Volume 3
Annex C Service Of Documents
C.1. The 2006 Act gives local authorities new powers to deal with houses which owners are not maintaining. It will be important for local authorities to ensure that owners know what these powers are, and are aware when the local authority is using them. And there are some elements where the Act requires local authorities to serve notice of their decisions in a certain way.
C.2. This annex looks at these situations, and the requirements which the Act sets out. It is non-statutory guidance. Authorities will want to consider how to manage these processes, and in all cases they should confirm with their own legal advisors that they are fulfilling the requirements of the Act. But they may find it useful to consider the overview which this annex provides.
C.3. This annex looks only at the procedural requirements of serving notices. Chapters 2, 3 and 4 of this guidance provide more information on what each notice should contain.
When, and to who, a local authority has to serve a document
C.4. The following table sets out the requirements for maintenance orders and maintenance plans:
Reference | Documents | Who should receive the notice |
|---|
(s42) s62 | Maintenance order | - the owner and occupier of the house concerned;
- any creditor holding a standard security over that house;
- any person who receives rent in respect of that house, whether directly or indirectly; and
- any other person whom the local authority considers to have an interest in that house.
|
s46(4), s62 | Notice of local authority's decision to approve, reject or devise a maintenance plan | |
s47(4), s62 | Notice of variation or revocation of maintenance plan | |
s62 (3)
C.5. The local authority must serve notice on the owner and occupier. But it may be that the authority is unaware of the existence of any of the other people which this table sets out.
C.6. This will not invalidate the notice, so long as:
- the local authority has exercised its powers to identify owners under this Act; and
- after this, the authority is unaware of the existence of any person on whom it should have served the notice.
C.7. The powers to identify owners are set out in s186 of the Act.
Recovery of expenses
s59 (5)
C.8. There is no statutory requirement to serve notice if the local authority wishes to recover expenses (see Annex E), unless it wants to declare that the expenses will be recoverable in instalments. In this case it must serve notice on the owner of the property.
C.9. But it would be good practice for local authorities to serve notice in all cases where they intend to recover expenses.
C.10. It would also be good practice for the local authority to notify owners if it issues a repayment charge against their living accommodation.
How does a local authority serve notice?
s187 (1), (2)
C.11. Local authorities must serve notice in writing. This applies to any of the notices, orders or notifications which the table above sets out.
s187 (6)
C.12. This can include electronic means (such as e-mail), so long as it is legible and can be used for future reference.
When is a notice served?
s62 (2)
C.13. For documents relating to Chapters 6, the document is served on the day on which it is served on the owner of the house.
s187(3), (4), (5)
C.14. Any document is served on a person when it is either delivered or sent to, as the case may be:
(a) a person's place of business or usual or last known place of abode;
(b) the secretary, chief clerk or chief executive of an incorporated company or body at its registered or principal office; or
(c) the principal office of a public office-holder.
s187 (3)
C.15. If the notice is being issued by post it should be sent in a prepaid registered letter or by recorded delivery.
s187 (3)
C.16. The Act also deems a notice as being served if it was sent to the person in some other manner (including e-mail) which the sender reasonably considers likely to cause it to be delivered to the person on the same or next day.
s187 (7), (8)
C.17. If the notice is sent by some means other than by delivery or post, for example e-mail, the Act treats it as having been delivered on the next working day (ie excludes Saturday, Sunday or a bank holiday in Scotland) after the day on which it was sent. But it will not be treated in this way if the contrary is proved.
C.18. It would be good practice for the local authority to keep a record of such electronic correspondence.
s187 (9), (10)
C.19. If the local authority is not able to find out the name or address of the owner or occupier, it can address a copy of the notice to "The Owner" or "The Occupier" and display it on or near the premises.
When does a notice take effect?
s63 (1)
C.20. A document takes effect from the date on which it is served.
s63 (2)
C.21. The only exceptions to this in terms of Chapter 6 of the Act are where the recipients of notices appeal against the decision set out in the notice:
- to make a maintenance order; or
- to approve, devise, vary or revoke a maintenance plan.
C.22. Annex D contains more information on rights of appeal, and the effect of appealing a notice.