Prescribed (Mis)Information? The case of Lowe v The Governors of Sutton’s Hospital in Charterhouse [2024] EWHC 646 (Ch)

What is Prescribed Information?

From 6th April 2007 onwards, landlords (and/or their agents) who have received a deposit in relation to an assured shorthold tenancy have been required to provide their tenants with certain information relating to that deposit. ?

This is known as ‘prescribed information’, and the details which should be given to the tenant are set out within The Housing (Tenancy Deposits) (Prescribed Information) Order 2007. Section 213 (6) of the Housing Act 2004 clarifies that the information may be given ‘in the prescribed form or in a form substantially to the same effect’.

The prescribed information includes (but is not limited to) giving ‘[particulars of] the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy’, which can usually be satisfied by signposting the tenant to any relevant clauses of the tenancy agreement.

The information should also incorporate ‘confirmation (in the form of a certificate signed by the landlord) that the information he provides….is accurate to the best of his knowledge and belief’.

The consequences of failing to serve the prescribed information are two-fold:

(1)? The landlord will be unable to serve a valid notice seeking possession under section 21 of the Housing Act 1988 unless and until the failure is rectified (or the deposit is returned); and/or

?(2)? The tenant could make a claim for monetary compensation if the prescribed information was not provided within 30 days of the deposit being received (prior to April 2012 the time limit was 14 days). ?

It is clear that a complete failure to provide the prescribed information can have troubling implications for a landlord, but questions may arise when the landlord (and/or their agent) attempts to provide the information but this is found to contain errors or omissions. Will any mistake, however minor, be sufficient to trigger these outcomes?

Such a question arose within the recent case of Lowe v The Governors of Sutton’s Hospital in Charterhouse.

The Facts of the Case

When addressing the circumstances whereby the deposit may be retained by the landlord, the prescribed information given in Lowe had erroneously referred the tenant to clause 6 of their tenancy agreement, which did not exist. The correct clause would have been clause 5.3 (headed ‘Deposit’).

The prescribed information had also not been signed by the landlord (and/or their agent) within the appropriate signature blocks included in the document, but it had been attached to a signed cover letter.

The tenant argued that the information provided to him had been deficient, and he sought compensation. This claim was initially unsuccessful in the County Court, and it was appealed to the High Court, where the matter came before Mr Justice Johnson. ?

The Judge’s Comments

The Judge at first instance had noted that ‘the starting point is that a statutory notice is to be interpreted as it would be understood by "a reasonable recipient reading it in context"’. It was decided that ‘a reasonable person in the position of [the tenant] would have appreciated that the Prescribed Information… contained an error and obviously so…. The same reasonable person would have understood what meaning the… Document was in fact intended to convey, which was to say that the required information [about retaining the deposit] could be found in a corresponding term in the tenancy agreement’.

This reasoning was affirmed on appeal, with Mr Justice Johnson noting that ‘[the statutory] purpose was achieved here, because on a proper construction of the Prescribed Information…the tenant was told, you can find those rights spelled out in ….your tenancy agreement’.

Taken together, the signed covering letter and the attached prescribed information were also confirmed by Mr Justice Johnson to be "substantially to the same effect" as a signed prescribed information certificate.

The appeal was dismissed.

Conclusion

This decision is likely to be of some comfort to landlords, as it illustrates that the Courts may be willing to take a nuanced approach to minor errors within prescribed information. It is not the case that every discrepancy will automatically invite sanctions.

However, to minimise risk and uncertainty, it is important to ensure that care is taken to get the prescribed information right at the outset. If you are a private landlord in need of assistance, please contact [email protected].?

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