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HOUSING & CAPACITY: Capacity to apply as homeless

This article explores the capacity to apply as homeless under the Housing Act, with a focus on mental capacity and relevant legal cases. It also discusses the implications of applying for homelessness assistance in England.

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HOUSING & CAPACITY: Capacity to apply as homeless

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  1. HOUSING & CAPACITY:Capacity to apply as homeless Stephanie Lovegrove, Barrister

  2. Introduction Applying as homeless Mental capacity R v Tower Hamlets LBC ex p. Ferdous Begum[1993] A.C. 509; (1993) 25 H.L.R. 319 HL Human Rights Act 1998 Statutory interpretation WB v W DC[2018] EWCA Civ 928; [2018] H.L.R. 30 Implications

  3. Applying as homeless • In England, Pt 7 of the Housing Act 1996, as amended, governs the provision by local housing authorities of assistance to homeless persons.  • Part 7 of the 1996 Act replaced Pt 3 of the Housing Act 1985. Section 216(1) of the 1996 Act provides that the provisions Part 7 have effect in place of the provisions of Part 3 of the Housing Act 1985 “… and shall be construed as one with that Act.”

  4. Applying as homeless Section 183 (accepting an application) A local housing authority in England is obliged to accept an application for homelessness assistance if there is reason to believe that the applicant is or may be homeless or threatened with homelessness: s.183(1). Crucially, at this stage, there is no assessment of whether a person is eligible, in priority need, intentionally homeless or has a local connection. The application can be made in any number of ways and need not be in writing: R v Chiltern DC ex p Roberts (1990) 23 HLR 387, QBD. It does not need to be expressed as explicitly seeking assistance under Part 7. The application can be made by someone on behalf of the applicant where the applicant has capacity to instruct them to do so (i.e. a social services referral, a community group, friends or family): ibid. If an authority fails to accept an application where the above test is met, then an applicant can challenge that failure in judicial review proceedings.

  5. Mental capacity Mental Capacity Act 2005 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 it because of an impairment of, or a disturbance in the functioning of, the mind or brain: s.2(1) of the Mental Capacity Act 2005. The 2005 Act introduced power for the Court of Protection to appoint a person, known as a deputy, to make decisions on behalf of someone who lacks capacity in relation to matters concerning his personal welfare or property and affairs: s.16(1) of the 2005 Act. A deputy’s powers include deciding where the person lacking capacity is to live and acquiring property on that person’s behalf: s.17(1)(a) and s.18(1)(c) of the 2005 Act. A deputy is deemed to be acting as the agent of the person lacking capacity in relation to anything done within the scope of his appointment: s.19(6) of the 2005 Act.

  6. Ferdous Begum in the Court of Appeal Ms Begum lacked hearing, speech and education. Communication with her was very difficult and within the family took place by a unique form of sign language. Her father attended the authority’s offices with her to make an application to which she applied her signature. The authority informed Ms Begum’s father that they did not consider she had made an application. Ms Begum appealed a decision dismissing her claim for judicial review. In R. v Tower Hamlets LBC Ex p. Ferdous Begum [1993] Q.B. 447; (1992) 24 H.L.R. 71 , the Court of Appeal allowed her appeal and granted her application for judicial review, holding that an application under Pt 3 of the 1985 Act, could be made by someone on behalf of a person who was unable through mental incapacity to make or consent to the making of an application, provided that the person making the application could demonstrate reasonable grounds for doing so and that he was acting bona fide in the interests of the person lacking capacity. 

  7. Ferdous Begum in the House of Lords On the authority’s appeal, the House of Lords held, by a majority of four to one, that to be able to apply for assistance under Pt 3 of the 1985 Act, a person had to be capable of accepting or rejecting an offer of accommodation or assistance; a person could therefore not make an application on behalf of someone who lacked capacity to appoint an agent: [1993] A.C. 509; (1993) 25 H.L.R. 319 HL. Ferdous Begum decided that 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 accepted, to undertake the responsibilities that will be involved; if a person is so disabled that he cannot do this he is not left destitute but is protected by (what was then) section 21 of the National Assistance Act 1948 (now the provisions of the Care Act 2014). Whether a person lacked capacity was not a precedent fact but rather a decision for the authority reviewable on Wednesbury grounds.

  8. Statutory interpretation In Barras v Aberdeen Steam Trawling and Fishing Company [1933] A.C. 402HL, Viscount Buckmaster said, at 411, that:  “It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.” After the decision in Ferdous Begum, the Disability Discrimination Act 1995 (as amended in 2004) was enacted, as were the Housing Act 1996, the Human Rights Act 1998, and the Equality Act 2010.

