether the respondents issued the notice of refusal. This is a very attractive argument and would be compelling but for the reference to sec 7 of the Interpretation Act in sec 84(2) of the 1987 Act. It is an attractive argument, firstly, because it allows us to give effect to the ordinary meaning of the word “issue”, in the phrase “Where a landlord ... fails to issue timeously either an offer to sell … or a notice of refusal”. On the ordinary meaning of that phrase, it cannot be said that the respondents here failed to issue the notice of the refusal. On the contrary, they issued it when they posted it, on 15 August 2016, well within the permitted time. Secondly, it is attractive because it is simple and clear. Thirdly, it is attractive because it avoids the possibility that a landlord who does all that is required of him in the legislation can be defeated by the vagaries of the postal system or the false denial of delivery (if believed, though false) with possibly serious consequences (in terms of loss of an item of housing stock which they were legally entitled to retain), as the facts of this case show.

28. However, attractively clear and simple as that submission is, receipt of a document by the intended recipient is also important. It advises him or her of where they stand, what is required of them, what their rights of appeal and any relevant time period for the same are and so on. So it is not surprising that the 1987 Act does not leave it at that. As the tribunal in E K rightly observed, the Act has to be read as a whole. So we have to have regard to sec 84. What subsec (1) of that section does is list the ways in which it is permissible to serve (or for present purposes “issue”) a notice or other document under the Act. Doing it by some other means will be of no avail. Here the notice was issued in one of the permitted ways, by sending it by recorded delivery to Ms Boyce at her “proper address”. Subsec (2) defines what a person’s proper address means. But it does so not only for the purposes of that section but also for the purposes of sec 7 of the Interpretation Act. This is when the waters begin to get muddied because the inescapable inference from that reference to section 7 is, in our view, that it applies to documents served under the 1987 Act. So a consideration of its terms is unavoidable.

29. Before we address the authorities discussed in E K we try to make sense of the section on its terms. The first part has to do with the sending of the document in question. We understand the words “unless the contrary intention appears” to refer to the Act authorising or requiring the document to be served, so that it means “unless the contrary intention appears in that Act”. It is possible that an Act may impose additional requirements to those listed in sec 7. It is more difficult to understand where else a “contrary intention” may appear from. It is unlikely to refer to the sender of the document because that person’s intention would always be to serve the document. Reading that part of section 7 in that way it means that, provided the Act under which the document is being served does not require something different, service is deemed to have been effected where the listed requirements have been met and the date of service would be the date of posting.

30. That would be a clear provision which would have the same attractions as those identified in relation to sec 71 to at para [27] above. But, again, this provision does not stand alone. The section goes on “and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”. What is deemed to have been effected is service. So service is not complete until the document is delivered. There is a presumption that that has taken place “at the time at which the letter would be delivered in the ordinary course of post”. That presumption can be rebutted (it applies “unless the contrary is proved”). Our conclusion from our reading is, therefore, that whether the respondents have failed to issue the notice of refusal depends on whether it was delivered.

31. We now turn to the authorities. These were more extensively canvassed in E K at paras [38] to [46] and in Thomas v Dumfries & Galloway Housing Partnership (at paras [21] to [27]). There are only two Scottish cases, Macleod v Anderson and Duffy v Normand, both from the High Court of Justiciary, and it will suffice to look at two of the English cases, Calladine-Smith v Saveorder Ltd and Moody v Godstone RDC.

32. Macleod v Anderson involved the service of a notice of intended prosecution on a driver under the Road Traffic Act 1930. In terms of sec 21 of the Act it required to be served within 14 days of the commission of the offence. Although the notice was posted by registered post and postmen made three efforts to deliver it within the 14 days they could not because the accused was away on holiday. It was eventually served personally on him after he came back from holiday but 17 days after the commission of the offence. The sheriff having found the accused not guilty for that reason, the Procurator Fiscal appealed to the High Court. In refusing the appeal, the first point we note from the judgment of Lord Justice-Clerk Thomson is that (at page 37) he reads the words “unless the contrary intention appears” as referring to the 1930 Act. With that we respectfully agree. His Lordship then goes on, upholding the decision of the sheriff not to convict:

“But then by the concluding words [of sec 26 of the Interpretation Act 1889, which was in substantially the same terms as we now have in sec 7 of the 1978 Act] the sending of the notice was deemed, unless the contrary was proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post. But where it was proved that the letter was not delivered in the ordinary course of post, and indeed was not delivered at all, then the contrary was proved, and there was no compliance with section 21. With the result, however it is reached, I am prepared to agree.”

33. Lord Patrick treated the matter slightly more fully (at page39):

“If section 21 [of the 1930 Act] stood alone, it would be true that the prosecutor had complied with its terms, if these are to be read in a literal sense. The question would remain whether section 21 was to be read in a literal sense, or was to be construed as requiring not only the sending of the notice but its delivery within the fourteen days.

