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HB and necessaries

By Dave

Wychavon DC v EM  is a double decision, so to speak, by Judge Mark on a housing benefit matter, with broader implications regarding incapacity.  In essence, EM is profoundly disabled (mentally and physically).  Her parents moved her from a care home, with the support of Worcestershire CC (which also encouraged the understanding that entitlement to HB would follow), to an annex they constructed at their home.  EM had previously lived in the garage at their home, but this was unsuitable as EM required round the clock care from three carers, who needed their own accommodation.  EM’s parents could not afford this new arrangement without housing benefit.  EM’s dad entered into a purported tenancy agreement with her for an indefinite term (hmm) at (what all agreed) was a reasonable rent.  The question for the Upper Tribunal was whether this created a liability to which HB attached.

In the first decision ([2011] UKUT 144 AAC), Judge Mark held that it did not [we discussed that decision here NL].  It was a void agreement because EM’s dad clearly knew that she lacked capacity (citing Hart v O’Connor [1985] AC 1000).

However, in somewhat dramatic fashion, Judge Mark returned to the matter ([2012] UKUT 12 (AAC) – not on BAILI yet but we have seen the judgment thanks to a friend of the blog)  in accordance with Rule 45(1)(a), Tribunal Procedure (Upper Tribunal) Rules 2008, which enabled him to re-open the decision if he had overlooked a legislative provision or binding authority which could have a material effect on the decision.  At this hearing EM brought an entirely new ground to the table, so to speak: contracts for necessaries, either under section 7, Mental Capacity Act 1995 or the common law position as exemplified by In Re Rhodes (1890) 44 Ch D 94.  And he also had the redoubtable Nathalie Lieven QC and David Blundell acting for EM (presumably pro bono, although this isn’t stated).

Although Judge Mark was in some doubt as to whether section 7 covered this matter (is the provision of accommodation “goods and services”?), he held rightly that the common law would cover this matter if the provision of this accommodation was a necessary.  Wychavon argued that it wasn’t necessary because EM had previously lived in the garage and could do so again; but, as Judge Mark pointed out, that flew in the face of the evidence which had been accepted by the judge in the first tier tribunal and was in some respects uncontested.

As Judge Mark points out, HB is not only payable where a person is liable for rent but in respect of payments for the dwelling which is occupied as a home, and EM was so liable.  Wychavon submitted that such matters were best dealt with through the Court of Protection.  Judge Mark agreed but was also right in saying that such applications take many months and, pending that application, a person without capacity should not be left without necessaries.

There is a parting salvo because it was clear that the issue here was not between EM and Wychavon but between Wychavon and Worcestershire CC, which had effectively passed the matter on: “It is very unfortunate if that is the case, and if this series of appeals at public expense has been made necessary because of arguments between different authorities as to from whose budget essential provision should be made”.


  1. Chris

    interesting that contract of necessity should be used.

    I had a case where a 17 year old was given a tenancy and the otherside tried to claim contract of necessity. Won’t the statutory provisions of the Law of Property Act 1925 and Trust of Land Act step in to make the tenancy void (for want of better word at 9am).

    Alhough, given the facts I think this arrangement is more a licence more than a tenancy. I’d be interested in the actual judgment and comparing to Alexander-Davis (i think that is the Court of Appeal case on granting tenancies to those under 18).

    I think we can all agree those litigation is this case is stupid, just use the money wasted on us lawyer to pay the HB.

      • dave

        I agree that the first case was wrongly decided – it took me back to my old restitution tutorials with contracts for necessities. In fairness to Judge Mark, though, I don’t think that the issues were fully and properly canvassed before him at that first hearing and the quality of submissions for EM on the second hearing were infinitely superior (not for the LA, though). The specific question about the tenancy to a minor is clearly dealt with by TLATA (in the old days, it would have been a strict settlement).

      • Chris

        Yes I think I should thank nearly legal for Alexander-Davis. Read the e-mail on that case some 18 months before the same thing crossed my desk. Knew I’s read it off this blog and found the case.

        Got the client off some damages due to it.


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