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WB v W District Council [2018] EWCA Civ 928

Homelessness assistance under the Housing Act 1996 is, still, not available to those who lack capacity to decide where to live.

A rare housing case for our newsletter. We decided to include this because we think there is a real policy issue here, and because this decision has a significant overlap with mental capacity, social care, human rights and discrimination.

Under Part VII of the Housing Act 1996 local authorities have a duty to secure accommodation for those who are eligible, in priority need and not intentionally homeless. An applicant may be in priority need, amongst other reasons, because of mental illness. However, in R v Oldham Metropolitan Council ex parte Garlick [1993] AC 509 the House of Lords ruled that the duty to make an offer of housing is only owed to those who have the capacity to understand and comply with the terms of a tenancy agreement.

WB applied to W Council as homeless but was refused as intentionally homeless. She appealed that decision and, via the Court of Protection declaring that she lacks capacity to decide where to live, her appeal came before the Court of Appeal on the Garlick principle.

WB accepted that the Court of Appeal was bound by the decision in Garlick but argued that:

  • The exclusion of those lacking capacity is an obsolete provision given subsequent legislation
  • The provision must be interpreted in a way compliant with the Human Rights Act, and
  • The Garlick precedent is actually confined to the signing of the tenancy agreement subsequent to any offer.

The Court dismissed all the grounds for reasons I won't set out here. Our view is that the issue needs to be considered afresh in the Supreme Court where the policy considerations can be given sufficient weight. As the Equality and Human Rights Commission set out in its submissions as an intervener, Garlick was decided before the Human Rights Act, the UN Convention of the Rights of Persons with Disabilities and the Equality Act 2010, all of which have fundamentally altered the legal framework for people with disabilities and cast significant doubt on the rationale for the decision.

Similarly Garlick predates the Mental Capacity Act 2005, which provides a process for making decisions on behalf of those who lack capacity and aims to put them in the same position as those who do not. Using the MCA the practical difficulties of offering accommodation to a person who lacks capacity to accept it can be overcome.

Similarly Garlick predates the Care Act 2014, which may have eroded the previous duty to accommodate under section 21 of the National Assistance Act 1948 (see R(SG) v Haringey [2017]), the availability of which was a factor in the House of Lords thinking that homeless assistance under the Housing Act was unnecessary for those lacking capacity.

These are significant developments that suggest the decision in Garlick needs to be reconsidered. Fundamentally, why should a provision designed to accommodate, amongst others, those with disabilities, excluded the most seriously disabled?

Can you help us?

We are told that WB has applied to the Supreme Court for permission to appeal. We have previously looked into the practical impact of Garlick in considering whether to apply as an intervenor, but unfortunately we have been unable to show what the impact is. If any readers have experience of people being denied accommodation due to this rule we would love to hear from you. Please email [email protected].

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