WB v W District Council

The Court of Appeal held that a person who lacks mental capacity to make decisions about where to live cannot, as a matter of general law, be treated as an applicant under Part VII of the Housing Act 1996, absent intervention under the Mental Capacity Act 2005 or clear legislative change. The court treated the House of Lords decision in R v Tower Hamlets ex parte Ferdous Begum as binding and not rendered obsolescent by subsequent legislation or the Human Rights Act 1998. The Homelessness legislative scheme (Part VII HA 1996 and related statutes) and the Barras presumption that a reused statutory term carries prior judicial meaning were central to the decision. The court also held that the interpretative duty under HRA s.3 cannot be used to give Part VII a Convention-compliant meaning where that would run counter to the legislative history and the limits of the general law on agency; instead the Mental Capacity Act 2005 provides the route for deputies or attorneys to act on behalf of a person who lacks capacity.

Background and parties:

• WB, a protected party represented by the Official Solicitor, appealed against the county court's dismissal of her claim for homelessness assistance under Part VII of the Housing Act 1996.
• W District Council was the respondent. The Equality and Human Rights Commission intervened by written submissions.

Procedural history:

• WB applied for assistance in 2013. She had been found to be in priority need but the council decided she had been intentionally homeless; an appeal succeeded but a later review again refused assistance. County Court proceedings under section 204 HA 1996 were adjourned; the Official Solicitor was appointed after a capacity finding and proceedings in the Court of Protection resulted in orders about where WB should live and authorised a local authority officer to enter into a tenancy on her behalf in certain circumstances.
• HHJ Maloney later found WB incapable of managing her affairs and dismissed her application below, applying the House of Lords decision in ex parte Ferdous Begum. WB appealed to the Court of Appeal.

Issues for decision:

1. Whether the exclusion of persons who lack capacity from being applicants under Part VII HA 1996 had become obsolescent (the obsolescence argument);
2. Whether the Housing Act 1996 could be read under HRA s.3 so as to permit applications on behalf of persons who lack capacity (the Human Rights interpretation argument); and
3. Whether the ratio of ex parte Ferdous Begum was narrower and permitted an application even if the applicant could not enter a tenancy (the narrow ratio argument).

Court’s reasoning and conclusion:

• The court reaffirmed the binding effect of ex parte Ferdous Begum on the interpretation of Part VII and applied the Barras principle: Parliament subsequently re-enacted and built upon the priority-need framework and did not reverse the prior judicial interpretation, so it was to be presumed Parliament accepted that meaning.
• The court held the HRA s.3 interpretative duty cannot be used to produce a Convention-compliant reading that is incompatible with the legislative scheme and the established meaning carried forward by Parliament, and that even a Convention-compliant construction would not overcome the general-law limitation on agency for persons without capacity without recourse to the Mental Capacity Act 2005.
• The court also declined to entertain the narrow-ratio argument because it was not argued below and there were no supporting factual findings.

Relief sought: permission to overturn the lower court’s decision and to hold that WB could be treated as an applicant under Part VII HA 1996 despite lacking capacity.

Outcome: the appeal was dismissed. The court emphasised that where a person lacks capacity the appropriate route is statutory agency under the Mental Capacity Act 2005 (deputyship or lasting power of attorney) rather than reinterpretation of Part VII.

The appeal is dismissed. The Court of Appeal concluded that the House of Lords decision in R v Tower Hamlets ex parte Ferdous Begum remains binding on the interpretation of Part VII of the Housing Act 1996; Parliament has repeatedly re-enacted and relied on the priority-need scheme and has not displaced that precedent (the Barras presumption). The interpretative duty under HRA s.3 cannot be used to displace that prior construction where doing so would run counter to the legislative scheme and the limits of the general law on agency; instead, the Mental Capacity Act 2005 provides the lawful mechanism (deputyship or lasting power of attorney) for decisions about housing on behalf of persons who lack capacity.

Appeal from the county court (Norwich Combined Court Centre before HHJ Maloney QC) following determinations about WB's capacity, proceedings in the Court of Protection (order of December 2015 authorising certain decisions and an officer to enter into a tenancy on her behalf), and dismissal by HHJ Maloney on the basis of ex parte Ferdous Begum. The appeal was heard in the Court of Appeal and dismissed ([2018] EWCA Civ 928).