Ayannuga v Swindells

A landlord’s statutory duty to provide prescribed tenancy-deposit information requires substantial compliance. The question is one of fact and degree, assessed by comparing the information supplied with the prescribed information and considering the statutory purpose.

Information about the scheme’s procedures for repayment, disputes and dispute resolution is substantive, not merely procedural. In a custodial scheme, contractual terms assuming that the landlord or agent holds the deposit do not provide the required scheme information. The tenant’s ability to discover the information independently, or actual knowledge of it, does not cure the landlord’s omission.

The landlord let a property under an assured shorthold tenancy and received a £950 deposit, which was paid into a custodial tenancy-deposit scheme. In possession proceedings, the tenant counterclaimed under the Housing Act 2004 for repayment of the deposit and a sum equal to three times its amount, alleging failure to provide prescribed information.

The Woolwich County Court held that the tenancy agreement and an additional document substantially complied with the statutory requirements. On appeal, the central issue was whether the landlord had complied with the duty under sections 213(5) and (6) of the Housing Act 2004 and the Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

Appeal allowed. The Court of Appeal held that the lower court’s conclusion was outside a proper exercise of judicial judgment and evaluation.

1. The applicable test was whether there had been substantial compliance with the prescribed-information requirement. As established in Ravenseft Properties Limited v Hall [2001] EWCA Civ 2034, this is a question of fact and degree. The court must compare the prescribed information with the information actually supplied and consider whether the statutory purpose has substantially been achieved.
2. The purpose of a tenancy-deposit scheme under the Housing Act 2004 is twofold: safeguarding the deposit and facilitating resolution of disputes. The information required by paragraphs 2(1)(c) to (f) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 was therefore substantive and of real importance. The court endorsed Suurpere v Nice [2011] EWHC 2003 on the equal importance of the information duty.
3. The tenancy agreement and additional document did not explain the procedures under the custodial scheme. They assumed that the deposit was held by the landlord’s agent as stakeholder, whereas it had been paid to the scheme administrator. The required information therefore had to concern the scheme’s own procedures for repayment and for dealing with an uncontactable party, a dispute, and dispute resolution.
4. The landlord’s duty was to provide the information. The tenant’s ability to obtain it through the internet, telephone enquiries or contact with the scheme did not satisfy the statutory requirement. Applying Kahlon v Isherwood [2011] EWCA Civ 602, actual knowledge could not cure omission of information forming part of the substance of the prescribed requirements.
5. The complete omission of paragraphs 2(1)(c) to (f) meant that there was no substantial compliance. Since the amendments made by section 184 of the Localism Act 2011 did not apply, the order was varied under sections 214(3) and (4) of the Housing Act 2004 to require repayment of £950 and payment of £2,850 within 14 days.

1. Court of Appeal (Civil Division) — In Ayannuga v Swindells [2012] EWCA Civ 1789, the appeal was allowed and the order was varied to require repayment of the £950 deposit and payment of £2,850.
2. Woolwich County Court — Deputy District Judge Walder dismissed the tenant’s deposit counterclaim, holding that the tenancy agreement and additional information substantially complied with the statutory requirements.