Judge: Lady Justice Arden, Lord Justice Lewison, Lady Justice Asplin
Citation:  EWCA Civ 928
WB is a woman who applied to the W Council under Part VII of the HA 1996 in 2013 for accommodation on the basis that she had a priority need as a result of her mental disability. The W Council considered that she was in priority need but she had become homeless intentionally. WB appealed against that decision to the County Court. During that appeal she was found to lack capacity to litigate and to manage her property and affairs. The Official Solicitor was instructed to act as her litigation friend.
The procedural history of the proceedings before the County Court were somewhat complex, and need not detain us here, but ultimately her appeal was rejected on the basis that the Court was bound by the decision of R v Tower Hamlets LBC ex parte Ferdous Begum, reported under the name of a conjoined appeal about child applicants, R v Oldham Metropolitan Council ex parte Garlick  AC 509. This was a decision which set out that the priority need for housing for the disabled is set out in statuate “a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside’
The judgment itself held as follows:
Other people although vulnerable are nevertheless able to lead an independent existence, albeit sometimes in sheltered accommodation, these people also have the status of priority Judgment Approved by the court for handing down. WB v W DC need and can apply for assistance if they are homeless but not intentionally so. When they are made the offer of accommodation they can decide whether or not to accept it. But I can see no purpose in making an offer of accommodation to a person so disabled that he is unable to comprehend or evaluate the offer. In my view 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. … [Emphasis added]
In consequence Ms Begum was not eligible for housing assistance as a homeless person.
The decisions in Re Garlick and ex parte Ferdous Begum are reflected the ‘Homelessness Code of Guidance for Local Authorities’ published on 22 February 2018 (“2018 Code”) which at paragraph 18.8 provides that ‘An application can be made by any individual who has the mental capacity to do so.’
WB ran three arguments as two why the CA were not bound by the decision in ex parte Ferdous Begum: (1) that the exclusion of persons lacking mental capacity can be classed as an obsolete statutory provision (“the obsolescence argument”), or (2) that HA 1996, s 189(1) can be interpreted, using HRA, s.3 in a manner which puts applicants for priority housing with mental disability, which currently prevents them from being an applicant for priority housing, on the same footing as those by persons with no such disability (the “Human Rights Interpretation” argument), or (3) the effect of ex parte Ferdous Begum is simply to prevent a person from signing a tenancy agreement but allows them to make an application (the “Narrow Ratio” argument.)
The Court of Appeal rejected the obsolescence argument and the Human Rights interpretation argument on the basis of the doctrine of precedence and statutory interpretation (with Lord Justice Lewison dissenting).
Of most interest for our purpose sis the Narrow Ratio argument. It was argued (para 37) that “Convention jurisprudence would look with disfavour on any blanket exclusion of an application without taking account of their particular circumstances. In any particular case, it may be possible for the applicant to show that she has capacity to make an application and consider an offer of housing, but not capacity to enter into a tenancy agreement carrying legal obligations over a period of time.”
This is of course correct, as capacity is issue specific. Lady Justice Arden was unimpressed by this argument, primarily because it had not been run below. In refusing to consider the argument for that reason she stated:
. I accept that a person may have capacity to decide where to live but lack capacity to enter a tenancy. Indeed, the Court of Protection has issued guidance for cases where it is desired to enter into a tenancy agreement on behalf of a person who has capacity, for example, to apply for social security payments but not to enter into a tenancy agreement: see Applications for the Court of Protection in relation to tenancy agreements (updated February 2012).
Lord Justice Lewison engaged with the argument more substantively. He held that the question, was whether it is “possible to interpret the Housing Act 1996 as enabling an application to be made by or on behalf of a person without mental capacity?” Butler-Sloss LJ in the Court of Appeal in ex parte Fergus Begum (with whom half the House of Lords Judges agreed) had considered this aspect holding that an application could be made “by someone on behalf of a person who is entitled to make an application but is unable through mental incapacity to make or consent to the making of an application. In the latter case the writer or maker of the application on behalf of another must demonstrate reasonable grounds for making the application and for acting on behalf of the actual applicant and that he is acting bona fide in the interests of the person unable to act without such help. An application by a well-meaning busybody would not be an acceptable application under section 62”
Lord Justice Lewison posed the question as to whether WB fell “within Butler-Sloss LJ’s description of how an application by or on behalf of such a person may be made?” At paragraph 68, he held as follows:
Lady Justice Arden has adverted to the possibility of the appointment of a deputy or the execution of a lasting power of attorney. A deputy may make decisions on behalf of the person without capacity to the extent that his or her appointment allows. As Lady Justice Arden points out those powers may include a power to decide where a person is to live (section 17 (1) (a)) and a power to acquire property on his or her behalf (section 18 (1)). If authorised to do so by his or her appointment a deputy could make the application, decide whether to accept offered accommodation, and enter into a tenancy on behalf of the person without capacity. However, the mere fact that the Court of Protection authorised a council official to sign a tenancy agreement is not, in my judgment, enough. That is no more than an administrative act; and does not amount to decision making. There is, therefore, no one in this case who has the power to make such decisions on WB’s behalf.
It is somewhat unsatisfactory that the Housing Act, which specifically provides that those with a mental disability qualify for priority need housing, then disqualifies a whole category of those people on the grounds of capacity. We suggest that this issue requires consideration in the Supreme Court were the consideration in respect of the precedent value of previous case law will of course be different.
That point aside, we note that the Court of Appeal appear to have been somewhat influenced by the procedure for applying to the Court in respect of tenancy agreements by the guidance put before them entitled Applications for the Court of Protection in relation to tenancy agreements (updated February 2012). However:
For those who want to read more about this thorny issue, we recommend also the blog post by Nearly Legal.