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Homelessness – capacity to apply


R(Uddin) v Southwark LBC (2019) EQHC 180 (Admin) (Not on Bailii. We’ve seen a copy of the judgment. Also reported in the March 2019 Legal Action Housing: recent developments).

Mr U is a single man. In May 2018, he was assaulted and suffered a serious brain injury. In October 2018, the hospital assessed him as for discharge. Mr U was homeless and applied to Southwark. He was offered temporary accommodation in a hostel. Mr U visited the hostel, which was in a poor condition, and recognised a resident as the person who assaulted him, so he refused it. Mr U remained in hospital.

Mr U then brought a judicial review and sought an interim order that he be provided with ordinary housing accommodation and a care and support package. This was the expedited hearing for that interim order.

The treating consultant neurologist had initially written, concerning the hostel offer:

“One, Mr Uddin has suffered significant brain damage, is a vulnerable adult and requires appropriate accommodation and support in the light of this. It is completely inappropriate for him to be placed in a hostel. Because of his brain injury, cognitive problems, impaired judgment and emotional volatility, the risk of him coming to harm in such an environment would be extremely high. I find it incredible that anyone could think this was appropriate. I already expressed this view in
a previous letter which Mr Uddin brought with him to the appointment. It is disappointing to find this was simply disregarded.

Secondly, I have this morning seen a communication from Mr Uddin’s allocated social worker [and the name is given] saying that he wishes to view the hostel himself to ascertain its condition before progress can be made. In my view, this is irrelevant. It is abundantly clear that a hostel placement is completely inappropriate should efforts be directed to securing appropriate accommodation.

Thirdly, Mr Uddin has now had many months of assessment on a specialist neuro-rehabilitation unit. We provided detailed reports of his problems and the ways in which his brain injury has affected him. My strong impression is that those dealing with this case outside hospital have not taken on board that this man is brain damaged and vulnerable and cannot be treated like any other person seeking accommodation.

Four, and relevantly, a formal assessment conducted by members of our team has shown that Mr Uddin does not currently have the capacity to make decisions about his discharge accommodation. He does not understand his brain injury and is unable to properly weigh or assess information he is given. Therefore, it is quite wrong that he has been asked twice to attend the housing office and make on the spot decisions about accepting unsuitable accommodation.”

Mr Justice Dingemans felt that this raised issues of Mr U’s capacity and had asked his solicitors for further information. The consultant wrote to the solicitors, saying:

“I remain of the view that he does not have the mental capacity to make general decisions regarding discharge destination, because he does not have any insight into his ongoing cognitive impairments. He does not understand that he will need care and support for these after discharge, meaning he does not demonstrate an ability to weigh up information relevant to these decisions; one of the criteria for having capacity to make a decision. However, when presented with a more specific decision, e.g. to say yes or no to a placement option that his treating team and family have agreed as suitable, he does demonstrate the capacity to make these more limited and specific decisions. On this basis, I would say Mr Uddin does currently have the capacity to understand the obligations and responsibilities of a tenant to understand and evaluate an offer of accommodation, provided that it is a specific offer.”

Dingemans J did not consider that this was sufficient for him to be satisfied that he could make the order sought.

I am concerned about whether Mr Uddin has capacity to make the application for homelessness in circumstances where Dr Medford has drawn a distinction between evaluating the obligations of a tenancy and evaluating a single offer on the one hand and making a distinction between, for example, hostel accommodation, residential accommodation or ordinary housing accommodation on the other hand. It is not apparent to me from the materials that he does have that capacity and therefore the application cannot be made by him acting alone. In those circumstances, I do not propose to make the order.

(We should note that the background to the decision also included an arrangement having been made for Mr U to move for at least a 12 weeks period to a Care Home.)

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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