Hot on the heels of the Court of Appeal decision in Lowe v The Governors of Sutton's Hospital In Charterhouse [2025] EWCA Civ 857, the county court decision in Macintyre v Cowdray Trust Ltd and Rathbones Trust Company Ltd [2025] EWCC 54 provides encouragement to both landlords and tenants in respect of the thorny issue of tenancy deposits.
Background to Macintyre v Cowdray Trust Ltd and Rathbones Trust Company
The landlord granted a 1-year assured shorthold tenancy starting on 29 June 2018. A £2,000 deposit was paid upon signing. On the same day, the tenant was provided with a Deposit Protection Certificate from an insurance scheme known as 'my deposits' and with the information prescribed by the Housing (Tenancy Deposits) (Prescribed Information) Order 2007.
On 14 November 2018, the landlord sent a rent demand to the tenant at an email address she had provided at the start of the tenancy (the 1st email address).
The tenant replied on 29 January 2019 asking the landlord to use her alternative email address (the 2nd email address) in future as she cannot receive emails at the original email address.
At the end of 2022, the landlord paid over the tenant’s deposit to another deposit scheme known as TDS Custodial.
The tenant was provided with a document purporting to be the prescribed information. In the relevant section of that document, the tenant’s 1st email address was stated.
The landlord sought possession having served a s.21 notice.
The district judge made a possession order. He decided:
Issue 1:
- The obligations about providing prescribed information in section 213 Housing Act 2004 apply only when a deposit is received and are not engaged again if it is subsequently transferred.
- Thus in this case, providing prescribed information in 2018 was sufficient.
Issue 2:
- The use of the 1st email address in the 2022 document was not substantially to the same effect as the 2nd email address.
- The landlord could not reasonably have considered that the 1st email address was an email address for the tenant on which she could be reached at the end of her tenancy.
- Therefore, but for the conclusion on issue 1, the possession claim would have failed.
Issue 1: Is there a new obligation to provide prescribed information at the time of transfer between the tenancy deposit schemes?
HHJ Glen concluded there was and allowed the tenant’s appeal.
- A vital component of the deposit protection legislation is “ensuring that the tenant is provided with the information necessary to know where their deposit is held, how it is held and how to get it back at the end of the tenancy.”
- It cannot be doubted that s.213(5) is capable of giving rise to a continuing obligation to provide information relating to the authorised scheme applying from time to time.
- It is to be noted that the sanction provided by Section 215 can be avoided by late compliance and for that purpose, the information provided would have to relate to the scheme then current, not that (if different) applying at the outset of the tenancy.
Issue 2: Was the reference to the erroneous email address a breach?
HHJ Glen concluded it was not and allowed the landlord’s cross-appeal.
- The question is whether the information given was, as a whole, substantially to the same effect as that prescribed having regard to the purpose for which it is required. In this case it was.
- The information required by Article 2(1)(g) of the Prescribed Information Order, which includes the tenant’s email address if any, will be within the tenant’s knowledge already.
- Not every error or omission will cause the landlord to be in breach.
- The other information provided in relation to Article 2(1)(g)(iv) included the tenant’s phone number so there was a means of contact her at the end of the tenancy.
The net effect of allowing the appeals of both parties was that the order for possession stood.
What does this mean for landlord and tenant advisers?
Although, of course, a county court decision is not binding, HHJ’s Glen’s judgment is likely to be considered persuasive.
Landlord advisers:
- Make sure prescribed information is (re-)served if and when the deposit is transferred into a new scheme.
- Also ensure at least a phone number for the tenant (if not an email) is contained within the prescribed information served.
Tenant advisers:
- Be alive to failures of landlords to do the above.
- These issues are likely to be relevant in proceedings arising out the flurry of s.21 notices in advance of the Renters Rights Act coming into force and could make or break a possession claim.