Housing litigation, possession claims, injunctions and homelessness applications
Assessing capacity can be complex and needs to be dealt with carefully. Russell James and Natasha Bellinger explain how housing lawyers can protect their clients’ interests in cases where capacity issues arise.
‘Need to know’ is a regular series where leading practitioners set out the key legal knowledge lawyers need to know about an area of law outside their immediate specialism.
Housing law often involves dealing with some of the most vulnerable people in society, where issues of mental health commonly arise. This might be in litigation, such as a possession claim concerning hoarding or the state of a property, or where a person is unable to cope, for example, with their day-to-day affairs and has rent arrears, or an individual’s anti-social behaviour attributable to a mental health condition leading to a possession claim. Alternatively, it could be in advising a homeless client or housing applicant, particularly where there is overlap with the Care Act (CA) 2014. The housing practitioner therefore needs to be aware of how mental health affects their client and where the question of capacity may need to be considered and explored.
The starting point is the presumption of capacity in Mental Capacity Act (MCA) 2005 s1(2) (see box below), which can only be displaced by evidence establishing that the individual lacks capacity. In the context of housing, the question of capacity is likely to arise either by a social landlord identifying it as an issue as part of its compliance with the Pre-Action Protocol for Possession Claims by Social Landlords (specifically, para 1.5) or by the practitioner raising it. In this latter respect, once a legal adviser reasonably entertains a doubt about an individual’s capacity, it is their duty to raise it and to satisfy themselves of the position (
RP v Nottingham City Council and the Official Solicitor [2008] EWCA Civ 462 at para 99). Once raised, it is for the court to investigate the issue of capacity, and regardless of whether or not it is contentious, this will almost certainly involve obtaining medical evidence (
Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889 at para 17).
Mental Capacity Act 2005
The MCA 2005 governs who lacks capacity and how decisions can be made on their behalf. Section 2(1) states:
[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
This wording makes it expressly clear that when considering whether a person lacks capacity and is therefore unable at law to make a decision on an issue, it is necessary to focus on the specific issue at the crucial point in time. As Lady Hale explained, ‘capacity is to be judged in relation to the decision or activity in question and not globally’ (
Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18 at para 13), hence an individual may – and often will – have capacity in respect of certain issues but not others. In litigation, an individual might have capacity in respect of a substantive issue yet lack capacity to conduct litigation in respect of that issue. In the context of civil litigation, CPR Part 21 sets out the safeguards and protections for those who lack capacity to conduct litigation, adopting (at r21.1(2)) the same definition for lack of capacity as that contained within the MCA 2005. Key to this is the need to appoint a litigation friend where a person lacks capacity since failure to do so will mean that any steps taken will be a nullity, unless expressly authorised by the court (r21.3(4)).
Capacity and litigation
The Civil Justice Council is
currently considering the procedure for determining mental capacity in civil proceedings with a view to recommending changes in the Civil Procedure Rules 1998 (CPR) and their practice directions. However, in the meantime, practitioners may wish to consider the following points. First, in the quest to ascertain whether or not a client lacks capacity, the best evidence is likely to be an expert medical opinion, which will usually be in the form of a completed
certificate as to capacity to conduct proceedings and may be supplemented by a more detailed report to address the broader questions of capacity, beyond litigation capacity. At the initial stages, if seeking an opinion on matters other than capacity, a balance may need to be struck between obtaining sufficient information to address the issue of litigation capacity while bearing in mind that if the client lacks capacity, it will be the litigation friend in due course who will need to give instructions on wider issues and potentially sensitive disclosure points. Second, it is important to consider the content of any expert evidence and in particular:
•Has the expert specifically considered capacity to litigate? While it may be necessary to explore whether a client has capacity in respect of other substantive issues as part of a case, at the initial stage it is capacity to conduct litigation that is of primary importance, as this should be identified and clarified at the earliest reasonable opportunity and should not be conflated with other issues or be generalised. Moreover, the test is whether or not the client has capacity to conduct the case they in fact have, rather than the case as formulated by their lawyer (
Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18 at para 18).