But section 21 does not stand alone. It must be read along with section 26 of the Interpretation Act, 1889, which is in these terms [His Lordship then recites its terms]. This section plainly applies to section 21(c) of the Road Traffic Act, 1930, since no ‘contrary intention’ appears in that statutory provision. It deals with two matters:- (a) the manner of effecting the service; and (b) the time when the service is effected. The service is to be effected by properly addressing, prepaying, and posting a letter containing the notice. That was done in this case.

When, however, the date when service was effected is of moment, as it is when service must be effected within a specified time, the second part of section 26 of the Interpretation Act comes into play. In set terms it rules out the date of posting as the date when service was effected. It provides that the service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved, that is to say unless it is proved that the letter was not delivered in the ordinary course of post.

Accordingly, in this case, the prosecutor cannot rely on the date when the notice was posted as being the date when service was effected. Nor can he rely on the date which the Interpretation Act dictates shall be deemed to be the date when service was effected, the date when the notice would be delivered in the ordinary course of post unless the contrary is proved, since it has been proved that it was not so delivered. The date when service was effected is vital, and is in question. No possible date remains by which to test whether service was effected within the fourteen days, save the date when the notice was actually delivered. “ [Emphasis original]

34. What emerges from this case is that where sec 26 of the Interpretation Act 1889 applied service was not completed by the posting (conform to the requirements of that section) of the article in question: delivery was also necessary. It seems to us that logically this must apply whether or not it is a case in which delivery within a particular time is necessary. If delivery is required for effective service you have to ask whether it has taken place. In the absence of evidence to the contrary, the statutory presumption kicks in. But that presumption can be rebutted. If the effect of the rebuttal evidence is to show that delivery did not take place at all, then there is no valid service.

35. Duffy v Normand involved the service of a report in a drugs case upon an accused. The accused’s wife had collected the package containing the report from the local post office (but had not given it to her husband) and the case was decided on the basis that delivery of the package to her equiparated with delivery to the accused himself. Accordingly, as Lord Justice General Hope observed (at page 1267A), it was not necessary for the Court to consider “the more fundamental question whether it will ever be open to an accused on whom a document has been served by sending it to him by registered post or by the recorded delivery service to argue that it was not served on him because he did not receive it” and the Court expressly reserved their opinion on the point, saying (at page 1267D) “It is clear that if this point is to be developed it will require to be made the subject of a much more careful citation of authority than we were favoured with in this case”. Macleod v Anderson was not cited. All that can be taken from the case is that the Court did not close the door on such an argument.

36. The English case of Moody v Godstone RDC involved a criminal prosecution arising out of the failure to obtemper an enforcement notice by a local authority under the Town and Country Planning Act 1962. The formalities of service of the notice had been complied with but the defendant denied having received it. In refusing an appeal against conviction, the Court of Appeal held that because there was no “vital element that the enforcement notice has to be served by or at a particular date” the appellant could not rely on sec 26 of the 1889 Interpretation Act to show that service had not been effected. So the case suggests that the second part of (now) sec 7 of the 1978 Act only applies where there is a time requirement of some sort for the notice to be received. That does not accord with our own view of sec 7 but, as the Tribunal observed in E K, there is a “vital element” in the present case; the requirement to serve the notice within one month contained in sec 68(1) of the 1987 Act.

37. Calladine-Smith v Saveorder Ltd involved the service of a counter-notice by a landlord on a tenant under the Leasehold Reform, Housing and Urban Development Act 1993. Section 7 of the Interpretation Act applied. The tenant denied having received the counter-notice. The County Court judge accepted a submission that the words “unless the contrary is proved” applied to the first part of section 7 and not to the presumption as to delivery and found for the landlord. In upholding an appeal against that decision Mr Justice Morgan, sitting in the High Court, held (1) that the words in question clearly referred to proof of delivery not taking place in the ordinary course of post and (2) that the standard of proof was the balance of probabilities. The case supports the view that it is, in the words of Lord Justice General Hope in Duffy v Normand (at page 1267C), “open to the alleged recipient to say that he did not receive the document at all”.

38. This brief survey of the leading authorities north and south of the border, reinforces the view we had ourselves taken of the meaning and effect of sec 7 as set out at paragraphs [29] and [30] above. We therefore hold, as did the differently constituted tribunal in E K, that it is open to the applicant in this case to try to prove that the notice was never delivered and, consequently, that service in terms of sec 63(2) of the 1987 Act has not taken place.

39. So we now turn to the evidence. We have already described one of the aspects of the applicant’s evidence which troubles us: her initial denial that recorded delivery mail had ever been delivered to her without being signed for. That is simply not true as her own earlier written statement, corroborated by the Tribunal’s file on this case, proves. Two items sent to her by the Tribunal, using the tracking service, were delivered but not signed for. In the absence of evidence from the Royal Mail we cannot say how frequently this happens but it happens. The significance of this is that it weakens the corroborative value to Ms Boyce of the “non-signature”. It might be thought that the absence of a signature would be quite strong evidence to the effect that the package had never been delivered and therefore quite strongly supportive of the applicant’s position but when we know that two items of mail sent recorded delivery have been delivered to the applicant without being signed for the effect of that evidence is considerably less.

