Housing Act 2004 – Tenancy deposit scheme – Assured shorthold tenancy – Respondent landlords failing to deal with deposit in accordance with authorised scheme or to provide prescribed information in that regard – Claim by appellant tenant for three times deposit as sanction under section 214(4) of 2004 Act – Deposit paid into scheme before hearing and subsequently repaid to appellant – Whether appellant entitled to three times deposit for continuing failure to provide prescribed information – Whether that requirement ceasing on repayment of deposit – Appeal allowed
In January 2009, the respondents let premises to the appellant on a six-month assured shorthold tenancy. The appellant paid a deposit of £500 but the respondents did not deal with it in accordance with an authorised deposit scheme, or provide the appellant with the prescribed information in that regard, contrary to section 213 of the Housing Act 2004.
In May 2009, the respondents served two notices to quit on the appellant but both were defective. The particulars of claim served in subsequent possession proceedings against the appellant were also defective because they relied on one of the defective notices. Meanwhile, in response to a letter sent on the appellant’s behalf, the respondents transferred her deposit to the Deposit Protection Service (DPS). Although the DPS sent some information to the appellant regarding her deposit, the respondents did not themselves provide her with the prescribed information.
The respondents’ possession proceedings were stayed pending the outcome of a claim by the appellant for damages of three times her deposit, under section 214(4) of the 2004 Act, as the sanction for their failure to protect the deposit in an authorised scheme within 14 days of receiving it or to provide the prescribed information. Before the hearing of that claim, the respondents returned the appellant’s deposit. The appellant’s claim was dismissed on the ground that, where the deposit had been lodged with the DPS before the commencement of her proceedings, the penal sanctions in section 214(4) did not apply.
The appellant appealed. She contended that she was still entitled to three times her deposit for the respondents’ breach of section 213(6)(a) by not providing the prescribed information. The respondents submitted that: (i) the requirements of section 213(6)(a) had ceased to apply once the deposit had been returned; and (ii) in any event, the information supplied to the appellant by the DPS complied with those requirements. They further asserted that the appellant’s tenancy had terminated prior to the hearing of her claim so as to bring the application of section 214 to an end.
Held: The appeal was allowed.
(1) A landlord’s obligations under sections 213 and 214 of the 2004 Act were twofold. The landlord’s obligation to provide the prescribed information was as important as its duty to safeguard the tenant’s deposit. The list of particulars to be provided was detailed and specific. That information allowed tenants to understand how the scheme worked and how they could seek the return of their deposit. The level of detail required, together with the sanction for non-compliance, demonstrated the importance attached to the giving of particulars certified by the landlord. Accordingly, when determining the extent of a landlord’s compliance with the provisions, the court should consider whether the prescribed information had been supplied to the tenant, in addition to the question of protection of the deposit. Since the objective of the legislation was to protect tenants’ deposits, not to punish landlords, a landlord had until the hearing of the relevant claim or counterclaim under section 214 to comply with its dual obligations: Vision Enterprises (t/a Universal Estates) v Tiensia [2010] EWCA Civ 1224; [2010] 3 EGLR 53; [2010] 49 EG 80 applied. However, the repayment of the deposit before the hearing was not sufficient for that purpose. Once a deposit had been paid, the obligation to provide the prescribed information continued irrespective of the return of the deposit: Potts v Densley [2011] EWHC 1144 (QB); [2011] 19 EG 97 (CS) applied. The judge had erred in failing to address the issue of the prescribed information despite that matter being pleaded specifically in the appellant’s particulars of claim.
(2) The obligation to provide the prescribed information, under section 213(5) and 213(6)(a), was that of the landlord personally. The provision of information to the tenant by the DPS did not amount to compliance by the landlord with its obligations under those provisions. It was not information that the landlord had personally certified as being accurate. Moreover, the information that the DPS had provided to the appellant did not contain all the required particulars.
(3) Section 214(4) had not ceased to apply by the hearing date by reason of the termination of the appellant’s tenancy. There was no evidence to show that she had surrendered the tenancy. The respondents’ claim for possession remained outstanding and, in any event, relied on a defective notice to quit. In those circumstances, the tenancy had not been lawfully determined as at the date of the hearing: Hashemi v Gladehurst Properties Ltd [2011] EWCA Civ 604; [2011] 29 EG 80 distinguished.
Simon Butler (instructed by Burke Niazi) appeared for the appellant; the respondents appeared in person.
Sally Dobson, barrister
