This article discusses a recent case in which Social Welfare solicitor Emily Black represented a disabled tenant who was facing eviction from his home. His Housing Association landlord was trying to evict him due to alleged breaches of his tenancy, specifically, his refusal to temporarily vacate his home to allow works to be carried out.

Housing issue

Our client had been diagnosed with paranoid schizophrenia and has a history of lack of engagement with professionals, including not allowing professionals into his home. Part of the ceiling in one of the rooms of his home had collapsed, and the landlord wanted to carry out works to repair this issue, due to poor housing conditions. The landlord said they could not carry out the works whilst our client lived at the property, and so they asked him to temporarily vacate his home so that the works could take place. Unfortunately, our client did not agree to this.

The landlord initially sought to obtain an injunction against our client to force him to temporarily vacate his home. However, it became apparent that our client did not have the capacity to comply with this injunction, and so the application was not pursued.

At this stage, given the issues with our client’s capacity, it would have been more appropriate for the landlord to approach the local authority to ask for an assessment to be carried out regarding our client’s capacity to make a decision to temporality vacate his home. If the local authority decided that he did not have the capacity to make this decision they could have a made a decision in his best interests. If our client had still not agreed to this, an application to the Court of Protection would have been necessary for the approval of a transition plan. Alternatively, if a capacity assessment could not have been carried out by the local authority, then an application could have been made to the Court of Protection for the Court to make declarations as to our client’s capacity, and then approval of a transition plan. It would have been open to the local authority or indeed even the landlord to make these applications to the Court of Protection.

The Role of The Court of Protection

The Court of Protection is a court which is dedicated to making decisions on financial matters or welfare issues for people who cannot make decisions at the time they need to be made i.e., because they lack the mental capacity to do so. One of the values of the Court of Protection is that it can make decisions on behalf of the person who lacks capacity, ensuring that the decision is in that person’s best interests, is the least restrictive option for them, and with the appropriate safeguards in place.

In the circumstances of the case discussed in this article, eviction through the County Court would involve Bailiffs (and possibly the police) changing the locks on the property, meaning our client would be removed from his home against his will, resulting in his homelessness. This would have been incredibly distressing for our client. We argued that the value of the Court of Protection in this case would have been that the parties could work collaboratively to work out the best way to enable our client to move temporarily, and to ensure that the landlord could enter the property and carry out the works, with minimal distress caused to our client.

Unfortunately, despite being aware of the capacity concerns and our client’s disability, the landlord in this matter continued to seek to evict our client through the county court.

During the case, this firm contacted the relevant NHS Trust and subsequently the local authority, asking that they make an application to the Court of Protection. We continued to chase the local authority until an application was made to the Court of Protection. Ultimately, with the input of the local authority, the landlord, and our client’s sister, the Court of Protection made a decision that it was in our client’s best interest to move to temporary accommodation whilst the works were carried out, and approved a transition plan to ensure that this move took place in the least restrictive way to our client. Our client was able to move temporarily without excessive distress to him, and the works in his home were completed.

The Court of Protection also made an order requiring the local authority and the NHS Trust to explain why there had been a delay in making this application to the Court of Protection, and what steps will be taken to stop such a delay arising again in similar circumstances in future.

As landlords are no doubt aware, they will be discriminating against a disabled tenant if they decide to issue possession proceedings against that tenant due to something arising out of their disability, and if they cannot prove that seeking possession is a proportionate means of achieving a legitimate aim. A landlord would likely not be able to prove this if there may be a lesser measure than eviction that could achieve that aim. This case shows that in certain cases, the Court of Protection may be able to provide that lesser measure than eviction, achieving a positive outcome for all parties.

How we can help

To find out more about how TV Edwards could help with your Housing Law issue or if you need support applying to the Court of Protetction. contact us at enquiries@tvedwards.com or speak to a member of our Social Welfare team on 020 3440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.