Serving a Section 8 but tenant has paid part of the rent using deposit

Not having had experience with evicting a tenant I would really appreciate some advice – 

Briefly, I have a tenant who missed his £700pm rent payment in December 2015 – when (eventually) I made contact with him, he said he was leaving the flat at the end of the month and I should take the money out of his £1,000 deposit – I told him that I would need him to sign something to that effect. He signed a note to say I could deduct money for the period 1 Dec to 1 Jan ’16 (£700).

He did not move out when he said. After a face to face meeting again, he promised to move out after a week which he didn’t. Then it was the following week etc. etc.

He paid £400 direct into our bank account in January, still promising to move out. In fact, he allowed a couple of viewings to go ahead on Saturday 23rd January so we could re-let the property – we agreed with one of the couples that they could move in on 6 Feb (today!) – the agent credit checked and referenced them etc. and we were ready to go.

On Saturday 30th January, my husband called him to check all was well and to find out what time he was leaving to arrange the key handover etc. The tenant told him he was not moving out afterall and we would have to take him to court to get him out then hung up. We have had no contact with him since then – we don’t want to be accused of harassment.

The new tenants had to be told they couldn’t move in.

On Monday we contacted Landlord Action and they were going to serve a Section 8 and a Section 21 for us. We have completed all the paperwork and given them copies of the AST, rent deposit registration (TDS).

Landlord Action have now said we should only serve a Sec 21 as he’s not 2 months in arrears – he did not pay his rent on Monday 1st February either.

I am wondering therefore how arrears are worked out – if a tenant pays only part of a monthly rent for 2 months – is he in fact 2 months in arrears or not? Do we have to wait until the arrears total £1,400 regardless of how long that takes to accumulate?

Also, would our case be stronger as he gave notice and then didn’t actually go? Landlord Action have said potentially a court could rule in his favour and we might have to pay thousands of pounds. I am sure this is their standard stuff to say but why on earth would a court rule in his favour? The flat is immaculate and we have never had any complaints from him about anything.

He signed his tenancy agreement on 1 May 2015.

The gas safety certificate is due soon too!

Help please!

Thank in advance.

Sally

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