Prescribed Information Litigation

Where a deposit is paid in respect of an assured shorthold tenancy, the landlord (or any person acting on their behalf) must arrange for it to be protected in accordance with an authorised scheme. The landlord must also give the tenant prescribed information (e.g. details of the circumstances in which some or all of the deposit may be retained by the landlord). The prescribed information must be accompanied by a certificate, signed by the landlord, confirming the accuracy of the information. A failure to provide the prescribed information or confirmatory certificate may result in the tenant obtaining an order that the landlord pay damages in a sum not less than the deposit paid and not more than three times the amount of the deposit.

The nuance of this requirement have been tested in the case of Lowe v Governors of Sutton’s Hospital in Charterhouse [2024] EWHC 646 (Ch). In 2010, Mr Lowe was the assured shorthold tenant of the defendant landlord. He paid a deposit in connection with the letting. That deposit was placed in an authorised tenancy deposit scheme and the landlord provided Mr Lowe with the prescribed information. There was an error in the information in that it cross-referred to the wrong clause of the tenancy agreement as identifying the circumstances in which the deposit could be retained (in whole or part). The certificate was not signed by the landlord but the covering letter was. Mr Lowe lived at the property for many years, during which time there were eight separate (but consecutive) tenancies. The landlord did not provide fresh information about the deposit with each tenancy but relied on the information provided at the outset.

Mr Lowe contended that the erroneous cross-reference and/or the failure to sign the certificate meant that the landlord had not complied with the requirements. Moreover, he contended that the obligation to provide the prescribed information arose afresh with each of the eight tenancy agreements, so that he was entitled to eight sets of statutory damages. The landlord denied that there had been any breach of any obligation; if that was wrong, then the landlord contended that the limitation period for a claim under the 2004 Act was six years, which would mean that only one claim was “in time”. The trial judge found for the landlord on all points.

The High Court dismissed an appeal by the tenant. The cross-reference error was obvious and any reasonable reader would have realised what the correct reference should have been. Whilst the certificate was not signed by the landlord, the covering letter had been and, when those documents were read together, it was clear that the landlord was affirming that the information in the certificate was accurate. No purpose was served by requiring a landlord to provide further copies of the certificate with each subsequent tenancy. Finally, any damages awarded for a breach were monies recoverable by virtue of an enactment, and so subject to a six year limitation period (s.9, Limitation Act 1980).

Oliver Kew

Published on 17/04/2024