No Gas Safety Record Before Occupation and Section 21

To serve a section 21 notice, specific "prescribed requirements" must have been complied with first. One of those is under gas safety rules: 

• the landlord must give a copy of the last record made to any new tenant of premises before that tenant occupies those premises.
• after that, the landlord must give the tenant a copy of each record every 12 months within 28 days.

To serve section 21, the 28 days to provide the record is ignored, which means you can give the record(s) late. 

In Trecarrell House Ltd v Rouncefield (2020) EWCA Civ 760, the court of appeal held that where there was an active gas safety record before occupation but wasn't given to the tenant, that record could nevertheless be provided late as long as before (or at the time) of serving notice. 

The notice is valid as long as you supplied the first gas safety before the tenant occupied and the most recent gas safety record before serving section 21. 

However, this left the question about what if there was no active gas safety record before the tenant occupied? The record doesn't exist and, as such, can't be given late. 

The county court on appeal has considered this question in Byrne v Harwood-Delgardo. Luton County Court. 21 June 2022. The court held that the landlord could not serve a section 21 notice in that case. At paragraph 40, HHJ Bloom stated:

The sanction for failure to comply at all is draconian. However, this sanction appears to only apply where there is no GSR at all prior to moving in. By reference to Trecarrell House and Patten LJ's views at paragraph 35 it would not appear that to meet the prescribed requirements, the GSR under paragraph 6(b) would have to be completed 12 months before the letting or within 12 months of installation as the issue is rather that there is a record created that is the last one before the new tenancy. The important factor is that a GSR has been created prior to the tenancy commencing. Why should there not be a draconian sanction where there is no GSR at all prior to the tenant moving in? That is not an administrative oversight but a serious failure to comply with substantive requirements that have a criminal sanction but also exist to ensure as a matter of fact that properties are safe. I agree with Ms Sergides that, as was said in Trecarrell House, one can distinguish between the situation where the landlord has made a trivial error and failed to serve a document and the situation where the landlord has failed to obtain any safety checks for the gas installations. It is not whether the tenant knows the property is safe but whether objectively the checks have been done so that it is safe. The prescribed requirements must have some meaning. The purpose of them is to provide tenants with protection as regards their health and safety whilst in occupation. How does S21A and Regulation 2 have any force if the GSR can be obtained at any time in the tenancy?