WB v W District Council

Under Part VII of the Housing Act 1996, the duty to secure suitable accommodation presupposes that the applicant can understand and evaluate an offer and undertake the responsibilities of a tenant.

The exclusion of a person lacking that capacity was not obsolete. The statutory re-enactment of the priority-need scheme supported that conclusion. Section 3 of the Human Rights Act 1998 could not be used to alter the legislative scheme or the general law of agency. However, the Mental Capacity Act 2005 permits an appropriately authorised deputy to act as the person’s statutory agent.

WB, a protected party with severe learning difficulties, applied to W District Council for accommodation under Part VII of the Housing Act 1996. The council accepted that she had priority need but found her intentionally homeless. After a successful initial appeal, a later review decision was challenged in the county court.

HHJ Maloney QC found that WB lacked capacity to manage her affairs and dismissed the appeal on the basis of ex parte Ferdous Begum, as followed in R (MT) v Oxford CC [2015] EWHC 795 (Admin). The appeal concerned whether that exclusion had become obsolete, whether section 3 of the Human Rights Act 1998 required a different interpretation, or whether the earlier decision only prevented the execution of a tenancy.

1. Appeal dismissed. Arden LJ gave the leading judgment. Asplin LJ agreed with her reasoning. Lewison LJ agreed with the result but reached it by a different route.
2. The House of Lords’ decision in R v Tower Hamlets LBC ex parte Ferdous Begum, reported at [1993] AC 509, remained applicable. The statutory scheme presupposed that an applicant could understand and evaluate suitable accommodation and undertake the responsibilities of a tenant. The rule was not obsolete merely because social attitudes towards disability had changed.
3. The Barras principle applied. Where Parliament re-enacts or builds upon legislation using a term which the courts have already interpreted, the same meaning is presumed unless the later legislation clearly indicates otherwise. Parliament had retained and extended the concept of priority need in subsequent housing legislation. The legislative history therefore confirmed, rather than displaced, the earlier interpretation.
4. Section 3 of the Human Rights Act 1998 imposed a strong interpretative duty, but it could not be used to contradict the essential scheme of the housing legislation, change the general law of agency, or make a substantive amendment. The Convention-compliant construction sought by WB was therefore not possible on the majority reasoning.
5. The Mental Capacity Act 2005 had created a statutory agency. An appropriately authorised deputy could be given power to decide where the person should live, acquire property, make the homelessness application and accept accommodation. That statutory route was distinct from the contractual agency considered in Ferdous Begum.
6. The argument that WB might have capacity to apply for accommodation while lacking capacity to enter a tenancy had not been raised below and was unsupported by findings of fact. The Court expressed no view on how the housing legislation would operate in such circumstances.
7. Lewison LJ considered that section 3 could in principle permit a construction allowing an application on behalf of a person lacking capacity. But no deputy or attorney with the necessary decision-making powers existed in WB’s case. Permission for a council officer merely to sign a tenancy was administrative and insufficient. The appeal therefore failed on that alternative reasoning also.

• Court of Appeal (Civil Division). The appeal was dismissed: [2018] EWCA Civ 928.
• Norwich Combined Court Centre. HHJ Maloney QC dismissed WB’s appeal under section 204 of the Housing Act 1996 on 21 December 2016, applying ex parte Ferdous Begum.