#AskTDS: "What do I do if my deposit isn't protected?"

Since April 2007, it has been a legal requirement for landlords to protect deposits for assured shorthold tenancies in a government-approved scheme.

What is an Assured Shorthold Tenancy?

Only deposits for Assured Shorthold Tenancies (AST) need to have deposits protected. An AST is the most common type of tenancy if you rent from a private landlord or letting agent.

You usually have an AST if:

• your original tenancy started on or after 28 February 1997
• you don't share any accommodation with your landlord and they live elsewhere

You won't have an AST if your rent is:

• more than £100,000 a year
• less than £1,000 a year in London or £250 a year outside London

Your deposit does not need to be protected if it is not for an AST.

How can I find out if my deposit has been protected?

When your landlord or agent protects your deposit, they should issue you with deposit protection documentation called prescribed information. If you have not received this documentation or are unsure if your deposit has been protected, you can check on our website to see if it has been protected with TDS. We run two schemes so please check both:

• Is my deposit protected in the TDS Insured Scheme?
• Is my deposit protected in the TDS Custodial Scheme?

If your deposit is not protected with TDS it may be protected by one of the other two deposit protection providers. You will need to contact them to find out if your deposit is protected by them.

What to do if your deposit is not protected

If you suspect that it has not been protected you should follow these steps:

• Contact the deposit protection schemes and enquire if your deposit is registered with them.
• If your deposit has not been protected, you can contact your landlord and ask them to do so immediately.
• You can contact your local county court and start proceedings against your landlord.
• If it is found that your landlord has not protected your deposit they will be ordered to either repay it to you, or to pay it into a custodial scheme within 14 days.

Most landlords and agents are aware of their responsibilities and will have registered your deposit with one of the three schemes. In cases where an agent goes into liquidation, TDS will write to tenants giving them a time limited opportunity to submit an application. This application will allow the tenant to raise a dispute at the end of the tenancy, whenever that may be, and TDS will honour the protection. These measures are in place to ensure the tenant is not left out of pocket through no fault of their own.

What to do if your deposit was not protected at the start of the tenancy

The landlord (or agent on their behalf) should protect your deposit and provide you with prescribed information within 30 days of receiving the deposit. If you haven’t received notification as to your deposit protection, you may want to check this with your landlord or agent.

If you think your deposit has not been protected, you should contact each of the three government approved providers to ensure that this is the case. If none of the schemes have any record of your deposit you can seek advice from Shelter or your local Citizens Advice Bureau (CAB) or reach out to your local county court to ask them for assistance. It is important to note that the deposit protection schemes will only check against the details you provide so you should ensure that you provide the correct start date, address and landlord name.

While we recommend opening communications with your landlord before going to court, you may initiate court proceedings against your landlord. The courts will consider your evidence and if they agree your deposit has not been protected they will then ask your landlord to either:

• Return the deposit to you; or
• Pay the deposit into a custodial scheme within 14 days

The court may order the landlord to pay you between one and three times the original deposit amount.

What should you do if your deposit has been protected and then unprotected

The deposit should remain protected for the duration of the tenancy, although there may be cases where your landlord or agent decides to change which scheme the deposit is protected with, in which case you should receive updated deposit protection documentation.

There are various circumstances in which you should receive updated deposit protection documentation, such as (but not limited to):

• If there is a change in landlord
• If there is a change in tenant
• If there is a change in tenancy address
• If there is a change in scheme

If your deposit is unprotected, this usually means that a landlord has notified the Tenancy Deposit Scheme that your tenancy has ended, or that your deposit has been protected with another scheme (usually due to a change in managing agent, or after the sale of a property to a landlord who uses a different scheme).

If this is not the case, you should reach out to the scheme that your deposit was last protected with. In the Insured scheme, even though the deposit protection has been marked as ended, the Tenancy Deposit Scheme will continue to offer protection for three months, to ensure that you have access to our dispute resolution service if you do not agree with the landlord retaining your deposit.

For more tenant tips please view our tenant FAQ page.

About TDS

Tenancy Deposit Scheme (TDS) is a government-approved scheme for the protection of tenancy deposits; TDS offers both Insured and Custodial protection and also provides fair adjudication for disputes that arise over the tenancy deposits that we protect.

We provide invaluable training in tenancy deposit protection and disputes for agents and landlords through the TDS Academy as well as joining with MOL to provide the Technical Award in Residential Tenancy Deposits.

TDS Insured Scheme: where a TDS member can hold the tenancy deposits as stakeholder during the term of the tenancy.

TDS Custodial Scheme: where TDS hold the deposit for the duration of the tenancy.

TDS Academy: TDS provides property professionals with invaluable training in tenancy deposit protection and tenancy deposit disputes.

TDS Northern Ireland: TDS is Northern Ireland's leading and only not for profit tenancy deposit protection scheme.

TDS can only comment on the process for our scheme, other deposit protection schemes may have a different process/require different steps. Content is correct at the time of writing.

These views are those of the author alone and do not necessarily reflect the view of TDS, its officers and employees.

RLA: If you are a landlord and would like to keep up to date with any changes that may affect you or your responsibilities, you can contact the RLA at: info@rla.org.uk and quote reference: dg715 to receive 25% off your first year's membership.