Tenancy deposit protection – Minor breaches

Where a tenancy deposit has been taken but not protected, or the initial requirements of a scheme have not been complied with, or the landlord has not given the contract-holder the required information, they cannot use the section 173 six month so-called “no fault” eviction ground: Sch 9A, para 4, Renting Homes.

In Hamer v Levy [2026] EWCA Civ 662, there was an appeal against the grant of a possession order made (in England) where the landlord, who had otherwise protected the deposit in an authorised scheme, had (a) given the wrong address on the tenancy agreement and as the address for service of notices, and the wrong telephone number, (b) provided their wrong address on the deposit prescribed information, and the wrong date of receipt of the deposit, and (c) the prescribed information document was not signed.

An argument by the tenant that the tenancy deposits prescribed information statutory instrument should be applied strictly was rejected in accordance with what is not standard authority: Pease v Carter [2020] EWCA Civ 175; Lowe v Governors of Sutton’s Hospital in Charterhouse [2025] EWCA Civ 857.  The question is whether the information given to the tenant is “substantially to the same effect” as that required.  The Court held that it was, in part because of correspondence to the tenant from the landlord’s solicitors which was said to correct the error; errors in the tenancy agreement were of no material consequence; the tenant invariably communicated with the landlord by email and so the wrong telephone number was neither here nor there.  The statutory purpose had been achieved, even though the prescribed information had not been signed by the landlord, because it was “substantially to the same effect”.

There is also some important discussion about the role of the District Judge at a hearing, where there is no duty possession scheme, and the powers pf the court on appeal to strike out an application to appeal.  I am less interested in the latter on this blog, and more interested in the former.  The Court found that the District Judge’s approach, which was to engage in a conversation with the landlord’s solicitor, rather than hearing submissions, in the absence of a duty solicitor was not a wholly satisfactory way to proceed.  At [40], the Court said:

“The Housing Possession Court Duty Scheme (now the Housing Loss Prevention Advice Service) is a civil legal aid service provided under section 9 of and Schedule 33 to the Legal Aid Sentencing and Punishment of Offenders Act 2012. It has not been suggested to us that it is mandatory for hearings to be listed on days when the duty officer is present. But there is certainly an expectation that they will be so listed. Furthermore, it is clear from the transcript of the hearing that the appellant raised this issue and the district judge expressed concern that she was at a disadvantage.”

I am aware that not all possession cases are listed on days when the duty desk scheme is available; and that, even when they are, the duty solicitor may be too busy.  This was a case listed for 30mins where the tenant had raised a defence to the claim.  Experience suggests that these matters are not always listed (or re-listed) on possession days.  There is a temptation to “just get on with it” due to pressures on court time and the need to, well, “just get on with it” (in this case, there was a possibility raised about the landlord’s mortgagee taking possession).  This case is an important broadside from the Court of Appeal to think twice about that practice.