Q My daughter's tenancy of a flat is due to expire in about a month. The agents informed us that the deposit was to be paid to a company that is holding it, but no further information or notice has been received. Should she wait until the tenancy expires in a few weeks before taking action to recover the deposit? Can you advise how we should proceed and whether there are any alternative measures we can take?

A The Housing Act 2004 introduced controls on deposits paid in relation to most private lettings. There are two main obligations. First, the landlord must provide prescribed information to the tenant that complies with the Housing (Tenancy Deposits) (Prescribed Information) Order 2007. This should either appear in the tenancy agreement or the landlord may send a separate notice to the tenant within 14 days of the deposit being paid. Secondly, the tenancy should be registered with one of the three government-approved tenancy deposit schemes. The schemes have procedures for deciding disputes over the deposit.

Failure to comply with these requirements can have dramatic effects - a court must order the landlord to return the money and pay the tenant damages of three times the deposit. However, the courts may be reluctant to impose such severe sanctions. Last month a circuit judge at Sheffield County Court in the case of Harvey v Bamforth allowed a landlord's appeal against such a penalty where he had served his notice late.

If your daughter has not been given the prescribed information she is entitled to ask for her deposit back immediately.

However, if the landlord has complied with the legislation your daughter has no right to withhold the last month's rent to compensate for the deposit. The tenancy agreement will almost invariably say that it may be returned only at the end of the tenancy. Furthermore, your daughter has no common-law right to set off any claim for the deposit against rent that she has to pay. If the landlord unreasonably refuses to return the deposit at the end of the tenancy your daughter can trigger the disputes procedure under the relevant tenancy deposit scheme (it should be free of charge) and the scheme will ensure that she gets her deposit back.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: brief.encounter@thetimes.co.uk

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