The Court of Protection team at 39 Essex Street review one of the very few publically available judgments in which the elements of the capacity to enter into a tenancy agreement are considered.
The application – as finally constituted – in LB Islington v QR Case No 12177934 (District Judge Batten) was for an order that QR’s current tenancy of a property owned by the London Borough of Islington (‘the LBI’) be terminated, QR lacking the capacity to make the decision for herself, and it being in her best interests. It arose in circumstances which are not unique.
QR was subject to a CTO, which contained, inter alia, a requirement that she reside at a location, ABC. Her RC and Islington’s Assertive Outreach Team (‘IAOT’) considered that she no longer required the structure and restrictions of the regime at ABC, and that she was ready to move into a more independent living arrangement. However they did not agree that she should return to her flat because, in light of her previous history, it was too dangerous for QR to live on her own. They considered that she must live in accommodation which provided 24 hour support and monitoring, so that QR would continue to be compliant with her medication and avoid the risk of a possibly fatal relapse. As District Judge Batten noted, “This conclusion by the treatment team determines the cost of the CTO.”
Sheltered accommodation was available and can be provided by LBI. However because QR would need to sign a tenancy agreement in order to move into a supported living flat, she would have to first surrender the tenancy of her flat. As it was considered that she lacked the capacity to make this decision, the application was brought (initially by the treating Foundation Trust).
QR objected to the application. She contended that she had capacity to decide whether to surrender the tenancy of her current flat and to sign a tenancy agreement for supported living accommodation. She did not wish to surrender the secure tenancy of her council flat which was important to her and she did not wish to move to any of the proposed supported living options which have been proposed by LBI.
The issues before District Judge Batten were therefore QR’s capacity to decide where she should live, to surrender the tenancy of her flat and to sign a new tenancy agreement are the issues as to capacity in this case. They were to be decided within the context of the terms of the CTO made under the Mental Health Act 1983 which the Court of Protection had no jurisdiction to alter.
As District Judge Batten identified:
“33. The choices in front of QR at this point, if she has capacity, are as follows:
i) to surrender the tenancy of her flat, sign a tenancy agreement for supported living accommodation and move to it under the terms of a revised CTO
ii) to refuse to surrender the tenancy of her flat and remain living at ABC under the terms of the current CTO
34. While the current CTO remains on foot, QR does not have a choice to return to live in her flat."
District Judge Batten noted that both QR’s RC and the expert instructed on her behalf were in agreement that she had “capacity to understand the obligations of a tenancy agreement with regard to the payment of rent and other standard obligations of a tenant, and the landlord’s responsibilities” (paragraph 93), but they disagreed as to the matters in issue in the application.
As finally analysed by District Judge Batten, the decisions in question were the decisions of whether QR should change her residence from ABC to a supported living flat, which would involve giving up the secure tenancy of her flat and taking on the tenancy of accommodation on terms that 24 hour support would be provided to her. As Distric Judge Batten emphasised, they were linked decisions rather than decisions which should be viewed independently of each other.
Helpfully, District Judge Batten was at pains to identify the information relevant to each decision:
“97. In relation to the move from ABC to supported living, in my judgment the relevant information that QR needs to understand, use and weigh is
i) She will have to give up the tenancy of her flat.
ii) The terms of the CTO will determine where she lives
iii) IAOT will not at this stage allow her to live in her flat or in any other accommodation which does not provide on site 24 hour support
iv) The move to supported accommodation will offer her greater independence and control over her life than are currently available at ABC
v) She will have self contained accommodation
vi) She is at risk of falling ill again, with life threatening consequences, if she does not take her medication
99. In relation to the decision to give up her secure council tenancy, in my judgement the relevant information that QR needs to understand use and weigh is
i) By surrendering her tenancy she loses the right to live or return there, and thus the opportunity to exchange that tenancy for another secure council tenancy
ii) She cannot move to a less restrictive environment than ABC unless she gives up her tenancy
iii) For the foreseeable future the terms of the CTO will not permit her to live in her flat
iv) She needs 24 hour support in her accommodation in order to remain well
v) Giving up her tenancy does not preclude the grant of a council tenancy by LBI in the future if she is well enough to live completely independently”
101. In relation to the decision to sign a tenancy agreement for supported living accommodation, in my judgment the relevant information that QR needs to understand use and weigh is
i) Her obligations as tenant to pay rent, occupy and maintain the flat
ii) The landlord’s obligations to her under the contract
iii) The risk of eviction if she does not comply with her obligations
iv) The purpose of and terms of the tenancy which is to provide her with 24 hour support so that she takes her medication and can maintain her mental health
v) The landlord/support staff’s right to enter her flat without her permission in an emergency if there is serious physical danger or risk to her
vi) If she moves to supported living accommodation the CTO will be changed to require her to live there.”
For reasons that need not detain us here (but repay study as a model of careful analysis), District Judge Batten held that QR lacked the capacity to take the decisions in issue.
Finally, it should be noted that District Judge Batten found this to be one of those unusual cases identified by Munby J (as he then was) in Sheffield City Council v E  2 WLR 953 in which a person could lack subject matter capacity whilst still having litigation capacity. It is worth, perhaps, reproducing the relevant paragraphs in full because they are so clear an example of an approach that allows the maximum participation by P.
“115. Is this one of those very rare cases where a person may not have subject-matter capacity but has litigation capacity? I have been the judge giving directions and conducting hearings in this case since October 2013. I have been told by QR’s solicitor that she has no concerns about QR’s capacity to litigate and her ability to get instructions from her. The case has not involved disputes as to the facts. I have noted what Dr Kingett had to say about QR’s understanding of the legal process and her relationship with her solicitor (see paragraph 49 above). Dr Akenzua, QR’s expert witness, provided evidence which was directed to the issues in the case and was of assistance to me. Her case was most ably presented by counsel at the final hearing. It would fly in the face of my own experience of dealing with the case to find that QR lacks capacity to litigate.
116. I have described above the matters in which QR has understanding and an ability to use and weigh information. 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 make decisions 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. I am not satisfied on a balance of probabilities that QR lacks the capacity to litigate.”
The analysis of the information relevant to each of the – linked – decisions in the case is particularly helpful, especially that relating to the information relevant to the decision to enter into a supported living tenancy as (with the exception of the last element) this applies outside the context of this specific case and the information is in our experience frequently not properly understood. The decision can also usefully be read with the first decision in LBX v K, L and M (39 Essex Street’s article on this case will be published next week).
This article was written by the Court of Protection team at 39 Essex Street.