Making a homeless application without mental capacity

Can a person without capacity can make a valid homeless application?

A woman who was homeless and had a range of serious mental health problems including schizophrenia, psychotic syndrome and alcohol dependence applied to the council to be housed.

The council determined that she was not in ‘priority need’, was intentionally homeless, and did not have the mental capacity to apply as homeless. She challenged this in the County Court.

The Judge ruled that he was bound by the outcome of an earlier House of Lords decision (R v Oldham Council, ex parte Garlick 1993) which found that people who lack capacity cannot make homeless applications.

The 1993 ruling was subsequently incorporated into housing legislation.  Because both the earlier ruling and housing legislation predate the Equality Act and Human Rights Act, the Judge referred the woman’s case to the Court of Appeal to decide if the earlier decision still applied.

There are around 320,000 homeless people in the UK and some figures suggest as many as 80 percent have mental health problems.

We were concerned that the earlier ruling and associated housing legislation may discriminate against people who lack mental capacity.

They mean that already vulnerable adults are not provided with accommodation.

Equality laws and the Human Rights Act now protect the rights of people in the most vulnerable situations and we hoped that with our involvement, this policy would be overturned.   

We used our power to intervene in the case, which allows us to provide the court with expert advice or evidence.

We argued in the Court of Appeal that the earlier ruling should be overturned because the subsequent introduction of the Equality Act and Human Rights Act would now lead to a different ruling.

The case was not successful. The court found that it does have a duty under Human Rights Act to interpret the law, whenever passed, in a way that is compatible with human rights. 

However, it could not do so in this case because it would directly contradict the legislation.

Homeless people with mental health conditions are an extremely vulnerable group who need support to find safe accommodation. Although our argument was unsuccessful, the court confirmed that the exclusion of applicants with mental disability from the homelessness legislation has been superseded by the Mental Capacity Act 2005, which provides a process for deciding where a person with mental incapacity shall live and for making a tenancy agreement on that person's behalf.

We will continue to fight to protect the most vulnerable people in our society.