Giving a Tenant a Reference

In any case, I think that the reference is personal date subject to the Data Protection Act right of subject data access.
As such if the prospective tenant makes a formal request to the agent can disclose the reference, and in fact he may be obligated to. I think that whether the prospective tenant as paid anything by way of referencing fee is irrelevant.

Based on that, one should never assume that a reference will remain confidential.
If one expects the reference to remain confidential, he should make it explicit when providing it, as I understand that this may make a difference.

Reply to the comment left by "Romain " at "13/03/2014 - 15:58":

I wrote at the bottom

The information given is in the strictest confidence

I thought that would do it

Reply to the comment left by "Dean " at "13/03/2014 - 16:03":

Well, it should have.

DPA's section 7 says the following regarding a disclosure that would allow to identify a third party or the source of the information:

(6) In determining for the purposes of subsection (4)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard shall be had, in particular, to—
(a) any duty of confidentiality owed to the other individual,
(b) any steps taken by the data controller with a view to seeking the consent of the other individual,
(c) whether the other individual is capable of giving consent, and
(d) any express refusal of consent by the other individual.

If you wanted to complain, you could do so to the ICO on the basis of the above.
Not to mention that your tenant in all likelihood did not submit a formal subject access request, and the agent probably just mentioned it.

I think everyone needs to understand the full implications here as from what I have read so far I am not sure they do.

First you cannot be sued for an honest and truthful opinion. So if that is the reference you gave you have nothing to worry about from any quarter. But if you do not disclose something material then you can.

Second if an ARLA agent you should definitely ask for their complaints procedure and tell them when that is exhausted exhausted if the £400 is not refunded in full then you will complain to ARLA but first the tenant must go to TPO, that is the correct sequence (according to ARLA). Complain to ICO as well.

Next self referencing. By all means do it but you'll never get the depth you will from a pukka licensed referencing company and there will be references and responses you will never get no matter what authority from the applicant you give to the referee. Many organisations will also not give references to an individual, only a company.

You also need a very good disclaimer on the reference which would have dealt with this release issue in this case, though it won't protect you if you have lied or given significantly incomplete information.

Vanessa - always tell the truth because anything you don't and is deemed material can come back to bite you. Especially if there were comments/complaints about the drum playing and you had to mentiuon it to the tenant, and they ignored you. Applies to any issue of complaint (wrong car parking etc).

Just imagine if this drum player is going into a block of flats!!!

There have been two major High Court Court cases on this I know of on employment references but same principles apply.

One involved Cardiff Uni about 20+ years ago when a tutor not even a students course tutor or mentor etc gave an appalling reference on a mature student saying she was such an emotional mess she probably wouldn't even finish her course!!

Needless to say she did not get the job and the Uni was ordered to pay £25,000 in damages - 20+ years ago!!

The second one was only a couple of years ago, cannot remember the exact circumstances but it was similar again in relation to a job application and something came out from a company the applicant had left about 4 years ago, totally untrue, he didn't get the job and that cost the company I think it was £15000

Referencing is a much malignbed, much understood and very specialised area, obtaining and above all interpreting, be very careful. It is what is not said you need to recognise. And finally do not think the hairs on the back of your neck will help, or that you can spot a bad 'un. I lent significant money for NBS for 20 years and at the end of that career I still couldn't spot a bad 'un!!

If you want the best question to ask, which means no-one can wriggle, ask this:-

"Has the tenant always discharged all of their obligations under every obligation in their tenancy agreement in full and at all times?"

That is the killer question which covers everything - arrears, late payments, behaviour at property the lot. It covers the entire tenancy agreement for thew whole of their occupancy.

You can also ask the same question in relation to their Guarantor if they had one - now that is being thorough

I recently had a letting agency release the reference to my lodger less than 2 hours after I had given it. In It I had mentioned that the lodger was planning to quit her job to go back to study (with no plans of how to support herself although I did not mention this). The lodger had failed to tell the agency about this. Obviously, this caused bad feelings between the lodger and me, so much so that the lodger has accused me of harassment for following the procedures laid out in the 1977 Torts (Interference with Goods) Act for the possessions she left behind and of breach of the Computer Misuse Act by showing her how to set an administrator password on her computer.
I had not given permission for my lodger to pass my details to the letting agency and then onto their referencing agency. Both these agencies were in breach of the DPA as their processing of my data caused me considerable distress, allowing me to sue for damages (Google v Vidal-Hall would allow for this even if I hadn't suffered a loss (the lodger moved out early)).
I would strongly urge anyone looking to take up references to ensure they have the referees permission to contact them.