That was the week that was – deposits, provision of prescribed information, and Fergus Wilson

[update 22 Jan. The initial version of this post suggested that ARLA advice on providing the How to Rent Guide had been that a link was sufficient. I am very happy to be corrected on this – ARLA did not so advise and had themselves raised this issue in 2016. The post has been edited to remove the inaccuracy.]

There is a backlog of significant cases to be written up, I know. I have been a bit busy… But here are some snippets of interest that have come my way over the last week.

Fees for Tenancy Deposit Protection. It appears that some landlords have been writing into the tenancy agreements that the fee for deposit protection can be recovered from the tenant’s deposit at the end of the tenancy. I’ve now seen a deposit adjudication decision which, quite rightly, holds against this practice, stating:

Paragraph 18 of the Tenancy Agreement states that the Deposit protection fee is to be paid by the Tenant at the end of the tenancy however, I do not consider such a claim to be justified as the Landlord is under a legal obligation to protect the Tenant’s Deposit with a government authorised scheme at the outset of the tenancy and it would not be reasonable, or in keeping with the intention of the relevant legislation, to allow the Landlord to pass the cost of fulfilling this obligation onto the Tenant so, I cannot uphold this claim.

I hope this practice isn’t widespread. But any landlords doing this should stop. Tenants should take it to adjudication if they don’t.

I previously noted that MHCLG had updated the “How to Rent’ Booklet on 17 January 2018 (and why this was important). I was then contacted by someone to tell me I had missed an important change – that landlords or agents were no longer allowed just to send a link to the booklet by email, but now had to send a pdf. This surprised me, for reasons I’ll come back to in a moment.

But, on checking the previous versions of the ‘How to Rent’ Booklet, it did indeed turn out that the previous versions said

‘The landlord must provide you with a copy of this guide: How to rent: The checklist for renting in England either via a link or as a printed copy.’

While the new version says

‘The landlord must provide you with a copy of this guide: How to rent: The checklist for renting in England as a printed copy or, if you agree, via email as a PDF attachment.’

Why surprised? Well, the The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 state, at section 3 (so far as is relevant):

(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2)

(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.

(3) The information may be provided to the tenant—

(a) in hard copy; or

(b) where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.

The landlord must ‘give the tenant’ ‘the version of the document’. Not a means to find it – a link, say, but the document, provided by hard copy or email. Note that qualification on the use of email – an address at which the tenant is content to accept ‘service of notice and other documents’.

My view from 2015 onwards has been that this means a printed hardcopy or emailed pdf of the Booklet. It is a point that would be worth taking on a defence to s.21, frankly. So to find that the DCLG handbook itself got this wrong was startling. And no, before anyone asks, it would not be of any use to say you were relying on DCLG guidance. DCLG don’t get to say what the statute means, that is up to the courts.

Clearly (if quietly) DCLG/MHCLG have realised that they got this wrong and have changed it in the latest version, without actually saying anything publicly.

This does, of course, leave the question of whether a defence to a s.21 claim would be successful on the basis that only a link to the booklet was sent. If that is the case – and I can certainly see the argument – that would potentially be a lot of landlords who would be in a difficult position.

Lastly, in what has been an extraordinary but rather good week overall, you might have seen stories about Fergus Wilson (yes, that Fergus Wilson) bringing a claim against a youtube vlogger, Danny Hyde, for saying rude things about him. As a result of twitter doing its thing, I am pleased to say that I (or rather Anthony Gold), together with counsel, Gerard Clarke of Blackstone Chambers, are now acting pro bono for Danny Hyde.

There will be more on this when the case is done, but for now, our position is the claim as brought is completely hopeless and discloses no cause of action. (As an aside, it has also been brought by the wrong person). It appears to be an attempt to bully our client simply because he has said something that Fergus Wilson personally doesn’t like.

A pro bono costs order will be sought. There is a hearing on 31 January at Yeovil County Court.

A crowd funder for Danny Hyde has been launched by a friend of his. To be clear neither Gerard Clarke nor Anthony Gold will be seeking any fees from our client, but if it covered disbursements like travel costs and so on, that would be nice.

An unusual week…

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All.

4 Comments

  1. To add to your comment about the How to Rent Guide this also ties in with the revised N5B where you are required to state if you supplied the How to Rent Guide in hard copy of PDF.

  2. Charging for Protecting the Deposit when it is a legal requirement! I have heard it all now!

    Giles after your recent success with Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill and with your huge authority and influence, I trust you will suggest an amendment to the upcoming Tenants Fees Bill to explicitly ban charging tenants any fees to carry out a Landlord’s legal obligations, including protecting the deposit.

    https://www.gov.uk/government/publications/draft-tenants-fees-bill

    People complain about unscrupulous Landlords but where on earth could a landlord get such an idea?

    Well since 2015 from none other than TDS

    https://www.tenancydepositscheme.com/news/blog/offsetting-the-cost-of-deposit-protection-where-to-draw-the-line/

    It would be great Giles if you could quote here the case or list the bailii ref if appropriate.

    Maybe even reach out to TDS to suggest they change the advice on the site, apparently they have a debate on Linked In about it!

    What next, a charge for boiler repair & maintenance despite the legal obligations of Section 11 of the Landlord and Tenant Act 1985??

    • As far as I can see, it would be covered by the current draft tenant’s fees bill.

      As per the post, this was a deposit adjudication, so no case to quote.

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