Capacity to make a homeless application

Friday 22 June 2018

WB (a protected party through her litigation friend the Official Solicitor) v W District Council [2018] EWCA Civ 928, 26 April 2018

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WB (a protected party through her litigation friend the Official Solicitor) v W District Council [2018] EWCA Civ 928, 26 April 2018

WB initially applied for homelessness assistance in 2013. She was found to have a priority need but to have become homeless intentionally. That decision was quashed on appeal following which a fresh review was carried out. The fresh review resulted in a further negative decision which led to a second appeal.

That appeal was adjourned, following a finding by the Circuit Judge hearing the appeal, that WB lacked the capacity to litigate. As a result, the Official Solicitor was appointed on her behalf and a separate set of proceedings were issued in the Court of Protection. In those proceedings, a finding was made that WB lacked the capacity ‘to make decisions about where she should live, her care needs, and to enter into a tenancy agreement’.

Following this the homelessness appeal was reinstated and then dismissed, as a result of the finding that WB lacked capacity. The Circuit Judge held that the fact that WB lacked the capacity to make decisions about where she should live meant that she lacked the capacity to make a homeless application. In reaching this decision he followed the decision of the House of Lords in R v Tower Hamlets LBC ex parte Ferdous Begum [1993] AC 509.

In that case the House of Lords held that no duty was owed under the homelessness legislation (then contained in the Housing Act 1985) ‘to persons so disabled that they have neither the capacity to make an application themselves nor to authorise an agent to make it on their behalf’. In the words of Lord Griffiths (with whom the majority agreed) ‘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’.

WB appealed to the Court of Appeal. The issue for the court was whether the decision in Ferdous Begum remained good law, or whether it had been overtaken by subsequent legislative changes in the form of the Human Rights Act 1998 and the Mental Capacity Act 2005.

The court held that Ferdous Begum remained binding. In the judgment of Arden and Asplin LJJ, the interpretation of the legislation in that case had not been rendered obsolete by subsequent legal developments, so as to justify the court in adopting a different interpretation. In particular, it had not been implicitly overruled by later case law or statute. And in view of the fact that a deputy could be appointed under the Mental Capacity Act 2005 to make a homeless application on behalf of a person lacking in capacity, an alternative interpretation was not required, under s3 Human Rights Act 1998, to ensure compliance with the ECHR. Lewison LJ agreed with the result but for different reasons.

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