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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