BL (R on the application of) v LONDON BOROUGH OF ISLINGTON

Capacity to conduct proceedings is decision-specific. A person must be presumed to have capacity, and the court must take all practicable steps to assist decision-making before finding incapacity. The court must consider whether information can be understood through explanations or adjustments suited to the person’s circumstances. Medical evidence is important but is not necessarily determinative. The court may assess capacity from all the evidence, including the person’s participation in the hearing. Where appropriate adjustments enable a disabled litigant to understand and conduct the claim, refusing participation may unjustifiably impair autonomy and access to justice.

The claimant sought judicial review of a local authority’s decision not to award medical points under its Housing Allocation Scheme. The defendant raised a question about her capacity to conduct the proceedings, relying partly on a medical report prepared for separate County Court litigation. Earlier Administrative Court orders had proceeded on the mistaken understanding that the County Court had found her incapable of conducting litigation. That decision had in fact been set aside on appeal, with capacity affirmed in the County Court case.

The issue before the court was whether the claimant had capacity to conduct this judicial review claim and, if not, whether a litigation friend was required.

1. Capacity and outcome. The claimant had capacity to conduct the judicial review claim. The application was allowed and the order of 13 July 2021 requiring further medical evidence or a litigation friend was set aside in its entirety.
2. Capacity was situation-specific. The County Court decision was not binding because capacity must be assessed in relation to the particular matter and the nature and complexity of the proceedings.
3. Under sections 1 to 3 of the Mental Capacity Act 2005, capacity had to be presumed unless the contrary was established. The court had to take all practicable steps to help the person make the relevant decision before treating her as unable to do so. An unwise decision did not establish incapacity.
4. The court had to consider whether the claimant could understand relevant information when it was explained in an appropriate manner, including through simple language or other adjustments. The duty to consider such assistance applied to the conduct of litigation.
5. The GP report was accepted on purely medical matters, but it did not address appropriate adjustments and did not prevent the court reaching a different overall conclusion. The judge was entitled to consider the claimant’s written and oral submissions, her answers to questions, her understanding of the participants and the subject of the proceedings, and the support available from the court and the defendant.
6. Given the practical difficulty of finding a litigation friend, refusing participation would probably have left the claim stayed without determination on its merits. The court should not interfere with the claimant’s autonomy unless that was necessary.
7. There was no order for costs on the application. The judgment did not determine the merits of the judicial review claim; those remained for consideration at the permission stage.

The judgment describes earlier orders made in the same judicial review proceedings, but it was a first-instance determination of the claimant’s capacity application. No separate appellate history is stated.