Tenancy deposit

Where a relevant landlord has failed to place the deposit into the statutory scheme, the tenant can make an application to the First Tier Tribunal Housing and Property Chamber. This can be done either:

• during the tenancy, or

• up to three months after the tenancy has ended [1]

Where the landlord has failed to return an unprotected deposit to the tenant at the end of their tenancy, a separate application can be made to recover this money.

The tribunal can order the landlord to pay the tenant up to three times the amount of the deposit as compensation, [2] and to pay the deposit into a scheme as well as comply with the other requirements of the tenancy deposit scheme regulations. [3]

The tribunal can also make an order for payment to return an unprotected deposit to a tenant where:

• the tenancy has ended, and

• the landlord has not returned the deposit

To get an order for payment, the tenant must make a separate application for civil proceedings to the tribunal. [4]

The application may be made using Form G which can be downloaded from the tribunal website.

The application must: [5]

• state the name and address of the tenant

• state the name, address and profession of any representative of the tenant (if used)

• state the name, address and registration number (if any) of the landlord

• be accompanied by a copy of the tenancy agreement. If this is not available the tenant must provide as much information about the tenancy as possible.

• provide any available evidence of the tenancy end date and

• must be signed and dated by the tenant (or representative)

It may also be useful to state that:

• the landlord has failed to comply with their duty in terms of Regulation 3 of the Tenancy Deposit Scheme (Scotland) Regulations 2011 in respect that the deposit paid by the application was not paid to an administrator of an approved scheme within 30 days as required

• the landlord failed to provide the tenant with the Prescribed information about the tenancy deposit in accordance with Regulation 42 within 30 days

• the tenant is seeking return of the deposit (or that the deposit be placed into the scheme if the tenancy is continuing)

• the tenant asks the tribunal to make an order of up to three times the amount of the deposit as per Regulation10

• details of any other relevant information (see the section on decisions below)

A separate application to recover an unprotected deposit can be made using Form F which can be downloaded from the tribunal website. This is separate to an application for compensation. If the tenant had a private residential tenancy, the claim for civil proceedings will be made using rule 111. If they had an assured or short assured tenancy, it is rule 70. Applicants should provide as much information about what is being sought and why. It may also be useful to show evidence that:

• a deposit was paid to the landlord - e.g a bank statement showing the money leaving the account

• the tenancy has ended

• the tenant has requested the return of the deposit in writing

• the tenant has given the landlord time to return the money, and

• the landlord has not done so

Where an application for both compensation and return of unprotected deposit are made, the tenant can submit these together. [6] A tenant can then ask the tribunal to consider both applications simultaneously.

The tribunal may call a case management discussion and/or a hearing. See the section on Tribunal applications for more information.

When deciding how much compensation the landlord must pay to the tenant the tribunal are required to proceed in a manner that is ‘fair proportionate and having just regard to the seriousness of the breach’ [7]

Cases at the most serious end of the scale (and which therefore justify a penalty of three times the amount) might involve: [8]

• repeated breaches against a number of tenants

• fraudulent intention

• deliberate or reckless failure to observe responsibilities

• denial of fault

• very high financial sums involved

• actual losses caused to the tenant

In one case even where the deposit had eventually been lodged into the scheme after the action had been raised, the landlord was still required to make a payment due to there having been a period of time where they had been non-compliant. In this case in deciding how much was ‘a fair, proportionate and just sanction’ the amount of deposit was divided by the number of days in the lease and multiplied by the number of days the deposit was unprotected. [9]