2012 02 Incapacity

Thursday 1 March 2012

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K v LBX & L(by his litigation friend the Official Solicitor) & M [2012] EWCA Civ 79 (Thorpe LJ, Black LJ and Davis LJ): L was a 28-year old man with a mild mental retardation such that he lacked capacity. He had lived with his father, K, and his brother since 2001 (save for a five month period in local authority care). It was agreed between the family and the local authority (LBX) that L should be accommodated in the long term in the care of the local authority. The local authority had proposed a trial period of accommodation. K had objected on the grounds that it was too soon to move L. At first-instance Theis J had concluded that it was in L's best interests for the trial plan to start. K appealed, submitting that Theis J should have taken as her starting-point L's right to respect for his family life at Article 8(1) and only then applied the best interests test. The Court of Appeal dismissed the appeal. All three Judges gave judgements. Each of them found that Judges should apply the various tests required – the best interests check-list at s.4 MCA or the welfare check-list in Children Act cases together with Article 8 – with a degree of flexibility. Black LJ and Davis LJ held that there was no need to move to the creation of a legal stating point. Thorpe LJ held that the best interests checklist should be the starting point and that a Judge should then ask whether the resulting conclusion amounts to a violation of Article 8 and whether that violation is nonetheless necessary and proportionate. For the judgement click here.

Wychavon District Council v EM (HB) [2012] UKUT 12 (AAC) (Judge Mark): EM was a profoundly physically and mentally woman aged 20. She had lived with, and been cared for by, her parents since birth. Her parents had constructed an annex to their home for her to live in, funded by way of a mortgage. This had severely stretched their financial resources. Judge Mark had previously found that EM was not capable of entering into a tenancy agreement and consequently could have no liability to pay rent to her parents, so as to entitle her to claim housing benefit. On a request to review that decision, he set it aside. He held that EM had a liability to make payments in respect of the annex under s.7 MCA: “if necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them”. He held that the accommodation provided in the adapted annex was reasonably necessary having regard to EM's needs and resources. For the judgement click here.

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