Last night, I was in Leeds at the wonderful Centre for Law and Social Justice, and discussed with some scholars and lawyers (over a few drinks) the way in which housing law appears to have become its own isolated and insular sub-discipline.  This was particularly in the context of human rights and capacity decisions.  I had the Court of Appeal’s decision about capacity to make a homelessness application in mind: WB v W District Council [2018] EWCA Civ 928.  In this decision, by different routes, the Court of Appeal has held that the House of Lords decision in R v Tower Hamlets LBC ex parte Ferdous Begum [1993] AC 509 remains good law, thus effectively putting to one side the significant developments in what I would call the governmentality of persons without capacity.  The House held in Begum and its conjoined case of Garlick (application by a minor under 16) that  “… it is implicit in the provisions of the Act that the duty to make an offer is only owed to those who have the capacity to understand and respond to such an offer and if they accept it to undertake the responsibilities that will be involved”.  They could not be regarded as a person in priority need in their own right.  As a result, such persons could not make an application for homelessness assistance unless they could instruct an agent to do so on their behalf (which raised similar capacity issues).

I suspect that the Court’s decision in WB will be on all legal methods type undergrad courses because it is about the doctrine of precedent, statutory interpretation, and the proper effect of s. 3, Human Rights Act 1998.  While there was unanimity in outcome, Arden and Asplin LJJ took a much narrower approach on those issues than Lewison LJ.  But, it is also about the ways in which these kinds of questions fail to take account of the context of law – the UN Convention on the Rights of Persons with Disabilities and developing appreciations about questions of “capacity”, together with the messages from the Independent Living movement.  The world moving on, however, is not sufficient for the Court of Appeal to disapply the doctrine of precedent.

Arden LJ, with whom Asplin LJ agreed, took the points on statutory interpretation and the doctrine of precedent narrowly.  They argued that, since Ferdous Begum, the Act had been subject to Parliamentary oversight, most recently of course in relation to the 2017 Act, but also Part 7, Housing Act 1996 was to be interpreted in the same way as its predecessor.  Priority need remained a key concept (or obstacle, depending on how you look at it).  As a result, the capacity threshold was not “obsolete” (in terms of the Barras principle of statutory interpretation, ie Parliament is presumed to have chosen that the same meaning should apply in legislation re-enacting the previous legislation or similar legislation).  Arden LJ put it like this, at [30]:

To interpret Part VII of the HA 1996 afresh would not be to interpret those provisions but to give them a meaning which it is clear from the legislative history is contrary to that which Parliament intended.  The absence of a Parliamentary intention to attach a Convention-compliant interpretation to legislation is not a bar to the courts adopting a Convention-compliant interpretation under HRA, s 3, but a distinction must be drawn between that situation and one in which the Convention-compliant interpretation has been rejected by Parliament by express words or other inconsistent legislative action.

I am afraid that Arden LJ also attached what she called “significance” to the fact that the provision of social housing involves considerable public resources.  It’s not that I disagree with that, but that it takes little account of the diverse ways in which local authorities can discharge their obligations.

On the s. 3, HRA argument that the Court of Appeal should adopt a convention-complaint interpretation of legislation so far as is possible, Arden LJ said:

While the Court is under a duty to apply HRA s 3 if it is possible to do so – that means that the court must critically examine any objections to performing a Convention-compliant interpretation –  once it is found that there is an objection, that objection takes precedence over the interpretive duty. Put another way, it is not the function of section 3 to require the courts to apply a Convention-compliant interpretation if other principles of interpretation prevent it from doing so.

This is where Lewison LJ departed from Arden and Asplin LJJ.  In an interesting and brave judgment (in which it is clear that he had his mind changed), he took the view that s. 3, HRA was a “strong obligation” which meant that the Court was not bound to follow Ferdous Begum.  The cases he considered were not exactly compelling, but, as Lord Bingham said in ex p Sheldrake, the various judicial glosses expressing the restriction on s. 3 (“such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation”), do not supplan the statutory words, ie “so far as it is possible to do so”.  Therefore, Lewison LJ asked himself the following, at [65], “The question, then, is: is it possible to interpret the Housing Act 1996 as enabling an application to be made by or on behalf of a person without mental capacity?”.  He noted that, although simplistic, the tally of judges in the superior courts in Ferdous Begum was 4:4 as to whether such an interpretation was possible, and “In those circumstances I find it impossible to say that the construction for which WB contends is not a possible one” ([67]).

As regards whether a Court of Protection appointed Deputy could make the application on behalf of an applicant, his view was limited to the facts of this case.  The terms of the appointment were narrow and limited to entering into a tenancy agreement on WB’s behalf provided it was in accordance with her wishes and feelings.  Lewison LJ’s view of that appointment was:

If authorised to do so by his or her appointment a deputy could make the application, decide whether to accept offered accommodation, and enter into a tenancy on behalf of the person without capacity. However, the mere fact that the Court of Protection authorised a council official to sign a tenancy agreement is not, in my judgment, enough. That is no more than an administrative act; and does not amount to decision making. There is, therefore, no one in this case who has the power to make such decisions on WB’s behalf.

This is a matter of some constitutional importance and, given the difference of opinion on the ambit and effect of s 3, as well as the effects of the decision on the dignity of WB and other persons with disabilities who may lack capacity, it is properly a matter for the UKSC.  In the meantime, advocates in the CoP may wish to consider broadening the terms of a Deputy’s appointment.