Assured shorthold tenancy – Housing Act 2004 – Tenancy deposit scheme – Claim by appellant tenant for return of deposit plus three times that amount under section 214 of 2004 Act for failure to comply with statutory requirements regarding provision of information about tenancy deposit scheme – Omission of information about return of deposit under scheme and dispute resolution procedures under para 2(c) to (f) of Housing (Tenancy Deposits) (Prescribed Information) Order 2007 – Respondent held to have substantially complied with requirements – Appeal allowed
The respondent was the landlord and the appellant was the tenant under an assured shorthold tenancy of a residential property at a rent of £950 per month. The appellant had paid a deposit of £950 on signing the tenancy agreement and the respondent had paid this into an authorised “custodian”-type tenancy deposit scheme under the Housing Act 2004.
In May 2011, the respondent brought a claim against the appellant for possession of the property on the ground of rent arrears. The appellant counterclaimed under section 214 of 2004 Act for the return of her deposit, plus a sum three times that amount, as the sanction for an alleged failure by the respondent to comply with the requirements of section 213 and the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 as to the provision of information to tenants on the protection of their deposit in an authorised deposit scheme.
At trial, the judge advised that, in accordance with Vision Enterprises Ltd v Tiensia [2010] EWCA Civ 1224; [2010] 3 EGLR 53; [2010] 49 EG 80 the respondent could correct his non-compliance at any point before judgment was given. The respondent then supplied a document confirming that the deposit had been paid into an authorised scheme and giving the scheme contact details plus those of himself and his agent.
The judge concluded that the information in the new document, together with the information in the tenancy agreement regarding the circumstances in which the deposit would be returned and what would happen to it in the event of a breach, was “substantially to the same effect” as the required information, notwithstanding the continued omission of the information prescribed by para 2(e) and (f) of the 2007 Order concerning dispute resolution procedures. He took the view that the omitted information was purely procedural in nature and that the appellant could easily find out the relevant details by contacting the scheme administrator. The section 214 counterclaim was dismissed accordingly. The possession claim was also dismissed. The appellant appealed on the section 214 issue.
Held: The appeal was allowed.
Although it was a matter of fact and degree whether there had been substantial compliance with the information requirements, the judge’s finding on that matter fell outside the proper exercise of judicial judgment and evaluation: Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034; [2002] HLR 33; [2002] 1 EGLR 9; [2002] 11 EG 156 considered. There had been no compliance with the requirements of para 2(c) to 2(f) of the 2007 Order. Although the tenancy agreement and additional information addressed the procedure to be applied under that tenancy for the return of the deposit in the event that the tenancy came to an end, it did not address the procedural provisions in the deposit scheme itself, as required by para 2(c) and (d). The relevant provisions in the tenancy agreement were based on the hypothesis that the landlord’s agent had retained the deposit as stakeholder, such that the landlord could decide what to do with it. In fact, the deposit had been paid to the trustee of a custodian scheme, so the appellant needed to be given information as to the procedures of that scheme for the return of the deposit.
As to the information prescribed by para 2(e) and (f), the provision of that information was not a mere matter of procedure that was somehow subsidiary to the other requirements of the Act. All the statutory requirements were of real importance to tenants: Suurpere v Nice [2011] EWHC 2003 (QB); [2012] 3 EGLR 19; [2011] 39 EG 110 applied. The purpose of those requirements was two-fold, requiring both the payment of the deposit into a scheme and the provision of the relevant information. The provision of the prescribed information was as important as the safeguarding of the deposit in a scheme. No distinction could be made in that regard as to information about merely procedural matters and other information, since the statute specified that all of the information had to be given. The information about how to resolve disputes without recourse to litigation was part of the substance of the statutory scheme. The only proper conclusion was that there had been no substantial compliance with the statutory requirements owing to the respondent’s failure to provide the information prescribed by para 2(c) to (f). The fact that the appellant might be able to obtain the information by other means did not alter that conclusion since it was the duty of the landlord to provide that information: Kahlon v Isherwood [2011] EWCA Civ 602; [2011] 2 EGLR 23; [2011] 28 EG 76 considered.
David Watkinson (instructed by Hereward & Foster) appeared for the appellant; David Gibson Lee (instructed by Abbey & Nat) appeared for the respondent.
Sally Dobson, barrister
