Ayannuga v Swindells (2012) CA (Civ) 6 November 2012. On Lawtel but not on BAILII yet.
The Court of Appeal has recently ruled on a tenancy deposit protection case regarding the issue of prescribed information. Here T had paid a deposit and L had protected it in one of the approved schemes but he had not given the prescribed information as required by the Housing (Tenancy Deposits)(Prescribed Information) Order 2007. T allegedly fell into rent arrears and L sought possession. T counter-claimed on the basis of lack of compliance with the Prescribed Information Order. L admitted non-compliance with the Order but argued that the requirement was largely procedural, that the purpose of the legislation was to protect deposits (which had been done) and that T could have found out all he wanted to know from the scheme administrator. The lower Court dismissed T’s claim holding that information in the tenancy agreement coupled with the further information provided by L during the hearing was enough to comply with the requirements of the Order.
T appealed. A very heavyweight Court of Appeal (Etherton LJ, Lewison LJ) disagreed entirely with L and the lower Court. It held that the information requirement was not merely a minor procedural one. They were of real importance as they told tenants how they could seek to recover their money and how they could dispute deductions without litigation. The Court of Appeal upheld the decision of the High Court on this issue in Suurpere v Nice (our report here). The lower Court had acted outside the bounds of proper judicial evaluation. L was clearly in violation of the order and the penal;ites of s214, Housing Act 2004 applied. Therefore L was ordered to return the deposit plus a penalty equivalent to three times the deposit.
The Court of Appeal has done a couple of important things here:
- It has upheld the view of the High Court from Suurpere. The Prescribed Information is not a support to the main purpose of the legislation, protection of deposits. It is a key part of the two elements of the legislation. Mere protection without the information is simply not enough to discharge the landlord’s obligations. In addition, it confirms that landlords must supply that information themselves not leave tenants to go on a hunt to work it out themselves.
- Where there is argument about whether the information the landlord has provided is sufficient then the test is as set out by the Court of Appeal in Ravenseft Properties v Hall. That is (with paraphrasing):
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
their rights and the procedures operated by the relevant tenancy deposit scheme for recovering their money and contesting deductions.
The upshot is that the Prescribed Information really does matter and landlords need to ensure they have it right. Tenants now have a clear additional means of defending possession actions based on s21, Housing Act 1988 or on rent arrears. While some landlords will be annoyed by this decision it is really the only proper course. Parliament must have intended that the Prescribed Information was of importance because they went to the trouble of setting out in some detail what it had to say. If you also consider that one purpose of the schemes was to remove deposit litigation from the small claims track in the county court then the importance of tenants knowing how to contest deductions without using he court system is obvious.