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By J
13/03/2015

Part 7 and capacity

R (MT) v Oxford CC, High Ct, (Lawtel note only as far as I can tell) is an interesting little case on capacity and homelessness

Mr MT lacks capacity and is unable to manage his housing or financial affairs. He (or, I suspect, his father who was also his litigation friend) applied to Oxford CC as homeless, but Oxford decided that he could not do so. Their reasoning was based on an old case called R v Oldham MBC ex p Garlick and other appeals (1993) 25 HLR 319, in which the House of Lords had held that a person could only apply for assistance as homeless under (then) Pt.3, Housing Act 1985 (now, of course, Pt.7, Housing Act 1996), if he had capacity to understand an offer and reject or accept it.

MT contended that Garlick was no longer good law in light of, in particular, Art.14, ECHR (prohibition of discrimination in enjoyment of Convention rights). Interestingly, there was no Equality Act challenge (as far as the note suggests). Sadly for Mr MT, the High Court was having none of it. Garlick was still good law. There were other regimes which could assist MT (assuming he qualified) e.g. National Assistance Act 1948.

 

** Update **

We’ve heard from counsel for Oxford (Lindsay Johnson of Doughty St Chambers) who confirms that MT argued that Garlick should not be followed, having regard to the position under Art.8 and Art.14. The High Ct rejected that since, as a House of Lords decision, it was binding and none of the post-HRA exceptions identified in Kay v Lambeth applied.

 

 

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

11 Comments

  1. Lucy

    Thanks very much for posting this – I hadn’t come across the case and wasn’t aware of Garlick. This is a really troubling case. As you say, it clearly raises discrimination issues. In addition, it raises concerns under Article 19 of the Convention on the Rights of persons with Disabilities (CRPD), the right to independent living. The CRPD is not incorporated into UK law but is regularly cited as persuasive authority in cases concerning housing and benefits (e.g. Burnip, Bracking etc). Art 19 guarantees disabled people the right to choices equal to others about where and with whom they live. This is clearly linked to housing choices, as well as the support services needed to make that a reality. Residential care under NAA 1948 is not an ‘alternative’ to housing, just because a person has a disability. Many disabled people are supported to live in ordinary houses in supported living schemes. What a depressing judgment… any chance of an appeal?!

    Reply
  2. KFD

    “Art 19 guarantees disabled people the right to choices equal to others about where and with whom they live. This is clearly linked to housing choices, as well as the support services needed to make that a reality”
    Yes, but what if that person does not have capacity to exercise that choice? That’s the problem.

    Reply
    • Lucy

      But there isn’t a ‘choice’ to be made at all, if ‘incapacity’ means that they’re not able to make an application for housing and no one can do so on their behalf without a (costly) application to become a deputy.

      ‘Incapacity’ is a legal construct and the law could respond in many different ways. The fact it has chosen to respond in this way, which is in effect to say that those regarded as incapable of entering into a tenancy cannot apply for housing on the basis of homelessness, discriminates against disabled people and fails to make reasonable adjustments for their situation. To leave a person with only the option of residential accommodation under the NAA is to revert to the dark ages of institutionalisation.

      Moreover, it’s hypocritical – councils up and down the country (no doubt including Ox CC) place people with learning disabilities in supported living where it’s questionable whether they have the capacity to enter into tenancies. Cases like Wychavon has supplied a legal fudge so that their entitlement to HB isn’t affected. There is a need to address this issue properly.

      Reply
  3. Bob

    My daughter is in a supported living placement. she has been given an easy read copy of her tenancy and had it explained to her. At some point it was accepted that she could not understand it and a “best interests” decision (undisputed) was made. I am surprised that this amounts to a tenancy.

    Apparently others in her position also have personal bank accounts. I can’t see how this can be. My daughter can write her name, yes, but sign? No I would have said (and have said) on her behalf.

    Reply
    • Giles Peaker

      A tenancy by someone who lacks capacity is ‘voidable’ not ‘void’, which means it is binding as a tenancy agreement on both parties unless the person lacking capacity chooses to void it (the landlord can’t). In practice, there are no reasons why they should wish to do this.

      Reply
  4. Belinda Schwehr

    What worries me about this case is that the father WAS the deputy: so it’s a precedent saying that even if you have a deputy, you cannot make an application for Housing.