•Has the expert considered the factors in MCA 2005 s3(1), namely, whether the client is unable to: (a) understand the information relevant to the decision; (b) retain that information; (c) use or weigh that information as part of the process of making the decision; or (d) communicate their decision (whether by talking, using sign language or any other means)? In our experience, there have been occasions where the factors themselves have not been adequately explored or addressed in expert evidence, which may lead to an incorrect assessment of capacity. It is important, therefore, to consider the use of CPR Part 35 questions and further clarification from an expert, particularly if a practitioner has grounds for concerns about capacity.
•Have all practicable steps been taken to help the client to be capacitous (see MCA 2005 s1(3))? For example, have matters been explained simply; if there is a good time of day or environment for the client, have they been assessed then and there; and are there any aids that might assist?
Third, occasionally, a situation may arise where the client refuses to engage with a medical assessment of their capacity. In such cases, the issue cannot simply be ignored, nor is an unless order a permissible approach (
Carmarthenshire CC v Lewis [2010] EWCA Civ 1567); after all, the refusal to engage may be attributable to a lack of capacity. Instead, the court will need to determine the issue based on other evidence, which might include: consideration of the medical records; obtaining a report from another medical practitioner who knows the client; consideration of statements from third-party professional agencies or even friends and family; and/or hearing evidence from the individual themselves.
A final point on the approach to capacity concerns how to deal with clients with fluctuating capacity. This is not a straightforward issue but assistance can be found in two decisions of Sir Mark Hedley (
A, B and C v X and Z [2012] EWHC 2400 (COP);
[2012] MHLO 112 and
Cheshire West and Chester Council v PWK [2019] EWCOP 571See February 2020 Legal Action 18.) in which he drew a distinction between capacity to undertake a specific task, such as make a will or a power of attorney, and the position in relation to a continuing state of affairs, such as management of one’s affairs or conducting litigation, where the demands and decision-making necessary will be multiple, sometimes unpredictable, and occasionally urgent. In such cases, it is permissible to reach the conclusion that the client lacks capacity by adopting a ‘longitudinal view’ and a litigation friend can accordingly be appointed. This is therefore an issue that, in cases of fluctuating capacity, the practitioner will need to consider and invite any expert instructed to address.
Capacity and possession claims, injunctions and homelessness applications
Possession claims involving individuals with chronic mental health conditions where wider issues of capacity commonly arise include, among others, hoarder cases and those involving anti-social behaviour where the conduct is attributable in whole or in part to the tenant’s condition. In these cases, consideration may need to be given to the support, assistance and care being provided to the tenant, the medication prescribed, and whether or not they need to be rehoused temporarily or permanently. These are issues in respect of which the tenant may or may not lack capacity and that may need to be explored as part of, or to properly deal with, the possession proceedings. In particular, the adviser is likely to need to consider some or all of the following:
•Whether any medical expert instructed should be asked to opine on whether or not the client lacks capacity in relation to one or more of these substantive issues.
•Any assessment that has been undertaken pursuant to CA 2014 s9. Such assessments may be crucial in ensuring that the client receives the support and assistance needed to sustain their tenancy and successfully defend the claim. This in turn may require any assessment to be scrutinised and/or challenged, with not uncommon problems being that an assessor may state that the individual is: (a) simply making unwise decisions when in truth they lack capacity; or (b) refusing to engage with the assessment when they lack capacity to refuse, which is an impermissible basis for not carrying out an assessment where such an assessment is in the best interests of the client (CA 2014 s11(2)). It may therefore be necessary to consider whether further action is necessary in respect of any CA 2014 assessment, in correspondence, in evidence or by judicial review proceedings.
