Litigation friend: bringing a housing disrepair claim on behalf of someone who lacks capacity

If you want to bring a housing disrepair claim on behalf of a family member or loved one who does not have the mental capacity to conduct legal proceedings themselves, you will need to act as their litigation friend. Below, we explain what a litigation friend is and how the process works.

What is a litigation friend?

A litigation friend is a person who conducts legal proceedings on behalf of someone who lacks the capacity to do so for themselves. This includes:

• Children under 18
• Adults who lack mental capacity to conduct litigation (for example, because of dementia, a learning disability, a severe mental health condition, or an acquired brain injury)

The litigation friend represents the protected party's interests throughout the claim. They give instructions to the solicitor, receive correspondence, and make decisions on behalf of the person they represent.

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 appointed by the Court of Protection
• The Official Solicitor (in cases where no suitable person is available)

A litigation friend must be able to fairly and competently conduct proceedings and must not have an interest in the claim that is adverse to the protected party's interests.

How is a litigation friend appointed?

In most housing disrepair cases, a litigation friend does not need to apply to the court in advance. They can simply file a certificate of suitability alongside the claim form confirming that they satisfy the requirements to act. The solicitor handling the claim will guide the litigation friend through this process.

In more complex cases (for example, where there is a dispute about capacity, or where the Official Solicitor needs to become involved), a court application may be needed.

What does the litigation friend need to do?

As litigation friend, you are responsible for:

• Instructing the solicitor on the claim on behalf of the protected party
• Providing information about the protected party's living conditions and the effect of the disrepair on them
• Reviewing and approving documents before they are filed with the court
• Attending hearings if required
• Approving any settlement before it is finalised

Any settlement reached in a claim brought through a litigation friend must be approved by the court to ensure it is in the protected party's best interests. This is an additional step compared to adult claims where the claimant has capacity.

What evidence is needed?

The case proceeds in the same way as any other housing disrepair claim. You will need evidence of:

• The disrepair itself (photographs, reports, correspondence with the landlord)
• The effect of the disrepair on the protected party, including any medical or care records
• The landlord's notice of the disrepair and failure to repair

Medical evidence about the protected party's condition and how the disrepair has affected their health or wellbeing is particularly important where the person cannot give their own account.

Mental capacity and the Mental Capacity Act 2005

The Mental Capacity Act 2005 provides a framework for making decisions on behalf of adults who lack capacity. Capacity is assessed for each specific decision, a person may have capacity for some decisions but not others. The solicitor handling a disrepair claim will need to be satisfied that the protected party lacks capacity to conduct the litigation themselves.

When should I contact Support for Tenants?

If you want to bring a housing disrepair claim on behalf of a family member who lacks capacity to do so themselves, we can advise on your 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)

Sources

• Mental Capacity Act 2005 (legislation.gov.uk)

Related articles

• Equality Act, housing disrepair and reasonable adjustments