Mental Capacity Case

R(BL) v LB Islington

Andrew Thomas QC (sitting as a Deputy High Court Judge)


This case concerning litigation capacity in the judicial review context is not merely relevant to such cases but also poses interesting question for proceedings before the Court of Protection.

The Claimant was a litigant in person with diagnoses of autistic spectrum disorder, emotionally unstable personality disorder, anxiety and depression. She brought a claim against her local authority for its failure to award her medical points under its Housing Allocation Scheme while at the same time pursuing a claim against her former landlord in the County Court.

The Defendant having raised the issue of the Claimant's capacity to conduct proceedings in its Summary Grounds of Defence, Andrew Thomas QC, sitting as a Deputy High Court Judge, considered and determined the matter, noting explicitly that:

I have also had the advantage of hearing from the Claimant herself. That has informed my decision on the issue of capacity, including whether adjustments to assist the Claimant's understanding may help overcome her impairment for the purpose of these proceedings (paragraph 14).

The procedural history of the case is unusual (see para 15 of the judgment). The Claimant had brought a County Court claim against her landlord which had been struck out on the basis that she lacked capacity to conduct proceedings, although the judgment does not give any further details as to why steps had not been taken in those proceedings to appoint a litigation friend.  That decision was set aside on appeal. In the interim, the Defendant in the judicial review proceedings, unaware of the successful appeal, relied on the strike-out and evidence therein of the Claimant's lack of capacity to conduct proceedings in the ongoing judicial review proceedings. As a result, the judicial review claim was stayed pending the nomination of a litigation friend or the filing of further evidence to show that the Claimant had the requisite capacity to conduct proceedings.

Andrew Thomas QC considered the evidence on which the conclusion that the Claimant lacked capacity was based: a single pro forma GP decision noting that the Claimant was "unlikely to understand the purpose or process of the legal action, why there is a court hearing, what is required of her in Court and what the role of the court members are" (paragraph 19).

Considering the relevant law under the MCA 2005 and Rule 21.1 of the CPR (but without reference to either Masterman-Lister or Dunhill v Burgin), Andrew Thomas QC noted the difference in roles between a legal representative and a litigation friend and observed that "Having discussed this with the Claimant during the hearing, I am satisfied that she understands the distinction. The practical difficulty which she would encounter is that there is no relative or other trusted person who might volunteer to act as her litigation friend, hence her need for professional legal advice" (paragraph 21).

Andrew Thomas QC noted the Claimant's own recognition of the difficulties arising from her disabilities, notably her difficulties in making and maintaining relationships and working with others and the need for appropriate reasonable adjustments (paragraph 23). Considering the GP's evidence, he noted the absence of any consideration of reasonable adjustments by him. He concluded (at paragraphs 27-9):

  1. In this case, the Defendant is a local authority whose staff are familiar with the Claimant and already involved in providing her with support services. Their staff are experienced in communicating information in a manner which is adjusted to meet the needs of vulnerable service users. They are represented in these proceedings by Counsel who has been able to assist the Claimant to understand today's proceedings.
  1. Addressing the specific concerns raised by the Claimant's GP, I am satisfied on the evidence of her written and oral submissions that the Claimant understands the purpose of these proceedings, namely that they concern a challenge to a decision on her priority for housing allocation. She knew that the hearing before me was her application to set aside a previous order of the Court. Although she sometimes required assistance to maintain focus, the Claimant was able to respond to all of my questions by providing relevant answers and giving relevant information. She had no difficulty in identifying the different participants in the Court room. I also note that the Claimant is educated to degree level. Although English is not her first language, she is both articulate and able to follow the proceedings when others are speaking.
  1. The Claimant has rightly identified that the key issue is that the Court must take all practicable measures to ensure her access to justice. Given the difficulties in identifying a litigation friend, it is highly likely that the practical consequence of refusing her application would be that the proceedings would be stayed without any decision being made on the merits of the claim. In any event, the Court should not intervene to deprive the Claimant of her autonomy to take decisions unless it is necessary to do so.

This case is interesting, for the coincidence of County Court and Administrative Court proceedings, for the arguments (rightly) advanced by the Claimant herself as to the requirements upon the court to support her, and also for the use of judicial conclusions as to capacity in the absence of supporting medical evidence. The sole "expert" evidence appears to have been that of the GP concluding the Claimant lacked litigation capacity; the only party asserting she was capacitous was the Claimant herself. In this situation, the judge took on the role of assessor and drew appropriate conclusions on the basis of the Claimant's presentation in court. In this case, doing so on its face both served the Claimant's interests and did not to lead the judge into dangerous terrain.   As noted in the report upon AH, there may be other situations in which it may be more difficult for a judge simply to rely upon their own skills in interpreting the presentation of the person.