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24/07/2021

How to Rent and Easy Read – updates and issues.

Ah, the How to Rent Guide. Is there anything that would so predictably cause problems and yet has been so frequently messed up by MHCLG?  The latest instalment of the saga goes like this.

On 21 July 2021, MHLCG updated the ‘How to Rent Guide’ page. But apparently this was not to update the existing ‘How to Rent Guide’ – I’ve checked and can’t see any difference – but rather to add an ‘Easy Read’ version. Both have been added to our How to Rent archive page, in case.

Easy Read is a style of document aimed for ease of comprehension by people with a range of learning difficulties. It is therefore, in principle, a good thing – particularly in the context of understanding tenancies.

However, this update presents issues – firstly in respect of the Guide’s status as a legally prescribed document. The correct version must be given to a tenant and if it is not, no section 21 notice can be served.

The problem is this. The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 identify as ‘prescribed information’ that must be provided:

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.

The trouble is that both the Guide and the Easy Read version are entitled “How to rent: the checklist for renting in England”. However, they are most certainly not the same document (more on that below).

So, the immediate problem that presents itself is does the Easy Read document count as the prescribed information for the purpose of the 2015 regs? If a landlord only gave the tenant the Easy Read document, would that be sufficient?

If not, would the landlord have to provide copies of both the HTR guide and the Easy Read version? Or could they only provide the HTR Guide and still be OK, even though the Easy Read version is arguably the most recently updated (21 July 2021) version of the document entitled “How to rent”?

Yes, I know this appears to be like holding a pin up for the purposes of counting angels on the head, but it matters. This is a statutorily prescribed document, on which depends a landlord’s ability to serve a section 21 notice. Therefore certainty about what it is is of paramount importance.

(Don’t forget that MHCLG once just changed the title of the document, then had to change it back in a hurry once it was pointed out that there was no ‘prescribed information’ any more. There were also a couple of ‘silent’ changes in 2019. They have form on carelessness here.)

For what it is worth, my view is that the non-easy read HTR guide should be provided to all tenants and that this should suffice for the 2015 Regulations. However, for anyone who requests or may need the Easy Read version, this should additionally be provided, given its existence, as a reasonable adjustment under Equality Act 2010. A failure to do so – now it exists – may amount to discrimination under the Equality Act. Providing the Easy Read version alone seems to me to be a high risk approach.

That said, given that currently the Easy Read version is the most recent version, a truly safe approach would be for the landlord to provide both at the same time.

(And what if the Easy Read version is not itself updated at the same time as the the next change to the HTR guide?)

Then secondly, what of the contents of the Easy Read version itself? I would be the very first to admit that putting landlord and tenant law, obligations and rights into an Easy Read format is a challenge, to put it mildly. However, I do think that any such document needs to have the key information that its readers would need to know to understand when and how their rights had been breached.

Sadly, I fear that the Easy Read version of the HTR guide falls short of that at points. For example, here is the Easy Read guide on papers the landlord must give you about the deposit:

Easy Read on deposits

The landlord must give you “paperwork to show you paid a deposit and they will keep the money safe.”

And here is the HTR guide version:

HTR on deposits

Deposit paperwork. If you have provided a deposit, the landlord must protect it in a government approved scheme within 30 days and provide you prescribed information about it. Make sure you get the official information from your landlord, and that you understand how to get your money back at the end of the tenancy. Keep this information safe as you will need it later.

Neither are exactly perfect (what ‘prescribed information’? No link) but the Easy Read is lacking the two elements particularly necessary for anyone to understand if there has been a breach – the 30 days requirement, and the ‘official information’ (from the deposit scheme). This leaves it as practically useless advice.

There are also issue with the structuring of the Easy Read – eg information on permitted and excluded payments under the Tenant Fees Act is there but separated by many other sections – that strike me as confusing and not a good approach, but those are best left to people with expertise in Easy Read.

Now if MHCLG had add a guide on when and how to use the Easy Read version, and its status, we wouldn’t be here – or at least not on the statutory validity point anyway. But they didn’t, they just chucked it up on the page without any thought. Once again, housing lawyers are scratching their heads and identifying the safest (if potentially unnecessary) course of action. Hopefully, once again, we will see a correction or clarification by MHCLG before long.

We might also hope that they have another go at the Easy Read version to make sure it has the necessary information in it.

 

 

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.

4 Comments

  1. Tom

    This has been a half-baked idea from day one – none of tenants I deal with care about it, have heard of it, read it and most drop it straight in the recycle box at the Check-In. The only benefit this has brought is for the Housing Options teams who now have a ‘gottcha’ for landlords who serve a S21 but had failed to serve the HTR Guide. If a tenant gets a S21 they don’t go rushing to their filing system looking for their HTR guide.

    Reply
  2. Ian Narbeth

    As if the Government couldn’t throw more obstacles in the path of landlords! Is there someone in Whitehall who just spends their days trying to trip up landlords? Giles, I wish you were correct “that the non-easy read HTR guide should be provided to all tenants and that this should suffice for the 2015 Regulation”. However, what landlord, knowing about this latest nonsense will risk it? The prudent course must be always and forever to serve both notices. It is an absolutely draconian penalty to throw out a landlord’s claim for possession over technicalities but it is the first port of call for Parliamentary draftsman. As Tom says most tenants don’t read the How to Rent. This will just provide more ammunition for tenants.

    The rigamarole is compounded by the fact that HTR is supposed to be served on “the tenant”, not on the prospective tenant (for whom it would be most useful) and so the prudent course is for a landlord to serve the Government’s missive just before serving a s21 notice and not to rely on having served it before the tenant moved in. A technical point I know, but one of the clearest distinctions in landlord and tenant law is between people who are and are not tenants. Until the tenancy is signed you are not a tenant.

    Your reference to the Equality Act throws up another trap for the hapless landlord. Will tenants’ advocates invite the judge to throw out the s21 application on the basis that the Landlord should have served the Easy Read version because the tenant (perhaps unknown to the landlord – and maybe even unknown to the tenant at the time the tenancy was signed) was discriminated against and ought to have been given the Easy Read because of some invisible disability? This may be another ambush defence for use at the door of the court or in front of the judge who will not be in a position to assess the tenant’s mental health and so may take the line of least resistance which is to stick it to the landlord and send him back to square one.

    Will this set a precedent for other official forms? Will commercial tenants need to receive an easy read warning notice before contracting out a lease or will easy read section 25 notices be required to bring a tenancy of business premises to an end? Will we have a two tier system of tenants who can have the adult version and those who must have the PG version of Government information?

    As to MHCLG clarifying this, I won’t hold my breath. I don’t see it happening before the next blue moon. The cynic in me thinks that it may suit certain landlord-hating MHCLG lawyers to lay this trail of confusion and cause trouble and expense for landlords. Giles, I am willing to bet you lunch at a London restaurant of your choice that the clarification (meaning that only the non easy read has to be served) will not be issued before June 30th 2022. Are we on?

    Reply
  3. possessionfrienduk

    and so your argument rightly continues Ian, – in respect of the Prescribed Information Regs, in that certain docs Must be served on a ‘ Tenant, before the tenancy begins ‘

    Reply
    • Giles Peaker

      The regs don’t actually say that. It might be a requirement of the Gas Safety Regs and the EPC Regs, but not of the Prescribed Information Regs – hence the Court of Appeal judgment in Trecarrell.

      Reply

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