Who benefits?
The Upper Tribunal has handed down a decision that will be of great interest and importance to local authorities and those who advise in relation to housing benefit and capacity law. Morris Hill explains why.
In the case of Wychavon District Council v EM [2011] UKUT 144 (AAC) the local authority appealed against a decision of the First-tier Tribunal – Social Entitlement Chamber, allowing an appeal by EM against its decision that EM was not entitled to housing benefit.
EM has had since birth significant learning and physical disabilities. In order to meet EM’s care needs her parents constructed a home for her.
In February 2009 EM’s father granted EM a tenancy of the home and an application for housing benefit was made in order that EM could meet the rent. EM could not sign the tenancy agreement due to her being unable to communicate and being “profoundly disabled”.
Although EM’s mother had been appointed a deputy by the Court of Protection in February 2010, at the time the tenancy was granted there was no one with any power to enter into any such agreements on behalf of EM.
Consequently the Upper Tribunal held that EM “had no liability to pay rent by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge. Nor is there any other basis on which any liability for rent could be imposed on her prior to the date of the decision.”
The Tribunal went on to consider whether EM had a liability to pay monies for her occupation under one of the other bases set out in paragraph 12 of the Housing Benefit Regulations 2006, but concluded there was not.
It also held that in the same way EM lacked capacity to enter into a tenancy agreement, she would also lack capacity to enter a licence agreement and therefore there could be no liability to pay a licence fee. It was also found she was obviously not a trespasser who could be liable for mesne profits. Consequently the Tribunal held EM was not entitled to receive housing benefit.
Comment
The issue of the living arrangements for those that lack mental capacity is one that we are frequently asked to advise on and in particular how best to ensure the individual’s placement is ‘secure’.
For a number of years social care policy has of course strived to maximise the independence of those with learning disabilities and mental illness. As the move away from residential placements continues, so do the difficulties in ensuring appropriate arrangements are made.
The questions of whether arrangements amount to a licence or tenancy, whether care is in reality being provided in a care home, what the funding and charging arrangements are, what if any is the registration regime and how agreements should be entered into to benefit the incapacitated person all have to be properly considered.
As this case shows ensuring moves are properly planned before they go ahead is vitally important, even more so when two-tier authorities are involved, but similar issues arise where both housing benefit and social care responsibilities rest with the same authority, but different departments.
Morris Hill is an associate in the local government team at Weightmans. He can be contacted on 0151 242 7990 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