•Whether proceedings are likely to be required in the Court of Protection for the making of declarations, decisions in relation to personal welfare, decisions in relation to property and affairs, or the appointment of a deputy. Such proceedings may be necessary to decide, for example, where the client should live (temporarily or permanently), whether treatment should be continued or started, or whether to surrender a tenancy and/or enter into a new tenancy of alternative accommodation. Moreover, if proceedings in the Court of Protection are required, it may be necessary or desirable to adjourn or stay the possession proceedings pending the conclusion of the Court of Protection proceedings as they may provide the most effective route to addressing the underlying concerns in the possession claim. Failure by a landlord to agree to an adjournment or stay may necessitate an application or need to be deployed in support of a disability discrimination or public sector equality duty
2Equality Act 2010 s149. argument.
In relation to injunction applications, capacity is important in two fundamental respects. First, following the decision in
Wookey v Wookey [1991] 3 WLR 135, an injunction should not be granted against a person who is incapable of understanding its terms or understanding what they were doing or that it was wrong, by reason of incapacity. Second, an injunction should not be imposed on a person who lacks capacity to comply with it (
R (Cooke) v Director of Public Prosecutions [2008] EWHC 2703 (Admin); December 2008
Legal Action 25 at paras 12 and 20)
3This case concerned anti-social behaviour orders, but there is no reason that the principles should not be equally applied to injunctions, particularly anti-social behaviour injunctions.).
This second proposition is perhaps more nuanced, with a distinction being drawn between someone who is more likely to breach an order because of their condition(s), such as a personality disorder, and a person who lacks capacity to comply with an order. In the former case an order can be made, while in the latter case a person should not be made the subject of such an order. In addressing capacity for these purposes, Dyson LJ has stated that medical evidence from a psychiatrist as opposed to a psychologist or psychiatric nurse should be obtained (R (Cooke) v Director of Public Prosecutions at para 12).
In the field of homelessness law, it has long been established that a person does not have capacity to make a homelessness application if they lack capacity to understand and respond to (accept or reject) an offer of accommodation and, if they accept it, to undertake the responsibilities that will be involved (
R v Tower Hamlets LBC ex p Ferdous Begum [1993] QB 447). This, the Court of Appeal has subsequently held, remains the correct legal position notwithstanding the subsequent enactment of Housing Act 1996 Part 7 (the current homelessness provisions) and the Human Rights Act 1998 (
WB v W District Council [2018] EWCA Civ 928; June 2018
Legal Action 34).
There are, however, two important points for the practitioner to bear in mind when advising in respect of homeless clients who may lack capacity. The first is that this is an area where the potential to conflate issues of capacity seems particularly rife. Local housing authorities have, on occasion, seized on evidence that an applicant lacks capacity to conduct litigation or in some other respect relevant to possession proceedings and equated this with lack of capacity to make a homelessness application. It is important to remember that these are not the same and that capacity is both time- and issue-specific. Therefore, it may be necessary, if this issue is raised, to obtain evidence specifically dealing with whether the applicant lacks capacity to make a homelessness application (the points raised in Ferdous Begum).
Linked to this and underlining the time-sensitive nature of capacity, in a particular case, an applicant may seek to argue that they were not intentionally homeless because the act or omission relied on was the result of limited mental capacity or a temporary aberration of mind caused by mental illness (see
Homelessness code of guidance for local authorities, Department for Levelling Up, Housing and Communities, 22 February 2018; last updated 10 June 2024,
para 9.17(c)). This is not mutually exclusive with the applicant having capacity to make a homelessness application.
The second point of importance is that in a case involving a person who does lack capacity to make a homelessness application, consideration may need to be given to an application to the Court of Protection for a deputy to be appointed for the purpose of and with specific power to make a homelessness application. This is an option that the Court of Appeal has considered (obiter) to be available to a person lacking capacity to make a homelessness application in their own right and may provide an answer for an applicant who, while lacking capacity, does not need supported accommodation.