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This case was decided under the previous version of the rules before the changes made by the Localism Act 2011 took effect. However, this decision still applies to the information that must be provided to a tenant by the landlord (the prescribed information).
The judgment of Ayannuga v Swindells (2012) CA (Civ) 6 is available here.
On 6 September 2010, the landlord let a property to the tenant on an assured shorthold tenancy for a 12-month term. The rent was £950.00 per calendar month, and the tenant paid a deposit of £950.00. The Deposit Protection Service custodial scheme protected the deposit.
After issuing a section 8 notice, the landlord commenced possession proceedings in the county court based on rent arrears under grounds 8, 10 and 11. The tenant defended and counterclaimed on several items, which included seeking a sum equal to three times the amount of deposit, namely £2,850 plus the return of the deposit for a failure to provide the prescribed information as required by Section 213(5) Housing Act 2004.
The essential information which must be provided is that contained in The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 In the landlord's reply and defence to the counterclaim. The landlord denied the breach of the prescribed information order pointing to the information contained in the tenancy agreement and in a letter he gave the tenant dated 8 September 2010.
The trial considering possession and the counterclaim commenced on 13 March 2012 and took three days.
On 15 March 2012, immediately after the lunch adjournment and just before the Deputy District Judge gave his judgment, the landlord provided the tenant with a handwritten document giving additional information about the deposit (“the Additional Information Document”). The Deputy District Judge held that:
… the lease coupled with this additional document gives the information substantially to the same effect, and on that basis, in my judgment, the claimant has complied with his obligations.
The tenant appealed.
From the judgment, presumably, it was accepted that the landlord had provided a good proportion of the prescribed information in the Additional Information Document.
However, what was in dispute were four items contained within the order, 2(1)(c) - (f). The landlord accepted that the following provisions of the prescribed information order were not complied with:
2(1)(e) the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
and
2(1)(f) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation;
But, the landlord contended that the tenancy agreement sufficiently set out the details of what should happen about the return of the deposit at the end of the tenancy and in the event of any outstanding claims for disrepair or rent arrears or such.
He pointed out that there was also a reference in the Additional Information Document to the right or ability of the appellant to contact the respondent for the release of the deposit after the expiry of the tenancy or to contact the estate agent for the same purpose. This, he contended, covered the requirements of (c) and (d), namely:
2(1)(c) the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy (“the tenancy”);
and
2(1)(d) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;
The landlord pressed the point that the matters in which there was a deficiency in complying with the prescribed information order concerned procedural issues, leaving the tenant in no serious or disadvantaged position.
The landlord emphasised that the overriding purpose of the legislation is to protect the tenant’s deposit and that the tenant could have easily ascertained any further information by simply contacting the DPS custodial scheme.
Accordingly, the landlord submitted that the tenant suffered no actual prejudice in the present case. He submitted that there had been substantial compliance with the statutory requirement for providing information.
The Court of Appeal held (para 26):
… there was a failure to comply with each of paragraphs (c), (d), (e) and (f) of the Housing Order. It is true that the Tenancy Agreement and the Additional Information Document addressed the procedure that was to apply if and when the tenancy came to an end and the deposit had to be returned, taking into account any outstanding liabilities to the respondent. It is clear from those provisions in the Tenancy Agreement, however, that they do not address, as is required under paragraphs 2(1)(c) and (d) of the Housing Order, the procedural provisions in the scheme itself. … What is required, therefore, to be provided under the Housing Order, but has not been provided in this case, is information relating to the scheme’s procedures for the return of the deposit in the circumstances specified in paragraphs 2(1)(c) and (d) of the Housing Order.
The Court also held that it was no answer to assert that the information could have been obtained by the tenant making her own enquiries by contacting the scheme (para 27):
Section 213(5) of the 2004 Act requires the information to be provided by the landlord.
This principle was also confirmed in Kahlon v Isherwood [2011] EWCA Civ 602, in which Patten LJ said (in paragraph 21):
Relevance or materiality has to be assessed by reference to the purpose of the notice. But where the provision in the prescribed form is clearly part of the substance of the notice as found in Manel v Memon it is no answer to its omission to say that the information it conveys was well known to the tenant at the relevant time.
The Court clarified that compliance with the prescribed information was essential and not merely procedural (para 28):
All the matters specified in (c), (d), (e) and (f) are of real importance to a tenant. They define the circumstances in which the tenant can recover the deposit and also the means by which disputes in relation to the deposit and its repayment can be resolved, including resolution without recourse to litigation.
Section 213(6)(a) provides that the prescribed information given to the tenant by the landlord must be: (highlights added)
in the prescribed form or in a form substantially to the same effect
The landlord, in this case, had submitted that the information he had supplied was substantially to the same effect (and the tenant suffered no prejudice). In response to this, the Court of Appeal pointed to Ravenseft Properties Limited v Hall [2001] EWCA Civ 2034, which was a case about whether a notice under section 20 of the Housing Act 1988 gave notice that the tenancy was about to be entered into was an assured tenancy was “substantially to the same effect” as that prescribed to which Mummery LJ said :
“11… In my judgment, however, a detailed analysis of each decision is not a profitable exercise: the question whether a notice under section 20 is in the prescribed form or is in a form “substantially to the same effect” is a question of fact and degree in each case, turning on a comparison between the prescribed form in Annex 1 and the particular form of notice given…."
“27… The question is simply whether, notwithstanding any errors and omissions, the notice is ‘substantially to the same effect’ in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy."
The Court of Appeal said again that the categories of information in paragraphs 2(1) (c) to (f) of the prescribed information order were essential and of real significance to the tenant, and therefore, in this case, the prescribed information provided was not substantially to the same effect. The view expressed by Cox J in Suurpere v Nice [2011] EWHC 2003, [2011] 39 EG 110 was endorsed (para 41):
” Although the primary focus in the cases involving these statutory provisions has so far been on the deposit, it is clear that a landlord’s obligations under this part of the 2004 Act are twofold. Parliament regards the landlord’s obligation to provide the prescribed information as being of equal importance to his duty to safeguard the tenant’s deposit. Judges who have to determine the extent of a landlord’s compliance with these provisions will always need to consider whether the prescribed information has been supplied to the tenant, in addition to the question of protection of the deposit. The list of particulars to be provided is detailed and specific. The requirement for landlords to provide such detailed information, together with the sanction for non-compliance, demonstrate the importance attached to the giving of particulars, certified as accurate by the landlord, which will enable tenants to understand how the scheme works and how they may seek the return of their deposit."