These government-backed schemes ensure that tenants will get their deposit back if they:
Meet the terms of your tenancy agreement
Don’t damage the property
Pay the rent and bills
The landlord, or agent acting on his behalf, must put the tenant's deposit in the scheme within 30 days of receiving it. At the end of the tenancy, the deposit must be returned to the tenant within 10 days of both parties agreeing how much is to be returned.
But what happens if there is no agreement on how much should be returned? Well, you can use your tenancy deposit protection (TDP) scheme’s free dispute resolution service to resolve the matter. In this example, we will look at the process to be followed if the deposit is protected by the Tenancy Deposit Scheme, although in reality the three schemes are very similar and the same principles apply to each scheme.
Please note that the TDS can only accept disputes up to three months after the end of the tenancy.
How do I send a deposit dispute?
The quickest and easiest way to raise a dispute is online:
Locate your tenancy deposit protection record here: Is my deposit protected? You will need your Tenancy Deposit Certificate Code which can be found on your TDS Tenancy Deposit Certificate.
If your tenancy is located you will see a summary of your tenancy deposit protection record.
Follow the link at the bottom of the page to begin a dispute. There you can enter the details of the dispute and upload evidence to support your dispute application.
If you are the tenant and raising a dispute, the TDS will contact the deposit holder to request the disputed money. The TDS will hold it securely until the dispute is resolved. Please remember that the TDS can only accept disputes up to three months after the end of the tenancy.
What information should I give to the TDS adjudicator?
The adjudicators make their decisions based on the evidence provided; they can't make any assumptions, so make sure you have all the necessary paperwork to hand before your start the dispute. Your claim might fail if you do not complete the forms correctly or give the adjudicator the evidence they need. If you present your claim properly, you can improve your chances of success. Claims can fail because Dispute Applications and Responses are not completed correctly, or because not enough evidence is sent to support the claim.
What does the adjudicator look for?
An adjudicator can only adjudicate based on the information they are provided, and will not contact the parties for follow up information or supporting evidence.
When an adjudicator considers a case, they need to know what the claim is about and how much is being claimed. They find this information in the Dispute Application and the Dispute Response that the landlord and the tenant send to the TDS. It is worth taking time to complete these properly, so that the adjudicator is not in any doubt about what the claim is for.
The Dispute Application and the Dispute Response ask you to break down your claim into items that relate to:
When reviewing your case, the adjudicator will usually ask themselves these questions, in the following order, for each category of claim:
What is this part of the claim for? (e.g. cleaning, redecoration, etc.)
What are the tenant’s obligations? (i.e. in the tenancy agreement and under the general law)
Did the tenant fail to meet those obligations? (evidence from check-in and check-out reports, rent statements, etc.)
If so, what loss did this cause to the landlord or agent, allowing for fair wear and tear?
What evidence has the landlord or agent produced to quantify their loss? (invoices, quotes, etc.)
The adjudicator can only work with the information submitted. They know nothing about the dispute except what the parties send in. Adjudicators will not contact landlords or tenants to ask them for missing information.
You need to show clearly to the adjudicator:
What is being claimed for
How much is being claimed
Why you think you are entitled to be paid
That the amount you are claiming is justified and reasonable
You can do this by completing your Dispute Application or Dispute Response clearly, and supporting it with relevant evidence.
It is helpful if you give a breakdown of each category of claim if there is more than one item in a category. So, for example, if the cleaning claim was for a total of £243.00, but was made up of different claims (e.g. carpet cleaning £75.00, oven cleaning £25.00, general cleaning £143.00) spell this out.
It is not helpful to present the adjudicator with a long list of individual claims and leave the adjudicator to try to figure out whether you regard each item as redecoration, damage, missing items or "other".
It is the responsibility of the person who asks for the deposit to be paid to them to make sure that they provide all relevant evidence when they submit the Dispute Application or Response.
Adjudicators work from the position that the deposit is the tenant’s money until the landlord or the agent proves that they are entitled to the amount claimed. In this respect, the burden of proof is therefore on the landlord/agent (similarly, where a tenant puts forward a claim/argument, the burden will be on them to prove their point). The standard of proof is the balance of probabilities. In other words, the adjudicator will decide whether it is more likely than not that the landlord/agent is entitled to claim. The landlord/agent will not have to prove their claim beyond reasonable doubt.