40. Staying with this chapter of evidence, we also have to consider the significance of the fact that the notice of refusal was never returned to the respondents. That is what the witnesses who gave evidence for the respondents would have expected to happen. According to Ms Galbraith it did happen from time to time, though not often. Although it is known that sometimes things just get lost in the Mail (as we decided must have happened in the case of Thomas v Dumfries and Galloway Housing Partnership Ltd), one very obvious inference from the fact that mail has not been returned undelivered is that it has been delivered.

41. Turning away from what may or may not have happened to the package containing the notice, there are aspects of the applicant’s behaviour over the course of August 2016 which perplex us. One is her failure to do anything following the phone call from Ms Pasieka on 9 August. This was an unsatisfactorily short conversation because Ms Boyce was at work. It did not enable Ms Pasieka to take instructions as to what was to be done with the large credit on Ms Boyce’s rent account. Ms Boyce asked Ms Pasieka to phone back, which she did twice without answer. In these circumstances we find it very strange that Ms Boyce did not make it her business to contact Ms Pasieka to ask for the transfer of her funds into the Council Tax account to settle the arrears. Even if we accept, as was her evidence, that she assumed that is what would happen, we find it surprising that she did not phone up to make sure that it had in fact happened. Perhaps she knew, or suspected, that it was too late by that time anyway but (a) the arrears would have to be cleared sooner or later in any event and (b) it might just be that the Council (who were at that time being more flexible in helping tenants since it would be their last chance to buy their homes), having had the arrears cleared, would agree to sell her home in spite of the arrears having been outstanding when she applied.

42. Instead of being transferred to her Council Tax account, on 31 August 2016 the money was somehow (despite it being Council policy not to release funds to an individual who was in arrears) released into Ms Boyce’s personal bank account, where some of it went to clear an overdraft on that account, leaving (after payment for a holiday with her daughter, who was, after all, the intended beneficiary of the back-payment), only £1,000 to pay towards the Council Tax arrears.

43. The significance of these actings is this: they lead us to question whether Ms Boyce was, as late as the end of August, unaware that her application had been turned down. If she had already been told (whether by receiving the notice of refusal or otherwise) that her application had been refused we can understand that she might want to bypass her Council Tax arrears and have the money paid directly to herself. Certainly these events cast doubt on her evidence that she only became aware of the fact that her application had been refused in a telephone call to the respondents’ sale team in mid-September.

44. Although it is barely credible that a person who was expecting a response to an application to buy her home from the Council would overlook that letter when it arrived, there must be a possibility that this is what happened. On this aspect of matters, while we do not think there was any force in Mr Anderson’s criticism of Mr McCann not being called given Ms Boyce’s explanation that he was not living with her at the time, the fact remains that there was no-one to corroborate her evidence of non-delivery.

45. It is convenient at this point to interject something about Mr McCann and the E K connection. Although there are parallels between this case and E K, there are also differences, the most notable being that Ms Boyce had no intention of applying to buy her home until she was told of the back-payment. Another difference is the way in which Ms Boyce gave her evidence. It is clear that the members of the tribunal in E K were unimpressed by the applicant as a witness. She was not a straightforward witness and engaged in fencing with counsel (para [47]). We, on the other hand, formed quite a favourable impression of Ms Boyce as a witness: there was nothing about the manner in which she gave her evidence to suggest anything other than that she was telling the truth. As we have already said, our difficulty was with the content of her evidence. Suffice to say, therefore, that we do not think anything about the E K case has a bearing on this one. In particular, we have not formed a poorer impression of Ms Boyce as a result of her (perhaps, now, former) friendship with E K. Similarly we attach no significance to Mr McCann’s involvement in both cases.

Decision

46. The conclusion we have reached, therefore, is that, because of (a) the inconsistency in her evidence as to whether tracked mail had ever been delivered to her without a signature being obtained, (b) the fact that the package was never returned to the respondents undelivered, and (c) the questions which arise from her lack of engagement with Ms Pasieka and her subsequent handling of the back-payment, we are not persuaded that Ms Boyce has discharged the onus on her to show that the notice of refusal was not delivered. That being the case, we find, on the balance of probabilities, that it was delivered in the ordinary course of post and, therefore, timeously for the purposes of the 1987 Act, although what became of it thereafter is unknown. The application is therefore refused.

47. We close by observing that this decision is consistent not only with that of the differently constituted tribunal in E K but also with the (again differently constituted; the President and Mr Oswald) decision in Thomas v Dumfries & Galloway Housing Partnership in which the boot was on the other foot and it was receipt by the landlord of an application to buy that was at stake. On the facts of that case the tribunal held it proved – because of the strength of the evidence led by the respondents – that the statutory presumption of delivery had been rebutted but all three decisions are at one in saying (a) that service includes not only the act of sending but delivery and (b) that it is open to the intended recipient to prove that delivery never happened.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 October 2018

Neil M Tainsh – Clerk to the Tribunal