As many will have perhaps noticed, websites explaining how time is running out in respect of protecting any unprotected deposits aren’t in sync with the same answer. Some say this needs doing by 5th May and others say 6th May.
If you’ve got all your ducks in order and any unprotected deposits are now protected then this doesn’t matter. However, if you are protecting and / or issuing prescribed information on the 6th, then it’s really important because there’s no turning back and according to some websites, that might have been too late and despite all that work a penalty still payable!
I think therefore it’s worthy of a look in a little more detail and at some Court of Appeal case law which concerns statutory provisions which require something to be done in a set number of days.
I would respectfully submit that the final day is before midnight [am4show have=’g1;g5;’ guest_error=’guest’ user_error=’renewal’ ]6th May 2012, thus allowing all day of the 6th and still be in time.
The reason I think the relevant date is the 6th and not the 5th is because I think the requirement to protect is akin to an appeal time limit (e.g. appeal within 21 days etc.) rather than granting tenancies. A tenancy agreement when granted will normally be for a set number of months and rarely a number of days which is where I think a little confusion comes from as I think there is a distinction. When granting an AST for example, the last day of the fixed term should always be the day before the anniversary of the commencement so for example a fixed term commencing on 15 April should have a last day of 14 July (if three months).
However, when serving a section 21 notice for example it must be two “clear” months and so the day before anniversary wouldn’t be acceptable. For example a notice served on 15 April must expire no sooner than 15 June to be valid and if it expired on 14 June it would be too soon (ignoring the fact it may require a different date to end on the last day of a period etc.) The reason for this is because the day of expiry is excluded in respect of notices so it’s not quite comparable to this question [Schnabel v Allard [1967] 1 Q.B. 627].
However, when looking at case law referring to other statutory duties, it’s clear they seem to follow the full clear days principle (as I term it). My preferred option is to look at appeal time limits as that is directly comparable I submit.
In Aken v London Borough Of Camden [2002] EWCA Civ 1724 there was a question as to whether an appeal had been brought in time because the papers were handed to the court on the last day of the allowed time limit after it had closed and so wasn’t processed until the next working day (a point which isn’t relevant for this purpose but if your interested, the appeal was allowed). What is relevant, is the dates that the Court of Appeal held were correct for the purposes of bringing an appeal under section 204 Housing Act 1996 which provides “An appeal must be brought within 21 days of his being notified of the decision …”
It was accepted as common ground that the decision was notified on Monday 26 November 2001 and therefore the last day of appeal was Monday 17 December 2001 and so a full clear 21 days.
It is clear in my view that as an appeal is a “full” 21 days, I would respectfully submit that a duty to protect a deposit and give prescribed information “before the end of the period of 30 days” is also a full clear 30 days. As all unprotected deposits must be protected before the end of the period of 30 days from 6 April 2012, it is submitted a landlord or agent has until the stroke of midnight 6 May 2012. This would follow Aken v LBC above.
This principle of full days was also stated in Aadan v Brent London Borough Council [1999] All ER (D) /1231 (not on Baili) and the relevant dates for 21 days appeal were confirmed to be Saturday 4 July 1998 to Saturday 25 July 1998 inclusive.
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