News article published on: 25th March 2019
William Ford of the Property Litigation Department recently represented a tenant client in connection with his landlord’s failure to protect the deposit, an area of law which is leading to much judicial debate. The case has been reported in Legal Action – February 2010. The landlord’s have applied for permission to appeal this decision however permission has not yet been granted.
Hashemi v Gladehurst Properties Limited
Clerkenwell and Shoreditch County Court, 9 December 2009
Gladehurst granted Mr Hashemi and Mr Johnson (the tenants) an assured shorthold tenancy of a flat for a fixed term of one year from September 2007. The monthly rent was £2,080. A deposit of £6,240, the equivalent of three months’ rent, was paid to Gladehurst in advance. The terms of the agreement provided that the deposit was to be held by Gladehurst. Contrary to the provisions of HA 2004 Part 6, the deposit was never registered or dealt with in accordance with the Act.
The tenants vacated the property in October 2008. An inventory clerk inspected the flat. He suggested that the premises had not been well cared for and that significant deductions should be made from the deposit. As a result, Gladehurst paid back the deposit minus the various deductions. The tenants accepted some of these, but disputed £500 for the repainting of walls and £118 for other dilapidations. Mr Hasemi then wrote to Gladehurst requesting receipts and a breakdown of the sums deducted from the deposit. He put the company on notice that the tenants would make a claim for three times the deposit under s214. In February 2009, Mr Hashemi issued a claim against Gladehurst in both his own name and that of Mr Johnson. Gladehurst in its defence pleaded that it had not been fully aware of the impact of the HA 2004, but accepted that it applied. The defence also asserted that the landlord had all the necessary receipts for the dilapidations and other expenses paid on behalf of the tenants.
In April 2009, District Judge Manners, of her own motion on the papers, struck out the claim on the basis that the tenancy ended before the application was made. Mr Hashemi applied to set that order aside. District Judge Stary dismissed that application in so far as it related to the s214 claim, but reinstated the claim for the deductions of £618. Mr Hashemi appealed.
HHJ Cryan allowed the appeal that reinstated the claim. He noted that the landlord:
…..never dealt with the deposit in the correct way in accordance with Part VI of the Act and still retains part of it….There can be no question that in accordance with the scheme of the Act a landlord should not be holding any part of a qualifying deposit at this stage, or at least without the safeguards of the Act being in place.
He said that it was ‘obvious upon a full reading of Schedule 10 that the role of the scheme under the Act is every bit as operative after the tenancy has come to an end as during its course’. He rejected the suggestion that there was ‘some species of equitable defence’ based on an implied duty on the tenant to place a landlord on notice before making a claim.
HOUSING AND CHILDREN
Local Government Ombudsman Complaint
Waltham Forest LBC
08 016 986, 21 October 2009
The complainant was a young woman who had lived with her mother. As a teenager she had approached the council’s children’s services department for assistance repeatedly but had not been helped. When eventually she became homeless she was dealt with only by the housing department. She was provided with temporary accommodation in a hostel and then in B&B accommodation where many of the residents were older men and she considered herself at risk of further abuse. When offered an unfurnished tenancy by a housing association, the only help given by the council was provision of a bed. The complainant complained that the council had failed to provide her with services initially under Children Act 1989 s20 and latterly under the leaving-care provisions .
The Ombudsman found that she:
……had suffered very serious abuse and was variously described as being extremely troubled; having behavioural and emotional difficulties; very vulnerable; having suicidal thoughts; problems due to lack of adult support; diagnosed as being depressed; her life was ‘dangerous and unsupported and is hugely at risk’. Her relationship with her mother broke down to such an extent that she could no longer live there and became homeless.
Despite all of this, children’s services continually turned her away, refusing to provide support and saying she was neither a child in need nor at risk of harm. Eventually, after considering her complaint, the council carried out a further assessment and concluded that she was a child in need. There was nothing new in her situation then and, if she were a child in need at that point, then she must have been one earlier. She should, accordingly, have received services from a much earlier date (paras 77-78).
He recommended an apology, compensation of £7,000 and a review of the way the council assesses children in need.
William Ford, Osbornes, solicitors, London and Kevin Gannon, barrister, London.