Whilst the default position is that anybody can make a request to a local housing authority for accommodation or for assistance in obtaining accommodation, a person must have legal capacity to make such an application. An individual who lacks capacity to make a homeless application cannot do so.

It will be for the local authority to reach a decision as to the person’s capacity to make a homeless application. It is assumed that principle 1 of the Mental Capacity Act 2005 applies here and therefore a person is presumed to have capacity to make a homeless application until proved otherwise. A lack of capacity should not be automatically assumed because of a person’s condition.

Further, capacity is issue specific and so it does not matter if the person lacks capacity to make other decisions. Similarly, a person is not to be treated as being unable to make a decision merely because they have made an unwise decision.

Other principles of the Mental Capacity Act 2005 also apply – and so the local authority should ensure that all practical steps are taken to help the person make the decision themselves, for example considering what method of communication the person is most familiar with, what is the best time of day and best location to discuss the decision with the person, etc.

How can you appeal the local authority’s decision?

If the local authority makes a decision that a person does not have capacity to make a homeless application and so their application is refused, then there is no right to review or appeal that decision. A person could provide clear medical evidence of their capacity to make the application in an attempt to try and change the decision of the local authority. If the local authority continues to refuse to change their decision and there is clear evidence of capacity, then the way to challenge this refusal would be by Judicial Review (in which a judge reviews the lawfulness of a decision or action made by a public body). Another route could be to apply to the Court of Protection for a declaration as to capacity. The Court of Protection can also appoint a deputy who would be able to make a homeless application on behalf of the individual who lacks capacity.

In the circumstance that the local authority decides that an individual does not have capacity to make a homeless application, and that is accepted, then a route for that individual to pursue to try and get accommodation from the local authority is under the Care Act 2014. Section 9 of the Care Act 2014 places a duty on a local authority where an individual may have needs for care and support to assess whether they do have needs for care and support and what those needs are. Where the individual has urgent needs, for example they are street homeless, then the local authority has a discretion to meet the individual’s care needs before having completed the assessment. After completion of the assessment, the local authority may be under a duty to provide accommodation if the individual has accommodation-related needs, for example if they need help going to the toilet or getting washed and dressed.

The social welfare department at TV Edwards LLP has a range of both housing and community care solicitors. If you or a family member are experiencing issues with capacity and making a homeless application, please contact us at a_housingreferrals@tvedwards.com.