    In the real world, half the client group with ‘moderate plus’ learning disabilities have been ‘put’ in tenancies by social services departments – with the assistance of Housing Authorities, presumably, through use of nominations to social housing – and although they are now having their apparent tenancies regularised by bulk applications for single orders from the CoP, I am still not getting how this case sits with this trend?? Can it be that this ‘little’ case here has quietly made it the business of all social services local authorities to sort out housing for incapacitated people?

    And another thing: does it mean that it’s always justified discrimination for any landlord to refuse to let to can incapacitated person, even if there’s a deputy or LPA for property and finance – because if the logic of the above is that even a deputy can’t force compliance with the covenants against nuisance etc it would be unreasonable to oblige landlords to take on that risk??

    Bit of a perfect storm for local authorities, I am thinking, if so!!??

    Reply
    • Giles Peaker

      It is not about an application for housing, it is about specifically a homeless application under Part VII Housing Act 1988.

      Reply
      • Belinda Schwehr

        I am acknowledging the point made by Giles above that the case (both the new one and the old Garlick case) are about Part VII functions, not access to public housing. But the rationale is equally relevant, surely: lack of capacity to sign, because of lack of understanding about the obligations, so I am not understanding why that distinction matters, with respect? In both cases, what is offered is access to a tenancy, for which one needs capacity, to hold, validly.

        In Garlick, the House of Lords was considering the same question as that posed in this [Oxfordshire] case; that is to say whether a person who lacks capacity to enter into a tenancy agreement could apply under Part 7 of the 1996 Act. The House of Lords, Lord Griffiths, defined the nature of the duty at 516E-G:
        “….It is of the first importance to understand the nature of the duty imposed upon local housing authorities by Parliament. It is not a duty to take the homeless off the streets and place them physically in
        accommodation. The duty is to give them and their families the first priority in the housing queue ….”.

        [If only that were still the case, eh?]

        The ratio in Garlick (Lord Griffiths at 520) is (1) there is no purpose in making an offer of accommodation to a person who does not have the ability to understand the offer; (2) similarly, there is no purpose in such an offer to a person who cannot understand the responsibilities that would be involved; (3) in any event, Parliament has
        provided alternative provision under the 1948 Act. [now the Care Act]

        I can’t see why these quotations have not been thought equally to affect access to the allocations list and hence to public housing through Housing functions, personally. They also seem to suggest that yes, good old social care can sort out everyone else.

        I would point out that there is no such thing as a CoP guardian; there are deputies, or applicants for a single order given power to sign a tenancy for someone. Or a person might have a power of attorney if they had capacity to appoint one themselves. Guardians in Scotland have property and finance powers but not Guardians under the Mental Health Act in England, regardless of whether they are councils or private guardians.

        Reply
        • Giles Peaker

          Sorry, was hasty shorthand – deputy, yes.

          And there is still a big distinction (and one the courts would not want to lose, I think) between deciding on a Part VII offer, which may see the duty discharged if got ‘wrong’, and Part VI bidding under allocation scheme. I would not be unduly concerned about Garlick principles staying over into non-homeless housing issues.

  5. Miranda Dealler

    I know this is a housing site but this does seem a bit of a minefield. Like Bob (above) my daughter is in supported living though she cannot really “sign” her agreement. I have not agreed that she can sign and have her own bank account because I don’t believe her signature is meaningful and I think it leaves her open to financial abuse. Others living with her have personal bank accounts although their capacity would be less than hers and they have no near relative keeping an eye on them. This seems very common. I’m surprised the banks permit this

    I know that Giles is very critical of part-rent part buy arrangements. Again, I know of someone who has such an arrangement although their capacity is such that they need carers to put them to bed, wake them for breakfast and take them around all day. It is easy to see the advantage from the HA POV but less easy from the POV of the funding authority. I think this arrangement was previously funded by the Independent Living Fund.

    I understand and sympathise very much with the anxieties of those campaigning for independent and supported living but the answer cannot be to make vulnerable those who need support.

    Sorry, I have really got onto capacity rather than housing.

    Reply
    • Giles Peaker

      A COP guardian can enter a tenancy for the protected person. But yes, there are a lot of issues.

      Reply

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