Can the Landlord be too early?
1. I recently represented the landlord in a protracted tenancy dispute in the County Court. After three hearings, a single issue remained to be decided: whether the landlord had satisfied the requirement of s.213(6) of the Housing Act 2004, in circumstances where the tenant contended that the prescribed information had been provided too early.
The statutory framework
2. Sections 213 and 214 of the Housing Act 2004 (as amended by the Localism Act 2011) provide requirements in respect of deposits paid in connection with shorthold tenancies, and penalties for non-compliance with those requirements. In particular, s.213(6) provides that prescribed information* must be given to the tenant:
a. in the prescribed form or in a form substantially to the same effect, and
b. within the period of 30 days beginning with the date on which the deposit is received by the landlord.
3. On the face of it this looks simple. Once the landlord receives the deposit, he or she has 30 days in which to give the tenant the prescribed information.
4. This requirement has teeth. Section 214(4) provides that where the court is satisfied that section 213(6) has not been complied with, the court must order the landlord to pay to the tenant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit. This is separate from the question of any return of the deposit itself.
5. The leading case on the operation of the regime is Ayannuga v Swindells  EWCA Civ 1789, where Etherton LJ endorsed the judgment of Cox J in Suurpere v Nice  EWHC 2003 (QB). However, the authorities deal with partial or late provision of information. It appears there is no authority where information was given before receipt of the deposit.
6. It was common ground that the deposit had been received and properly protected by the landlord. It was also common ground that the landlord had given all of the prescribed information to the tenant. However, part of the prescribed information, contained in a leaflet supplied also common ground that the landlord had given all of the prescribed information to the tenant. However, part of the prescribed information, contained in a leaflet supplied by the administrator of the deposit protection scheme, was given to the tenant the day before the deposit was received by the landlord. The information given after the deposit was received contained an express reference to the leaflet given the day before.
7. The tenant said that the landlord had not complied with the requirement in s.213(6) because time for provision of the prescribed information does not start to run until receipt of the deposit so that the giving of information the day before could not satisfy the requirement.
8. On behalf of the landlord I argued that:
a. The statute should be interpreted purposively such that prescribed information given prior to receipt of the deposit was capable satisfying s.213(6) as long as the statutory purpose was achieved. The statutory purpose is to “enable tenants to understand how the scheme works and how they may seek the return of their deposit.”2
b. Further or alternatively, the information given after receipt of the deposit incorporated (as a matter of construction) the leaflet given before receipt of the deposit, such that all of the prescribed information was “given” after receipt of the deposit.
9. The Court found for the landlord on the first argument and the tenant’s claim under s.214(4) was dismissed, so that the second argument was not considered.
10. Until there is reported authority on the point, the effect of early provision of information to tenants remains unclear.
11. It is suggested that landlords and their agents adopt a practice of giving tenants all of the prescribed information (whether or not previously supplied) after receipt of the deposit.