During April and May 2017, we ran a 2-part workshop in Chambers exploring the law and procedure on dealing with mental health issues in housing cases.
This Bulletin is intended as a follow-up note for those of you who attended, and as a general practice note for those of you who missed it.
Mental health issues are legal as well as practical: it is impossible to make practical decisions about litigation involving mental health without understanding the law. There are a number of important Acts and procedural rules that will apply.
Section 6 of the Equality Act 2010 defines disability:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
The definition breaks down as follows:
All those terms are defined in Schedule 1 to the Equality Act 2010.
Impairment: There is no statutory definition, and in practice this is dealt with purposively. What matters is that there is some condition, whether well-recognised or not, which has the effects set out at s6(1) of the Act.
Long Term: Long-term is defined as having lasted for at least 12 months, or being likely to last for at least 12 months, or being likely to last for the rest of the person’s life (if they have less than a year to live). It is not necessary for the impairment to be constant: it is treated as continuing to have an adverse effect if the effect is likely to recur (i.e. if the condition fluctuates). There is therefore often a necessity to obtain medical evidence about the likelihood of recurrence.
Substantial: This simply means “more than minor or trivial”, that is, going beyond the normal differences in ability which may exist among people.
Medical Treatment: Any medical treatment being taken to correct or treat the impairment, which improves the person’s symptoms, has to be ignored for the purpose of the test in section 6(1). The only exception is treatment which, once carried out, permanently cures the adverse effect without the need for any further treatment (e.g. a hip replacement).
Deemed Disabilities: Cancer, HIV and multiple sclerosis, once diagnosed, are a disability irrespective of whether they fulfil the test in s6(1). A person who is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist is also deemed to have a disability.
Past Disabilities: Once a person has been disabled in the past (i.e. they have fulfilled the test in s6(1) in the past), they are protected permanently by the provisions of the Equality Act 2010. In other words, someone with a past disability is deemed to be a “disabled person”.
Children: The rules for assessing disability are the same for children as adults, unless the child is under 6 years of age, when deeming provisions apply.
Exclusions: Under the Equality Act 2010 (Disability) Regulations 2010, the following are excluded from being disabilities:
The leading case is the Supreme Court decision in Akerman-Livingstone v Aster Communities Ltd  UKSC 15, which stated that rights under the Equality Act 2010 are not public law rights, but private rights exercisable by occupiers against any landlord, whether public or private. The Equality Act 2010 can therefore provide a valid defence to any possession proceedings involving an occupier with a disability, not just proceedings brought by local authorities and other social landlords.
Under Part 4 of the Equality Act 2010, those who manage premises (including landlords) are prohibited from discriminating against all disabled occupiers (not just tenants), by either evicting them or subjecting them to any other detriment.
In practice, this means that any step taken against disabled tenants or disabled members of their household, because of something that arises in consequence of their disability, has to be justified: i.e. it must be a proportionate means of achieving a legitimate aim.
Furthermore, the duty to make reasonable adjustments applies to tenants and their households: these could be adjustments to normal procedures, or the provision of auxiliary aids. NOTE: there is no obligation on landlords to physically alter premises as a reasonable adjustment.
The starting point is the Mental Capacity Act 2005, and the overriding principles are set out in section 1 of that Act.
The key point is that capacity is presumed: the presumption is that everyone has capacity, until proved otherwise. It is not for the subject person to prove that they have capacity. Establishing a lack of capacity is a high hurdle.
“All practical steps” must be taken to assist someone to understand the issues, and make decisions. This could involve:
It is the decision-maker who needs to be satisfied that the subject person lacks capacity. If a matter proceeds to court, it is then the judge who will ultimately need to be satisfied that a person lacks capacity within the proceedings.
People are entitled to make bad decisions. People with learning difficulties or mental health conditions are equally entitled to make bad decisions. Just because a person does not agree with the wisdom of professionals, does not mean they lack the capacity to make the relevant decision.
Section 2 of the Mental Capacity Act 2005 sets out the test for capacity. It is a two-part test:
(1) Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain (whether temporary or permanent)? And
(2) Is the person unable to make the decision in question because of that impairment?
