Litigation friend: claiming for someone who lacks capacity

Sometimes a person cannot run a legal case on their own. It may be a family member or a loved one. They may lack the mental capacity to do it. To bring a housing disrepair claim for them, you act as their litigation friend. Here is what that means, and how it works.

What is a litigation friend?

A litigation friend runs a legal case for someone else. That person cannot do it for themselves. The role covers:

• Children under 18
• Adults without the mental capacity to run a case. Causes include dementia, a learning disability, a bad mental health problem, or a brain injury

The litigation friend speaks for the protected person all through the claim. They instruct the solicitor. They receive the letters and emails. They make the decisions.

Who can be a litigation friend?

A litigation friend can be:

• A parent or guardian, for a child
• A family member or carer, for an adult who lacks capacity
• A deputy named by the Court of Protection
• The Official Solicitor, where nobody suitable exists

A litigation friend must run the case fairly and properly. They must hold no stake that cuts against the protected person.

How is one appointed?

In most disrepair cases, no court permission is needed first. Filing a paper called a certificate of suitability with the claim form is enough. It confirms the person meets the rules to act. The solicitor guides them through it.

Some cases run harder. Capacity may be disputed. The Official Solicitor may need to step in. Those cases may need a court application.

What does the role ask of you?

As litigation friend, your job is:

• Instructing the solicitor for the protected person
• Describing the living conditions, and how the disrepair touches them
• Checking and approving papers before they reach the court
• Going to hearings where needed
• Approving any settlement before it becomes final

Every settlement in this kind of claim needs the court's approval. The check protects the protected person. Claims by adults who hold capacity skip this step.

What evidence is needed?

The case runs like any other disrepair claim. You will need proof of:

• The disrepair itself: photos, reports, letters and emails
• How the disrepair touches the protected person. Medical and care records count here
• The landlord's knowledge of the disrepair, and their failure to fix it

Medical evidence matters greatly here. It covers the protected person's condition. It shows how the disrepair harmed their health or wellbeing. It counts most when the person cannot speak for themselves.

Mental capacity and the Mental Capacity Act 2005

The Mental Capacity Act 2005 sets how decisions get made for adults who lack capacity. Capacity gets checked choice by choice. A person may hold it for some choices and not others. The solicitor must be sure the protected person lacks capacity to run the case themselves.

When should I contact Support for Tenants?

Want to bring a claim for a family member who lacks capacity? We can talk through the options.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Landlord and Tenant Act 1985, Section 11 (legislation.gov.uk)
• Pre-Action Protocol for Housing Conditions Claims, England (justice.gov.uk)
• Homes (Fitness for Human Habitation) Act 2018 (legislation.gov.uk)
• Mental Capacity Act 2005 (legislation.gov.uk)

Related articles

• Equality Act, housing disrepair and reasonable adjustments