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If a child of 17 meets the criteria of s 20 of the Children Act ChA , it is not open to the local authority to avoid its obligations under that section by arranging for him to be accommodated under s 17 or otherwise.
Steven Kovats instructed by the Treasury Solicitor for the intervener, the secretary of state for children, schools and families written submissions only. The appellant, A, was born in in Somalia and came to the UK with his mother and siblings in He was granted indefinite leave to remain in Relations with his mother deteriorated and, in June , she excluded him from home. He approached the local authority. After mediation failed he presented himself to the respondent local authority asking for an urgent assessment of his needs under s 17 of the Children Act ChA and immediate accommodation under s 20 1.
The authority provided the child with bed and breakfast accommodation through the housing department, pending completion of the s 17 assessment. A applied for judicial review. The judge refused permission to apply. In an anti-social behaviour case the information required would include: a that ASB has happened; b that the local authroity is seeking possession as a result of the ASB; c whether the tenant wants to defend the case; d whether she accepts the allegations of ASB are true; e that the tenant may loose her home if the court accepts the ASB happened and that it is likely to continue or inevitably will continue to happen in the future; and f whether she will choose and is able to do so to stop committing the ASB and so seek a suspended order or give an undertaking to the court.
First, medical evidence to establish a disturbance or impairment of the mind or brain is generally required. However, the court in Baker-Tilley, where the defendant would not co-operate to provide medical evidence, found, the absence of medical evidence cannot be a bar to a finding of lack of capacity but where most unusually circumstances arise in which medical evidence cannot be obtained, the court should be most cautious before concluding that the probability is that there is a disturbance of the mind.
Secondly, evidence as to capacity, normally in the form of capacity assessments, which the court can use to make up its own mind as to capacity. A capacity assessment can be undertaken by for example a social worker or mental health worker. However, a local authority should strongly consider instructing a consultant psychiatrist or similar where the case turns on whether the tenant s is unable to make a decision because of her mental illness and thus the impairment of or disturbance in the function of the mind or brain.
In my experience reports by consultant psychiatrist or similar are more robust and judges more likely to accept their views. The judge can ask the tenant questions during the hearing so as to assist his determination on capacity. This is particularly useful if the tenant refuses to co-operate with an assessment and the local authority should invite the judge to do so. Sometimes parties offer themselves up for cross examination.
However, this normally happens where the party is keen to assert they have capacity in the face of the local authority s assertion they do not. Other relevant evidence as to capacity to conduct proceedings may include evidence from other professionals, conduct observed by the court itself and the individual's correspondence and s. Once the issue of capacity is before the court the assessment of capacity is matter for the judgment of the court. He judge may differ from the views of the experts.
The local authority should try and determine why there is a lack of co-operation. If it is because the assessors attend at the wrong time the tenant is high, in the grip of a hallucination, sleepy or there is a lack of trust or similar then the local authority will need to try again and again.
If it appears the tenant is not co-operating so as to try and stymie proceedings or in any event then the local authority should explain to the tenant refusing an assessment why it is needed and what the consequences of refusal are. This is in accordance with the Code of Practice at paragraph 12 The likely consequences are that the court will not have sufficient evidence to establish a lack of capacity so the tenant runs the risk of not accessing the help she may need to save her home.
The local authority can also make an assessment of whether the tenant has the capacity to refuse to undertake an assessment. This is useful as the information will feed into the assessment of capacity to conduct proceedings the court makes. The courts are well aware that parties may try to use a possible lack of capacity as a way of stymieing proceedings. In Baker Tilley the judge stated, counsel have not found any case where the court has had to resolve a situation as has arisen here where the litigant has refused to co-operate in an assessment of their capacity.
One reason why it may be particularly difficult for a court to determine the capacity of a litigant who is appearing in person before the court and is the kind of litigant who attracts a civil restraint order is this, when the litigant wants something from the court, that is the claimant, or is making an application, the litigant may conduct themselves in one way, but where they are in the position of a defendant or an equivalent position they may see it as in their interest to conduct themselves quite differently with the object, put bluntly, of obstructing the proceedings.
If the tenant continues to refuse to co-operate then the local authority should obtain a capacity assessment on the papers without an interview. The Court of Protection has taken into account capacity assessments that did not include an interview. However, the judge noted that: a those assessors would have undoubtedly been seriously hampered in their ability to advise confidently; b quoted a neuropsychiatrist who stated that an assessment of capacity based on case notes is of necessity a relatively inadequate substitution for the complex assessments that occurs in a clinical interview ; and c observed that clinical notes will contain an intrinsic bias a concern about a patient is more likely to be recorded than a lack of concern.
It is clear that an assessment on the papers is a last resort. An assessment on the papers is likely to include the following information: a the assessors knowledge of working with the tenant e. It may be that the assessor will not feel able to give a concluded view on the whether the tenant has capacity to conduct possession proceedings on a paper assessment. However, there is no reason why the assessor cannot confirm whether the tenant does have an impairment of or a disturbance in the functioning of her mind or brain to establish that she is within the ambit of section 2 of the Act as well as recording in the body of her report the information that will assist the court to make a determination pursuant to section 3 of the Act.
For example a treating doctor is likely to have examples of where Ms Fernley has understood information relevant to decisions about treatment for her health, retained it, used it as part of the process of making a decision and communicated that decision. Capacity is issue specific but the court can take into account, when assessing a specific issue of capacity, evidence of transferable skills and abilities when making other decisions.