What evidence should I use?
Check-in report and/or inventory
Make sure your evidence is relevant: it’s the quality – not the quantity – that matters. Evidence will usually be relevant if it:
Shows the condition of the property or contents at the start of the tenancy
Shows the condition of the property or contents at the end of the tenancy
Shows the amount of rent paid or received
Shows the cost of cleaning, repair, redecoration, etc.
Evidence will not usually be relevant if it:
Simply duplicates something you have already submitted (e.g. several copies of the same e-mail or agreement)
Can’t be linked to the tenancy in question (for example a check-in or check-out report that is undated or does not give the property address)
Is about an aspect of the tenancy other than the deposit (for example references to aspects of the landlord’s or tenant’s character which have no bearing on the actual dispute)
Does not prove anything
Merely states your views on the character, competence or conduct of your landlord, tenant or agent
The adjudicator will not usually take into account evidence that is illegible – for example, pictures that are unclear.
Photographs or videos can be helpful, but they need to be of reasonable quality. Photographs taken at the end of a tenancy are only helpful if there are comparable photographs taken at the beginning of the tenancy. It can be useful to have photographs in a check-in and check-out report, especially if both landlord and tenant have signed the check-in and check-out reports. However, the photographs do need to be clear, and a reasonable size. Blurred or photocopied images are not useful as evidence. Photographs should be clearly labelled with the date, time, the room in which they were taken, and briefly describe what the photograph aims to show. It is also helpful to number the photographs.
All documents you give to the TDS in support of your claim will be made available for the parties to the dispute to see via the Online Evidence Portal. This includes the details of the dispute, and your statements about what you are claiming and why. This does not include your personal contact details and payment instructions. It is your responsibility to make sure that you do not send evidence which you do not want the other parties to the dispute to see.
What happens next?
When the TDS receives your Dispute Application they will contact the other party to request their response and for the disputed money to be paid to the TDS. Having reviewed the case to confirm the TDS is able to adjudicate, the dispute will be referred to an impartial adjudicator. Within 28 days they will examine all of the evidence to decide how the deposit should be apportioned and write a report explaining the reasons for their decision. A report will then be issued and the disputed money paid accordingly.
The adjudicator's powers
The adjudicator only has power to make decisions about the deposit. The adjudicator cannot make rulings about the tenancy more generally.
The maximum the adjudicator can award is the amount of the deposit. If the amount in dispute is more than the deposit, the case can still be submitted for adjudication, but the landlord and the tenant may need to go to court to deal with anything that is not covered by the deposit.
The adjudicator will take account of any legally binding agreement that the parties have made whilst trying to settle their dispute. The adjudicator need not take account of any agreement the parties have reached if that agreement is not legally binding. The adjudicator’s decision about whether or not an agreement is legally binding is final.
Remember that the deposit is first and foremost the tenant’s money; this remains the case until the landlord can justify their claim to it.
The onus is on the landlord to show why they are entitled to claim money from the deposit. As a result, when the deposit is returned to the tenant in deposit disputes this is primarily because the landlord has not provided a strong enough case to keep it.
The adjudicator must make a binding decision on the basis of the information provided by both tenant and landlord. This process is evidence based. The landlord must support their claim with evidence to show that the tenant has broken the tenancy agreement, and that the landlord has suffered, or is likely to suffer, a loss as a result.
You only need to submit evidence where you consider it is directly relevant to the dispute. For example, evidence of unpaid utility bills is not required where the dispute concerns the cleanliness of the property at the end of the tenancy. Similarly, where the dispute is in relation to damaged contents, photographic evidence is only needed if it shows the contents affected.
An adjudicator will take into account any admissions of liability by the tenant; however evidence should still be provided to show how the tenant has broken the tenancy agreement, and the loss suffered as a result.
Telling the TDS what is happening with the rest of the deposit can be helpful too.
Try to view the evidence you are submitting from the point of view an independent third party who does not know the property. Will your evidence convince them of your case?
For further information relating to UK tenancies and deposits, please get in touch with us using our contact page.
Source: The Tenancy Deposit Scheme