Latest insights from our experts

Posted 13 April 2018
by Simon Sanger-Anderson

Capacity: An Overview

Swings in a playground.

When taking legal action against an individual it is vital that you ensure they have capacity. Where a person lacks capacity there are steps that need to be taken to ensure that they are adequately represented.

What are the issues?

The issue of capacity is a problem that we commonly face when taking legal action against individuals. It is particularly problematic where an individual is appearing as a litigant in person. Where a person lacks capacity there may be limits to what can be achieved by way of Court action – though this will depend on what areas the person lacks capacity in.

Any relevant documents you should be aware of?

As a Housing professional you do not need to know the Mental Capacity Act 2005 (MCA 2005) inside out and back to front. You do need to know it exists and that it is the predominant legislation for dealing with capacity issues.

You do however need to be aware of and have regard to the Code of Practice for the Mental Capacity Act 2005. This current version be found here.

Key principles

It is important to remember the following principles when dealing with someone who may lack capacity:

Everyone is assumed to have capacity until it is established otherwise

1 A person is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success [so if you need to draw a diagram, then do so]

2 A person is not to be treated as unable to make a decision merely because they make an unwise one

3 An act done, or decision made, under the Act for or on behalf of the persons who lacks capacity must be done or made in his best interests [watch out for situations where ‘best interests decisions’ cannot be made]

4 Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

5 Being odd, deviant, old or of unusual appearance does not mean that the a person is without capacity

Defining a lack of capacity

Capacity is the ability to make a decision. It is a decision specific consideration and it is therefore possible for people to have capacity for some things but not for others. Under the Mental Capacity Act 2005:

“…a person lacks capacity in relation to a matter if at the material times he is unable to make a decision for himself in relation to this matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” [s2(1) MCA 2005].

It is important to remember that self-intoxication does not amount to a lack of capacity and should not delay Court proceedings.

What to do if someone lacks capacity

If you consider that someone does not have capacity you need to raise this with the appropriate person (Social Worker, CPN, Psychiatrist or GP) and obtain their assistance in clarifying this. When discussing the situation with other professionals it is important to be clear as to what capacity issues you need clarifying. Inevitably there will be the question of whether the proposed Defendant has capacity to carry out and conduct litigation. If you are thinking of an injunction or possession order (remember the Court’s wide discretion to suspend a possession order if you are applying on non-mandatory grounds) then you also need to know whether that person could understand, abide by and retain prohibitions in a Court Order.

To structure your request and the response from the professional making the assessment it is advisable for that person to complete a COP3 Assessment of Capacity form. The form can be found here.

Capacity can fluctuate and it is something that you always need to keep this under assessment in your dealings with a proposed Defendant and after Court proceedings have been issued.

What if someone refuses to engage in a capacity assessment?

Even where you suspect that someone lacks capacity they can still refuse to engage with a capacity assessment.

Where that person is a litigant in person then it should be explained to them that by refusing to engage they are putting their application against you at risk as someone without capacity cannot pursue proceedings (unless there is someone appointed to act on their behalf).

There is no provision to force someone to submit to a capacity assessment. Where it is not possible all other documents should be considered by the Court so that the Judge can arrive at a decision regarding that person.

What happens when someone lacks capacity to litigate?

If someone lacks capacity then under Civil Procedure Rules Part 21 you can go no further than issuing proceedings without the permission of the Court.

Rarely the Court will proceed to make a final order. It is more inclined to insist that a suitable person is appointed to act as a litigation friend. This means that they take over conduct of the litigation for the person without capacity.

If the Official Solicitor is appointed as there is no other suitable person, you may have to pay their costs – even though they are representing ‘the other side’.

What happens when a person who lacks capacity wants to enter into a tenancy agreement?

For Person X to enter into a tenancy agreement they must be capable of understanding the nature and effects of what they are entering into. In the event Person X is assessed as lacking capacity then they cannot sign a tenancy agreement. Although the MCA enables the making of certain decisions without the need to obtain any formal authority to act, it does not extend to signing legal documents such as tenancy agreements. A person can only sign a tenancy agreement on Person X’s behalf if they are:

  • An Attorney under a registered Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA)
  • A Deputy appointed by the Court of Protection; or
  • Someone else authorised to sign by the Court of Protection

In the absence of one of the above an application must be made to the Court of Protection. Once the Court has issued the application, providing there are no objections from the proposed tenant, an order will be made authorising a named individual to sign the tenancy. A single application can be made, with a single fee, for more than one proposed tenant at a time. It is still unclear who should make the application and who will be responsible for signing the tenancy. Whilst it is possible for a landlord to apply this seems an undesirable option. If at all possible, the relevant local authority responsible for housing the tenant should be responsible for making the application.

Best Interests decisions

We often come across instances where our clients are told that person X is terminating the tenancy. Person X does not have capacity to do this and it tends to occur in situations where that person needs to move to somewhere with more intensive care arrangements. This has all been decided by way of a ‘best interest’s decision’.

A best interest decision can decide where someone should live. What it is not able to do is to lawfully terminate a tenancy agreement for that person. Only someone who is acting under a Power of Attorney or a Deputyship can do this.

The other alternative is a Court Order.

Practical Points

  1. Refer a capacity issue to an appropriate person for assessment as soon as you become aware of it
  2. Be clear with that person as to what action you are thinking of taking
  3. Arrange a multi-agency meeting
  4. Be prepared to delay your action or adjourn your Court case whilst this matter is sorted out
  5. Think twice about applying for an Injunction against someone who lacks mental capacity? Courts will need to be satisfied that they are capable of understanding what they can and can’t do under an Order.
  6. Do seek legal advise
  7. Don’t issue a warrant of possession where there is no litigation friend appointed without making an application to the Court first

If you require any advice regarding a matter similar to this, then please do not hesitate to get in touch with our experienced team of social housing solicitors.

Tozers LLP’s bulletins are no more than an immediate response to a recent decision (or other legal development), on a selected basis, intended to help recipients keep up-to-date with information which may interest them without needing to await publication of more considered material.  Recipients should, therefore, seek advice on any specific matter if proposing to take action in consequence of any such bulletin.

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About the author

Simon Sanger-Anderson

Partner and Solicitor

Partner and solicitor within the employment team, Simon also leads the firm's cross departmental Social Housing Practice Group