This case has already been reported elsewhere. However we have now seen a detailed transcript of the Court of Appeal’s judgement which has not previously been available.
In this case the landlord had protected the deposit with the DPS scheme but it seems that he had not provided the tenant with all of the prescribed information. Before the Court of Appeal he admitted a failure to comply with paragraphs 2(1)(e) and (f) of the Housing (Tenancy Deposits) Prescribed Information Order 2007. These require that the tenant is provided with:
- the scheme procedures that apply when the landlord and tenant dispute the amount to be repaid to the tenant from the deposit; and
- the facilities available under the scheme for dealing with a dispute without litigation;
In the DPS scheme this information is provided in the scheme’s terms and conditions which must be downloaded from their website and given to the tenant.The landlord was adamant however that he had complied with paragraphs (c) and (d) which require that the tenant is advised of:
- the scheme procedures that apply under which monies may be repaid to the tenant at the end of the tenancy; and
- the procedures that apply under the scheme where the landlord or tenant cannot be contacted;
It was argued for the landlord that the tenancy agreement itself complied with paragraphs c and d and that paragraphs e and f were mere matters of procedure and that a failure to comply with them by a landlord did not really place a tenant at any serious disadvantage. The purpose of the legislation was to ensure the protection of tenants deposits and this had occurred.
The Court rejected all these arguments and found that the landlord was in breach of all four paragraphs, c to f. In respect of paragraphs c and d the Court found that the tenancy agreement, while it addressed the return of the deposit was not compliant because it made no mention of the procedures under the scheme. In respect of paragraphs e and f the Court acknowledged the landlord’s admission that they had not been complied with but took the view that they were far more than mere matters of procedure. I was not sufficient to assert that a tenant could find this information out for himself the legislation specifically required that the landlord provide the tenant with the information. Additionally the purpose of the legislation was more than the mere protection of a deposit. It was also to facilitate the resolution of disputes concerning those deposits.
As the landlord had not provided the information he was liable to the penalty. The original case was heard in mid-2011 so the variable penalties introduced by the Localism Act 2011 did not apply here.
It must be remembered that all the approved deposit protection schemes require the tenant with some form of leaflet or other prepared material detailing how that scheme operates. This must be provided. It is not enough to mention the scheme in the tenancy agreement and let the tenant make their own investigations online. It is likely that there are a lot of landlords who have failed to provide all the information required, particularly in the DPS scheme.