Homeless applicants who lack mental capacity

A person lacks mental capacity if they have an impairment or dysfunction of their mind or brain that means they are unable to make a decision for themselves. A person is unable to make a decision for themselves if they are unable to:[1]

• understand the information relevant to the decision

• retain the information

• use or weigh the information as part of decision making

• communicate their decision

Decisions about a person's mental capacity must be made with reference to the Mental Capacity Act 2005. The Act sets out principles which must be applied to everyone.

A person must:[2]

• be assumed to have capacity unless it is established they lack capacity

• not be treated as unable to make a decision unless all practicable steps have been taken without success

• not be treated as unable to make a decision just because they make an unwise decision

The Mental Capacity Act Code of Practice sets out a series of questions to be used by decision makers to help them reach a conclusion about an applicant's mental capacity.[3]

Ability to make decisions

Mental capacity decisions should focus on a person's ability to make a specific decision at a particular time.[4] Loss of capacity can be temporary or partial, and can change over time. The fact that a person was deemed to lack capacity at some point in the past may not mean they still lack it at present.[5] A person can lack capacity to make a decision about one issue and retain the ability to make a decision about something else.

When assessing whether a person lacks capacity, the decision maker must consider whether the person has an impairment of, or disturbance in the functioning of, their mind or brain. The decision maker must then consider whether the impairment or disturbance means the person is unable to make a specific decision when they need to.[6]

A decision maker cannot assume a person lacks capacity because of a medical diagnosis or an aspect of their behaviour.[7]

An application for homelessness assistance cannot be accepted by a local authority from a person who lacks the mental capacity to make it.[8] It is the responsibility of the local authority to decide whether the applicant has capacity to make the homeless application or not.

The Mental Capacity Act Code of Practice supports the statutory framework set out by the Mental Capacity Act 2005.[9] Local authority housing officers must have regard to the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice as they are acting in a professional role.[10] A professional medical opinion could be appropriate, but the professional cannot make a decision on behalf of the local authority.

Under the Mental Health Act 2005, the Court of Protection can make decisions about the welfare and affairs of a person who lacks capacity. This includes the power to appoint a deputy to act and make decisions on that person’s behalf. The Court of Protection can authorise a deputy to make a homeless application on behalf of a person who lacks capacity. The deputy can decide whether to accept an offer of accommodation and enter a tenancy agreement on behalf of the person whose interests they represent.[11]

Someone else who lives with the person who lacks capacity could make a homeless application on behalf of the household. A person who resides or could reasonably be expected to reside with a person who is vulnerable as a result of mental illness is in priority need for homelessness assistance.[12]

Social services have a duty to people with care and support needs.

The Mental Capacity Act 2005 provides for a statutory advocacy service.[13] Independent Mental Capacity Advocates (IMCAs) can support and represent a person who lacks capacity. They can make sure the legal duties towards the person are being followed.

It is necessary to appoint an IMCA for people who lack capacity and who:

• are aged 16 or over

• are facing a long term change in accommodation

• do not have a family member or friend who is appropriate to consult

The local authority adult social care department is required to instruct an IMCA where the conditions are met.

Chapter 15 of the Code provides guidance on ways to resolve disputes. The homeless applicant can apply to the Court of Protection for a declaration to confirm whether or not they lack capacity to make a homeless application. Legal aid is available for proceedings in the Court of Protection.

Judicial review

A local authority decision to refuse to accept an application because the applicant lacks capacity can be challenged by judicial review. The local authority will have to show that it:

• acted reasonably

• made adequate inquiries

• took into account the Mental Health Act and the Code

A judicial review challenge may be more likely to succeed if the local authority makes a decision that the person lacks capacity without getting specialist advice.