  9. Human Rights Act 1998 Human Rights Act By s.3(1) of the Human Rights Act 1998, all legislation must, so far as possible, be read and given effect in a way which is compatible with those rights in the European Convention on Human Rights in Sch.1 of the Act: see s.1(1).  In Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 A.C. 557; [2004] H.L.R. 46, Lord Nicholls considered the limits of s.3(1) of the 1998 Act, at [33].  “Parliament … cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary s.3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of s.3 must be compatible with the underlying thrust of the legislation being construed.”

  10. W v WB In 2013, WB applied to the respondent authority for homelessness assistance. The authority decided that she had made herself homeless intentionally which decision was upheld on review. WB appealed to the county court under s.204 of the 1996 Act.  The appeal was adjourned while proceedings took place in the Court of Protection. In December 2015, the Court of Protection decided that WB did not have capacity, inter alia, to make decisions about where she should live or to enter into a tenancy agreement. The county court appeal was restored and a circuit judge dismissed the appeal on the basis that WB did not have capacity to make an application. The WB further appealed to the Court of Appeal contending, inter alia, that s.3 of the Human Rights Act 1998 required Pt 7 of the 1996 Act, to be interpreted in such a way that applicants lacking capacity could make an application. The EHRC intervened and also filed submissions.

  11. W v WB WB accepted that the Court of Appeal was bound by Ex p.Ferdous Begum because it was a decision of the House of Lords binding the Court, unless she succeeded on one of the following arguments: (1) that the exclusion of persons lacking mental capacity can be classed as an obsolete statutory provision (the “Obsolescence” argument), (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), (3) the effect of 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 appellant was not permitted to pursue this point at the hearing as it was not raised below.

  12. W v WB The Obsolescence and Human Rights Interpretation arguments Arden LJ concluded that the appeal should be dismissed. In doing so, she observed that: Art.14 of the Convention (prohibition of discrimination) is engaged by discrimination between persons with disability within the ambit of a Convention Article, here art.8 (right to respect for private and family life). In very rare circumstances the courts may hold that a statutory provision has become obsolete. A prior judicial decision may thus be departed from if it has been implicitly overruled by later case law or statute. The courts have a duty under Human Rights Act 1998, s.3 to interpret both primary and secondary legislation, whenever passed, in a way that is compatible with Convention rights. However, this duty does not empower the courts to adopt an interpretation which goes against the "grain of the legislation" (see Ghaidan v Godin-Mendoza [2004] 2 A.C. 557).

  13. W v WB Arden LJ went on to hold: The HA 1996 was passed before the 1998 Act came into force, but since enacting the Human Rights Act Parliament has built on the legislative scheme for housing homeless persons on further occasions and taken no step to reverse Ex p. Ferdous Begum. Applying the Barras principle, and the principle that Parliament knows the law, it is apparent that Parliament have not sought to depart from the Begum approach to capacity. Likewise re the 1998 Act, to interpret Pt VII of the HA 1996 afresh would not be to interpret those provisions but to give them a meaning which it is clear from the legislative history is contrary to that which Parliament intended. She concluded that Ferdous Begum precluded an application by an agent purporting to act on behalf of a person lacking capacity but obviously left open the question whether a statutory agent under the MCA 2005 could apply (the 2005 Act having post-dated the decision). It was not considered necessary to consider the position of those appointed under an lasting power of attorney.

  14. WB v W Lewison LJ reached the same conclusion for different reasons focusing mainly on the doctrine of precedent. He concluded the Court was not bound to follow Ferdous Begum and that a Convention-compliant interpretation was possible. Nonetheless, he held that in the absence of a Deputy appointed under the MCA or the execution of an LPA whilst the person had capacity, WB could not apply as homeless and so the appeal fell to be dismissed in any event.

  15. Implications Ensure capacity to apply as homeless is considered at the outset to avoid unnecessary litigation – it should be factored into decision-making flow-charts (but decision-makers need to understand what it means to lack mental capacity and that the issue is decision-specific). Beware the position of those applying through an LPA or deputy under the MCA 2005. In my view, this issue remains at large because Ferdous Begum only considered the position of contractual agents purporting to act for those who lacked capacity to instruct them. The position in WB appears to be that a deputy can apply as homeless for a person lacking capacity to do but it is unclear if an LPA appointee can do so. The point was obiter however and so the argument remains open. Beware the obvious argument (though contrary to Ferdous Begum) that whether a person lacks capacity or not is a question of precedent fact (which means the court gets to decide as a matter of fact whether a person’s application should be accepted). The whole issue is ripe for reconsideration in the Supreme Court in any event.

  16. Putting people and client service first 4-5 Gray’s Inn Square Gray’s Inn London WC1R 5AH DX No 1029 LDE clerks@4-5.co.uk Tel +44 (0)20 7404 5252

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