In WB v W DC (2018) EWCA Civ 928, the Court of Appeal revisited the question of whether a person without capacity to make choices about their accommodation can make an application for homelessness assistance.  The House of Lords in R v Tower Hamlets LBC ex p Ferdous Begum (1993) AC 509 (linked with Garlick, in which it was argued that an application could be made by minors) held that a person had to have capacity to “comprehend or evaluate” an offer of accommodation and could not be treated as a person in priority need.  As Lord Griffiths put it, “In my view 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.” There is a personal element to this issue – Ferdous Begum and Garlick were cases which first captured my academic interest in homelessness law back in 1992, mainly because the decision seemed wrong discursively (even then) and also because of the real difficulties which occur in practice in the distinction between homelessness and care duties.

Since Ferdous Begum, there have been at lest three significant legal developments, which emphasise a discursive shift in the treatment of persons with disabilities: the Human Rights Act 1998; the Mental Capacity Act 2005 (including the statutory power under ss. 17-9 for a court appointed deputy to act as a person’s agent in relation to decisions as to where a person is to live); the Equality Act 2010; and the UN Convention on the Protection of the Rights of Persons with Disabilities in 2009 (for the purposes of UK law).  The question for the Court of Appeal was whether these subsequent laws rendered the Ferdous Begum decision obsolete, or whether the Court was required to read and give effect to the relevant provision of Part 7 (concerned with priority need) so that persons with mental disabilities are treated equally with those without such disabilities (the s. 3 question).

Before the Court of Appeal, these important questions of principle and rights became subsumed within a question of high constitutional principle as to whether the Court of Appeal could overrule a House of Lords judgment.  The Court was agreed that Ferdous Begum could not be said to be “obsolete”.  This was on the basis of the Barras principle: “… where the courts have interpreted a term in an enactment and Parliament makes further legislative provision using the same term, it is presumed to have chosen that the same meaning should apply in legislation re-enacting the previous legislation or similar legislation” [27], Arden LJ.  Parliament had made changes to Part 7 and equality law over the years after Ferdous Begum and had not affected or changed that decision.  That seems to me to be a very narrow reading of that welter of subsequent legislation, bearing in mind that the decision in Ferdous Begum was itself based on an implication.  But, so be it.

The question of constitutional principle arose on the s. 3 question.  S. 3 of the HRA requires that legislation be read as being compatible with Convention rights “so far as it is possible to do so”.  Although they differed on the outcome, in fact the Court of Appeal agreed that it (ie the court of Appeal) was under a duty to consider compatibility and to reach its own conclusion on s. 3.  Lewison LJ appears to have found this question rather more difficult but, following an extensive survey of the surprisingly unclear law, found that the s. 3 obligation was a strong one, which required consideration where the law had changed following the 1998 Act (drawing force from the judgment of Lloyd LJ in Desnousse v Newham LBC (2006) EWCA Civ 547, (130)).

Arden LJ, with whom Asplin LJ agreed, held (at (35)) that s. 3 could not be used because it was not “possible to do so” in this case because, other than the powers of a court appointed Deputy, it could not overcome the general principle that a person without capacity cannot appoint an agent; and, even if that were possible, it could not overcome the Barras principle.  She 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”.

On the other hand, Lewison LJ, at (65) posed the question, “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?” (original emphasis).  The emphasis and the question as posed are rather different from the approach taken by Arden LJ.  And, Lewison LJ then pointed to the fact that, when the judgments of the Court of Appeal and HL in Ferdous Begum were all considered, “Although it may be simplistic, the tally of judges in the higher courts is 4:4 for the opposing constructions. In those circumstances I find it impossible to say that the construction for which WB contends is not a possible one”: (67).  On the facts of this case, no deputy had been appointed by the Court of Protection – a power had been given to a council official to sign a tenancy agreement, but that “… is not, in my judgment, enough. That is no more than an administrative act; and does not amount to decision making” ((68)).  Therefore, Lewison LJ agreed in the outcome of the matter.

There can be no clearer case for the UKSC to consider, both as a matter of constitutional principle as well as on the narrow question.  Brenda Hoggett’s text on Mental Health Law, which went through a few editions before, unaccountably, its final edition in 1996, will likely be indispensable to Counsel on both sides.  It might also be considered rather odd that, as Hale J (sitting in the Court of Appeal) found in Kingston RLBC v Prince (1999) 31 HLR 794, a 10 year old can succeed to a tenancy, but according to Ferdous Begum cannot apply for one.