What is the Effect of a Delusional Illness on Capacity? A person might have a delusional illness but still have capacity for the issue under consideration if she has a range of rational reasons for her decision regarding that issue. It is important for the assessor to determine what the delusional beliefs are and whether and if so how they affect the decision under assessment.
This is because a link must be established between the impairment or disturbance of their mind or brain and their inability to understand, retain or weigh the information relevant to the decision, or communicate their decision.
In the case of Re SB A Patient Capacity to Consent to Termination [] EWHC COP the court found that a woman with bipolar disorder did not lack the relevant capacity to decide to have a termination as, even though she had some paranoid and delusional thoughts, she had given additional reasons for wanting a termination she didn t want a child in detention, she did not see the point in having a child to give it up for adoption, she felt suicidal and without a termination would kill herself.
Holman J found that, when assessing a person who suffers from a delusional disorder, what weighs most significantly with me is that even if the patient has some skewed thoughts and paranoid or delusional views with regard to her husband and his 14 15 attitude toward her and his behaviour, she gives many other reasons for desiring a termination.
When I say rational, I do not necessarily say they are good reasons nor do I indicate whether I agree with her decision, for section 1 4 of the Act expressly provides that someone is not be treated as unable to make a decision simply because it is an unwise decision.
In the case of Islington v QR the defendant was suffering from paranoid schizophrenia. The court was determining, as relevant, her capacity to decide where she should live and whether she could conduct litigation proceedings. The defendant held long standing delusional beliefs on sexual themes and persecutory and grandiose delusions which focused on fears about men entering her home and about the poisoning of her water supply.
She also lacked insight into her condition and did not accept that she had a mental illness or needed to take medication to stay well. The court found that she lacked capacity to decide where she wanted to live. This was because her lack of insight into her condition and her delusional beliefs relating to the home meant she could not make a capacitious decision as to her care and accommodation.
However, in relation to her capacity to litigate the court found, She is in a stable state as regards her mental illness and recognises many of the realities of her situation. Her delusional illness affects her core understanding so as to prevent her making decisions 15 16 for herself about the issues in this case, but does not prevent her from being able to manage her life and make most of her decisions for herself. She is able to understand the court process. Removing a person's capacity to litigate is a significant interference with her rights.
I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate. The issues were whether he had capacity to litigate and give a tithe to his church. The judge accepted that the defendant s belief that he was a prophet was a delusional belief but found that that not all of his religious beliefs were delusional or compromised by the presence of mental illness.
He stated that, The fact that a person has a grandiose belief with a religious content does not demonstrate that the whole of their religion is delusionally-based and caused by mental illness. It may simply be that the content of their belief-system when they become ill reflects and accentuates preexisting interests, concerns and pre-occupations, in this case a concern with religious and moral themes.
The judge found that MS had the capacity to tithe and to conduct litigation. His belief that he was a prophet did not impinge on his capacity to argue and present his case and he had prepared and presented his case very ably. He was capable of understanding, with the assistance of expert advice, the issues on which his consent or decision was necessary in the course of the proceedings. Because M had capacity to make the substantive decision for himself, there was no inherent contradiction in finding that he also had litigation capacity.
It depends! There may be different answers to the questions, Does this person have litigation capacity? As Bracewell J said, it all depends on the circumstances, There is no principle, either of law or of medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subjectmatter capacity.
That said, however, it is much more difficult to imagine a case where someone has litigation capacity whilst lacking subject-matter capacity than it is to imagine a case where someone has subject-matter capacity whilst lacking litigation capacity. Whilst it is not difficult to think of situations where someone has subjectmatter capacity whilst lacking litigation capacity, and such cases may not be that rare, I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare.
Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject matter capacity can nonetheless have litigation capacity. In Islington v QR the protected party was found to lack subject capacity but have litigation capacity.
This was because her paranoid schizophrenia and the delusions related to it affected only decisions about her care and where she was to live she did not accept she had paranoid schizophrenia so she could not weigh up issues that involved consideration of her care not general decisions about her life and the court process. It is therefore possible for a tenant to have capacity to deliberately commit acts of ASB but lack capacity to conduct the proceedings or vice versa.
Section 1 of the Housing Act provides, a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. Paragraph She committed ASB at her property. The local authority obtained possession. At the homelessness stage they accepted she was vulnerable but intentionally homeless.
Ms Bell claimed it was perverse to find her in priority need but intentionally homeless. The court found that there is a distinct difference between a finding of priority need, based on vulnerability and a finding of intentionality. Having regard to the Code of Guidance, it is one thing to be less able to fend for yourself and another thing to be incapable of managing your own affairs.
As such there was no inconsistency between the findings of the council. Further, the court found that there was plenty of evidence upon which the council were entitled to come to the view that the applicant was capable of managing her own affairs and that what had happened had rendered her homeless intentionally.
This evidence included the judge s comments in his judgment of the possession hearing that Ms Bell was bloody minded, awkward and had no intention of behaving. It is clear that the judge in Bell was assessing whether Ms Bell had the capacity to manage her affairs so as to be able to make the decision not to commit ASB.
The phrase incapable of managing affairs was one used frequently to refer to capacity before the Mental Health Act Therefore, in an anti-social behaviour case, where it appears there might be a link between the ASB and the tenant s mental illness the local authority should seek an expert report on the issue of does the tenant lack the capacity to decide whether to commit the ASB as at the material time he is unable to make a decision for himself because of an impairment of, or a disturbance in the functioning of the mind or brain.
This will ensure that, assuming the expert finds that the tenant does have capacity, should the possession order be successful a finding of intentional homelessness can be upheld on this basis.
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