Homeless people who apply for housing must have the ability to make their own choices and to enter into a tenancy – but what happens if an applicant lacks the mental capacity to do either of those things? The Court of Appeal considered that issue in a decision that will be required reading for social housing professionals.
The case concerned a mentally ill woman who was found by a judge to lack the mental capacity to make an application for housing to her local authority under Part VII of the Housing Act 1996. She was thus not eligible for housing assistance as a homeless person.
The judge considered himself bound by the House of Lords’ 1993 decision in the case of R v Tower Hamlets LBC ex parte Ferdous Begum. In that case, the Law Lords held that a homeless person with mental disabilities who could not understand the choices that she had to make when offered accommodation could not be treated as a person in priority need.
In dismissing the woman’s appeal against the judge’s ruling, the Court found that, on a correct application of the doctrine of precedent, it was indeed bound by the House of Lords’ decision, which could not be viewed as obsolete. The Human Rights Act 1998 placed a duty on judges to, so far as is possible, interpret statutory provisions so as to achieve compliance with the European Convention on Human Rights. However, in the particular case, there was no such possibility.
The Court noted, however, that housing associations provide an alternative pool of properties that are available to people who lack capacity. The Mental Capacity Act 2005 also empowers judges to make decisions about the personal welfare or property and affairs of such persons, and to appoint deputies to make decisions on such matters on their behalf. Such deputies have the power to decide where persons without capacity should live and to acquire property on their behalf.