Capacity is decision-specific. Someone may have capacity to understand and agree to a tenancy agreement, if explained to them in simple terms, but may not have the capacity to understand the legal complexities of possession proceedings, or a claim based on anti-social behaviour.
It is worth remembering that “…an impairment of, or a disturbance in the functioning of, the mind or brain” may mean that the person did not have capacity at the time they committed the act relied upon (when, for example, deciding whether or not someone is intentionally homeless, or in relation to a possession claim based on anti-social behaviour).
Decisions with respect to capacity are based on the balance of probabilities.
Section 3 of the Mental Capacity Act 2005 sets out the criteria that need to be fulfilled in order for a person to be considered lacking in capacity, i.e. to override the assumption that a person has capacity.
A person is considered to lack capacity in respect of a particular decision if he cannot:
The person does not need to understand everything. They do need to have a grasp of the salient factors. This may mean that particular care needs to be taken, to identify and focus on the material points, and to focus on the implications of any decision.
The retention of information is also a key consideration. The fact that a person may only be able to retain the information for a short period is not a bar in itself. The question is whether they can hold the information long enough to be able to make an informed decision.
If the dispute is likely to come to Court, and it will be an issue whether or not the defendant has capacity, a capacity assessment should usually be undertaken by a medical professional (and if possible, before proceedings are issued).
Assumptions should not be made about potential defendants: for example, just because someone is very elderly, or they have been sectioned under the Mental Health Act, it does not necessarily follow that they lack capacity to understand impending proceedings.
Part 21 of the CPR sets out special provisions relating to claimants and defendants who lack capacity to conduct litigation (known as “protected parties”).
The key provisions are:
• Rule 21.2: A protected party must have a litigation friend appointed to conduct proceedings on his behalf
• Rule 21.3(2): No step in proceedings may be taken (when a party lacks capacity) until that party has a litigation friend – except issuing and serving a claim form, and applying for the appointment of a litigation friend
• Rule 21.3(3): If, during proceedings, a party loses capacity to continue to conduct proceedings, no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend
• Rule 21.3(4): Any step taken before a protected party has a litigation friend has no effect, unless the court orders otherwise
• Rule 21.4: Who may become a litigation friend without the need for a court order
• Rule 21.5: The procedure for becoming a litigation friend without a court order
• Rule 21.6: The procedure for becoming a litigation friend by court order
• Rule 21.7: The Court’s power to change a litigation friend
• Rule 21.10: No settlement of a claim involving a protected party will be valid without the Court’s approval
Paragraph 3.1 of the Practice Direction to Part 22 (Statements of Truth) is also important: in a statement of case, a response or an application notice, the statement of truth must be signed by a protected party’s litigation friend, or by the legal representative of the party or litigation friend.
Where the party is unable to read or sign documents, but they do otherwise have capacity to confirm the truth of the document being signed, paragraph 3A of the Practice Direction will apply: the document must contain the certificate of an authorised person (a person able to administer oaths and take affidavits, who can be the party’s own legal adviser). The precise wording of the certificate (essentially, confirming that the document has been read to the person signing, and that they appear to understand it) is at Annex 1 to the Practice Direction.
We discussed many points of good practice in the two workshops devoted to this complex topic. The following points are particularly important;
Both social landlords and private landlords have important duties towards occupiers of let residential premises, especially if they have mental health problems. The usual reasonableness test will apply, as will the Equality Act.
So if you are representing the tenant, check: has the landlord done everything they need to, in order to lawfully issue the claim?
And if you are representing the landlord, beware: however serious the misbehaviour, you must be able to present good evidence of the steps taken to avoid proceedings, or those proceedings are likely to end without the relief you are seeking.
Finally, thank you to everyone who attended these two workshops, and we look forward to seeing you at our next Housing workshop in June!
Damian was called to the Bar in 1995, taking Silk in 2019. Read more >
Gill was called to the Bar in 1998 and I joined 42BR in August 2020. Read more >