WB (a protected party through her litigation friend the Official Solicitor) v W District Council
| Jurisdiction | England & Wales |
| Judge | Arden LJ,Lady Justice Arden,Lady Justice Asplin,Lord Justice Lewison |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWCA Civ 928 |
| Date | 26 April 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2017/0243 |
[2018] EWCA Civ 928
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Norwich Combined Court Centre
His Honour Judge Moloney QC
A00NR652
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Lewison
and
Lady Justice Asplin
Case No: B5/2017/0243
and
Martin Westgate QC & Michael Marsh-Hyde (instructed by Shelter Legal Services) for the Appellant
Wayne Beglan (instructed by W Council) for the Respondent
Helen Mountfield QC (instructed by the Equality & Human Rights Commission) filed written submissions
Hearing date: 24 January 2018
Judgment Approved
This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996 (“HA 1996”).
A local authority owes a housing duty to a person in this situation to secure accommodation for her. The duty is helpfully summarised in the Homelessness Code of Guidance for Local Authorities (“the Code”) published on 22 February 2018 (“2018 Code”) (an updated version of the Code available at the hearing of this appeal):
Main housing duty
15. If homelessness is not successfully prevented or relieved, a housing authority will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally. Certain categories of household, such as pregnant women, families with children, and households that are homeless due to an emergency such as a fire or flood, have priority need if homeless. Other groups may be assessed as having priority need because they are vulnerable as a result of old age, mental ill health, physical disability, having been in prison or care or as a result of becoming homeless due to domestic abuse.
16. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. The duty can also be brought to an end for other reasons, such as the applicant turning down a suitable offer of temporary accommodation or because they are no longer eligible for assistance. A suitable offer of a settled home (whether accepted or refused by the applicant) which would bring the main housing duty to an end includes an offer of a suitable secure or introductory tenancy with a local authority, an offer of accommodation through a private registered provider (also known as a housing association) or the offer of a suitable tenancy for at least 12 months from a private landlord made by arrangement with the local authority. (Italics added)
So, it is clear that a person with mental ill health may be a person to whom a local authority owes a duty to provide accommodation. The process of securing accommodation may include providing interim accommodation in the first instance. Any accommodation secured must be suitable and so the applicant needs to be able to decide whether the accommodation meets the statutory criteria. If she wrongly rejects accommodation that is suitable, she may find that the local authority ceases to owe her the full housing duty.
The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need for the purposes of section 59(1)(c) of the Housing Act 1985 (“HA 1985”): see 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 [1993] AC 509. HA, s 59(1) is in the same terms as HA 1996, s 189 (1). It deals with the priority need of the disabled and provides: “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…” In consequence she was not eligible for housing assistance as a homeless person. When I refer to ex parte Ferdous Begum, I refer to that part of the judgment containing the House's decision in R v Tower Hamlets LBC ex parte Ferdous Begum.
In this case the applicant had severe learning difficulties. Her father made an application in his own name for housing but he was found to be intentionally homeless having left accommodation in Bangladesh which was available to him. Solicitors then made an application on the daughter's behalf. This was rejected on the basis that she lacked appropriate capacity. The House of Lords (Lord Slynn dissenting) considered that the Housing Act 1985 permitted an application by a vulnerable person, who was capable of independent living, or by a carer of such a person who might be expected to live with her. However, the majority considered that the vulnerable person could not herself apply, if she could not comprehend or evaluate the offer of accommodation or undertake the responsibilities involved in being a tenant.
The majority reached their decisions by reference to the legislative scheme for applications by homeless persons. Lord Griffiths, with whom the majority agreed, held:
The priority need of the disabled is dealt with in section 59(1)( c) which I will set out again:
“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…”
Many vulnerable people are cared for in the community by their relatives or other good-hearted people with whom they live. If such a “carer” should have the misfortune to become homeless then section 59(1)(c) gives him the status of priority need, and provided his homelessness was not intentional, he will qualify for an offer of accommodation which will enable him to continue to look after the vulnerable person.
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 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.
The legislative scheme was re-enacted in Part VII of the HA 1996. Section 216 (1) of that Act provides that Part VII is to be interpreted as one with the 1985 Act.
The decisions in Re Garlick and ex parte Ferdous Begum are reflected in the first sentence of the following passage from the 2018 Code:
Persons making an application
18.8 An application can be made by any individual who has the mental capacity to do so. There is no statutory minimum age, but applications from dependent children should not be considered. A child aged 16–17 may make an application in their own right, and will require a Children Act 1989 assessment to be completed if they are homeless.
In ex parte Ferdous Begum, the House of Lords referred to the fact that Section 21 of the National Assistance Act 1948 makes alternative provision for persons who lacked mental capacity. That legislation has been replaced by the Care Act 2014. WB contends that this would be less satisfactory than accommodation under the HA 1996, and, for the purposes of this appeal, I am content to accept that that may be so in her case.
The procedural tangle behind this appeal
WB applied to the W Council under Part VII of the HA 1996 in 2013. The W Council considered that she was in priority need but she had become homeless intentionally. WB appealed against that decision and her appeal succeeded. As a result, there was a further review. WB was unsuccessful on that review. She appealed again to the county court under section 204 of the Housing Act 1996. HHJ Maloney determined, after the appeal had commenced and been adjourned part heard, that she lacked capacity to conduct litigation and appointed the Official Solicitor on her behalf. Proceedings were then started in the Court of Protection where, on 14 December 2015, HHJ Richards made the order set out in the appendix to this judgment. No reasoned judgment for this has been found. It is apparent that what the judge intended was that WB should have housing secured by social services but if she was unwilling to take that accommodation, she should be able to pursue her appeal to the county court if that course was open to her.
Accordingly, the adjourned appeal was reinstated. However, in December 2016, before the appeal was heard, HHJ Maloney QC found that WB was incapable of managing her affairs. On 21 December 2016, he dismissed her application on the basis of ex parte Ferdous Begum. Counsel for WB submitted that the decision in that case had been rendered obsolete but the judge followed the recent decision of HHJ Sycamore, sitting as a deputy judge of the High Court in R (MT) v Oxford CC [2015] EWHC 795 (Admin), who had rejected arguments that ex parte Ferdous Begum could now be distinguished. The judge held that he was bound by ex parte Ferdous Begum.
WB does...
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