Housing Cases: When Vulnerability Affects Capacity
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Mandy Groves
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When does vulnerability become an issue of capacity in housing cases?
Things to consider
Many clients seeking housing advice from our department are extremely stressed by their circumstances. As housing lawyers, when we are instructed by a client at the outset of a case we need to consider whether there are any issues or illnesses they are experiencing that are relevant to the case and their ability to give us instructions.
When working with a vulnerable client group, it is a lawyer’s role to consider whether a client has an illness, vulnerability or combination of issues that may lead to a person lacking capacity for litigation, and whether a medical professional needs to make an assessment.
The client themselves may not recognise such issues affecting them; often a friend, relative or other professional involved may be better placed to point out the extra support that someone may need.
Overview of capacity
Capacity is extremely complex, however in general terms, the charity Mencap defines mental capacity as the ability to make an informed decision based on understanding a situation, the options available, and the consequences of the decision.
The Mental Capacity Act (MCA) 2005 sets out the framework for assessing capacity, with the central principles being:
- A person is assumed to have capacity unless it is established that a person lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help the person to do so have been taken, without success.
- A person is not to be treated as unable to make a decision merely because the person makes an unwise decision.
Inability to make decisions
Capacity must be assessed in relation to particular decisions, and section 3 of the MCA provides that a person is unable to make a decision if they are unable to:
- Understand the information relevant to the decision;
- Retain that information;
- Use or weigh that information as part of the process of making the decision; or
- Communicate the decision (whether by talking, using sign language or any other means.)
Litigation capacity and the court process
The Court of Protection makes decisions about the property and affairs, healthcare and personal welfare of those without capacity. This is outside of my expertise, however my colleagues in the Private Client department may be able to assist with these cases.
If possession proceedings are issued in the County Court against someone who may lack capacity, and this needs to be assessed by a medical practitioner (for example a GP or psychiatrist), then a person may not take any steps in the proceedings until this has been assessed. A client lacking capacity for litigation would be viewed as a ‘protected party’ and the Civil Procedure Rules has specific rules for how these cases should be dealt with. A ‘litigation friend’ will need to be appointed by the Court for the protected party. This is another individual who can give the client’s legal team instructions and make decisions for them, acting in their best interests. If there is no one known to the client who may be able to be a litigation friend, then the Official Solicitor can take on this role.
If you are seeking assistance
These cases are complex and we would need to advise specifically on the individual client and their circumstances.
If you are concerned about someone who has a housing issue where litigation has been issued or is imminent, and they may lack capacity for litigation, please get in touch with us to discuss how our team may be able to assist. Contact us by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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