Saturday, 23 August 2014

The Case of QR: Capacity and Tenancy Agreements

This very recent judgment was published on 5thAugust 2014. It concerns tenancy agreements, and the issue of a person’s capacity to end, or indeed, to take out a tenancy agreement. It also highlights a situation which is covered by neither the Mental Health Act nor the Mental Capacity Act, but requires referral to the Court of Protection for a decision.

QR is a woman of 62. She has a diagnosis of paranoid schizophrenia. Her first serious episode was in 1995 at the age of 43, and she has had numerous detentions under both Sec.2 & Sec.3 MHA since then. She was discharged from hospital in December 2010, since when she has been subject to a CTO. Until her most recent admission to hospital, she lived in a local authority flat, and still has the tenancy of this property.

One of the conditions of the CTO is to reside in “ABC”, a residential treatment centre run by the local authority. The mental health team now consider that she no longer needs this level of support. However, the Judge records: “She must live in accommodation which provides 24 hour support and monitoring, so that QR will continue to be compliant with her medication and avoid the risk of a possibly fatal relapse.”

Her team now want her to live in a more independent living situation, but consider that there is too great a risk to her health and safety for her to return to her previous flat. However, QR will need to sign a tenancy agreement in order to move into a supported living flat, and must first surrender her existing tenancy.

In the words of the Judge the crux of the case is that “QR objects to the application on the grounds that she has capacity to decide whether to surrender the tenancy of her current flat and to sign a tenancy agreement for supported living accommodation.  She does not wish to surrender the secure tenancy of her council flat which is important to her and she does not wish to move to any of the proposed supported living options which have been proposed”.

The issue the Judge had to decide was whether or not QR has the capacity to decide where she should live, to surrender the tenancy of her flat and to sign a new tenancy agreement.

The issue of capacity is, of course, situation specific. A person may have the capacity to decide whether or not to have a cup of tea, but may lack the capacity to make a decision about where they should live.

In this particular case, the Judge concluded that “I am satisfied that QR is unable to make the decisions at stake in this case as a result of the nature of her mental illness.” He went on to say that “QR is not able to give weight to the issue of central importance in the arrangements which [the mental health team] propose, the reason why she needs to take her medication.”

This particular case has not yet reached a conclusion. Still to be decided is “what further evidence if any is required in order that a best interests decision on the issues before the court can be made.”

The implications of this case relate to the issue of the ability of someone with a mental disorder of any sort to either take on a tenancy or to relinquish a tenancy.

This has often not been considered when making arrangements for people who may lack capacity in certain areas because of learning difficulties, dementia or mental illness.

From time to time, and for the best possible reasons, professionals working with such people assist them in obtaining accommodation for which that individual will need to make decisions regarding signing or relinquishing a tenancy, and professionals may not consider the issue of whether or not they actually have the capacity to make those decisions.

While a person can be made subject to conditions in a Community Treatment Order, such as a condition to reside in a certain place, this power does not extend to either terminating a tenancy or taking out a tenancy on their behalf.

If the person  subject to such conditions does not have capacity in that area, then any legal decisions they make may be invalid. In such cases, referral to the Court of Protection appears to be the only remedy.

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