As noted by Tessa at Landlord Law, the current (January 09) Legal Action housing updates includes a tenancy deposit case which further muddies the waters.
Ferguson v Jones, Birmingham County Court 5 Nov 2008 concerned an assured shorthold tenancy. Ms Jones had paid a deposit of £500, which was not put into a scheme within the initial 14 days. In fact it was not put into a scheme by the landlord until after the landlord had brought a possession claim (presumably not on a s.21 notice) and Ms Jones had counterclaimed for disrepair and for the three time the value of the deposit under s214(2) and (3) HA 2004.
DJ Sheldrake held that the court had no discretion under s.214(4) and had to order the payment. The provision requiring the deposit to be protected within 14 days of receipt would be otiose if the landlord could escape the penalty by later compliance. That they should not was clearly parliament’s intention.
This is a County Court judgment, as have been all the reported cases so far, so there is no binding precedent on the matter. This judgment does run against the tide of the recent decisions, particularly Harvey v Bamforth, but it does make clear that, rather disappointingly for all concerned, whether late compliance will cause a claim to fail is a complete lottery at present (except presumably in Sheffield, where I would imagine HHJ Bullimore’s view is followed by the District Judges).
Anyone advising on a claim will just have to advise on the risk that late compliance may, or may not, defeat the claim. Tenants acting in person – surely the large majority in such cases, or indeed landlords, are not going to have any certainty at all. Someone take this to a higher court, please.
[For all tenancy deposit case posts click here]
Surely all the decisions where District Judges take it upon themselves to decide that the law would be pointless without including the requirment to protect within 14 days is to fall into the trap that Lord Denning did in Magor and St Mellons Rural District Council v Newport Corporation which the Lords heavily criticised.
To quote Denning’s offending passage “We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”
The Lords could not accept this and roundly criticised the viewpoint expressed by Denning. Lord Simonds clearly stated the correct solution when he said “If a gap is disclosed, the remedy lies in an amending Act”
Painsmith,
I’m not sure that this is what the DJs think they are doing. There is an argument, which others have rehearsed in comments on this blog, that ‘compliance’ includes s.213(6)(a) and (b) as they are so closely connected. This was the argument rejected by HHJ Bullimore in Harvey v Bamforth, but I don’t think it could be described as a Denning style of filling in the gaping lacunae in an Act – perhaps calling it a lightly purposive interpretation would be more accurate.
Personally, I can all too easily see the argument both ways. As a matter of textural construction of the specific paras, I can see the Bullimore argument, but in the broader context of the Act and some, but not all, of the associated (non-binding) guidance, the strict compliance argument makes sense.
It needs a higher court judgment and soon