Separate Form?
You say a "prescribed form". Does this mean I must produce and supply a form to give to the tenant?
Yes! Some scheme operators are stating that you don't need to do this, but this is not true! Article 2 of the order provides all the information required and there are some clues when we read Section 213 Housing Act 2004 and Article 2 of the prescribed information order as to the intentions of Parliament.
The relevant part of section 213 Housing Act 2004 reads:
"(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to-
(a) the authorised scheme applying to the deposit,
(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and
(c) the operation of provisions of this Chapter in relation to the deposit,
as may be prescribed.
(6) The information required by subsection (5) must be given to the tenant and any relevant person-
(a) in the prescribed form or in a form substantially to the same effect, and
(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord."
If we just type into one line the bold parts, this sub section becomes clear.
"A landlord ... must give the tenant and any relevant person ... information ... as may be prescribed ... in a prescribed form or in a form substantially to the same effect."
So, this means we must give the tenant a separate prescribed form.
Can I put all the details in the tenancy agreement?
The regulations clearly imply that it should be in a separate form. To get all this information into a tenancy agreement would be very difficult in any event because there is so much information to give.
A clue that we are not supposed to have this form in a tenancy agreement is contained in Article 2(g)(iv) of the prescribed information order which reads:-
(vi) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and
Note the words "by reference to the terms of the tenancy". This clearly implies there is a separate document that must then "refer" to your tenancy.
This (in our opinion) clarifies the position that there must be a "separate form" containing the prescribed information.
Can the prescribed information be in more than one form?
It is probably easier to produce a single form containing all the necessary information. However, it would appear that information may be contained in more than one document (as long as all documents have been provided to the tenant). This clause is given in Article 2(g)(vii)(bb) which reads:-
"(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief."
Note the word "any". This clearly implies there may be a situation where more than one document has been supplied.
A final clue that the prescribed form must be a separate document.
One final clue can be gained from Article 2(g)(vii) of the prescribed information order which reads:-
(vii) confirmation (in the form of a certificate signed by the landlord) that-
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
Notice the part I have made bold under (vii). It is in the singular. A (single) certificate must be provided in the prescribed form which is signed by the landlord and stating the words used.
This is another indication that the prescribed form is a separate document, otherwise it would have said for example "A term in the tenancy confirming ...".
Also notice, the tenant must be "given the opportunity" to sign. This is why it is best to have the prescribed form available at the same time as the tenancy agreement for signature.
