Ameera Macintyre v Cowdray Trust Limited and Rathbones Trust Company Limited (2025) EWCC 54
A County Court appeal to a Circuit Judge from a first instance decision on a possession claim based on a section 21 notice (after previous s.21 proceedings were discontinued because the landlord had not served the How to Rent guide. This may be a clue as to what follows.)
The primary issue was whether the deposit prescribed information had been properly provided. At the start of the tenancy, the deposit had been protected with ‘mydeposits’ and the prescribed information provided in time. At some point after the tenancy had become a statutory periodic, the deposit was moved from ‘mydeposits’ to the TDS custodial scheme, and what was asserted to be the prescribed information provided.
However, the tenant had, some years before, told the landlord to use a different email address for her:
My email has changed to (new address). I would be grateful if you could send the rent demands to that address in future as I cannot receive emails to this one”.
The second lot of prescribed information used the tenant’s original email address.
At first instance, the District Judge had held that
i) the duty to provide the prescribed information under s.213 only applied when the deposit was received, and not if the deposit was subsequently transferred. So a possession order was made.
ii) In case that was wrong, the use of the tenant’s original email address could not be considered to be ‘substantially to the same effect’ as the second email address.
The tenant appealed. The landlord cross appealed.
The Circuit Judge held
On i) the tranfer of the deposit did give rise to a fresh obligation to provide the prescribed information.
a vital component of that overall purpose (and of equal importance – see Cox J in Suurpere v Nice (2011) EWHC 2003 (QB)) is ensuring that the tenant is provided with the information necessary to know where their deposit is held, how it is held and how to get it back at the end of the tenancy. This is manifest from the Act itself and from Article 2 of the Order.
With this in mind, it would on the face of it be an absurdity if a landlord could achieve nominal compliance with Section 213(5) by sending the information relating to scheme A within 30 days and then immediately thereafter switch the deposit to scheme B without informing the tenant. The tenant would in these circumstances be left back in precisely the position that the legislation is intended to avoid. That this is plainly not the intention of Parliament is in my judgment demonstrated by the wording of Section 215B(1)(f).
In my judgment, Mr McLeish is correct to argue that there is an important difference in wording between Sections 213(3) and (5). It cannot realistically be doubted that Section 213(5), read in isolation, is capable of giving rise to a continuing obligation to provide information relating to the authorised scheme applying from time to time.
Appeal allowed.
However, on ii), while the point of the tenant’s email on change of email address was clearly a change for all purposes, not just rent demands, the District Judge had been wrong to consider ‘substantially to the same effect’ solely in regard to the email address rather than the prescribed information that was given as a whole. The tenant’s phone number was correctly given.
It is important to stand back and take account of the fact that this information is being supplied to the tenant. The information required by Articles 2(1)(a) – (f) is information which the tenant will not necessarily have knowledge of. The information required by Article 2(1)(g) will (or should) all be within the knowledge of the tenant already. The purpose of this information is not to tell the tenant something she already knows. It is to enable the tenant to check that the information provided to the scheme provider is correct (see Lowe). The purpose of the information relating to the tenant is as stated in Article 2(1)(g)(iv) itself.
The information given, overall, was to substantially the same effect. Cross appeal allowed.
The upshot was that the possession order stood.
Comment
On the transfer of deposit point, this clearly has to be right. The deposit had been unprotected, received again as an unprotected deposit by the landlord, and protected in a different scheme – and so the requirements of s.213 are freshly engaged. (I would say this, having belaboured exactly this point with a spectacularly dim firm of managing agents, who thought providing the PI only applied once even though the deposit amount had changed – Tenant Fees Act – and it had been moved to a different scheme.)
On the tenant email address, this is trickier and will be a question of fact and degree. Here, the landlord was effectively saved by the tenant’s phone number being right, so that the purpose of having post tenancy contact point with the tenant could be achieved (the tenant address at the property being useless in that regard).
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