Mental capacity and housing decisions: a guide for tenants and carers

The Mental Capacity Act 2005 is the law about making decisions for people who may not be able to make those decisions themselves. Some housing decisions fall under this law. This includes whether to report disrepair, to make a claim, or to accept an offer of a home. Here we cover the basics and what they mean for tenants.

What is mental capacity?

Mental capacity means being able to make one decision at one time. A person may be able to make some decisions but not others. Capacity is about each decision on its own. You do not simply have it or lack it for everything.

The Mental Capacity Act 2005 sets out a two-stage test for capacity. A person lacks capacity to make a decision if:

1. They have an impairment of, or a disturbance in the functioning of, the mind or brain (for example, due to dementia, learning disability, mental illness, brain injury, or unconsciousness), AND
2. As a result, they are unable to understand, retain, or use the information relevant to the decision, or to communicate their decision

Who can make decisions on behalf of someone who lacks capacity?

A few people and bodies can make decisions for a person who lacks capacity:

Attorney under a Lasting Power of Attorney (LPA)

A person can set up a Lasting Power of Attorney for property and financial affairs while they still have capacity. If they did this, their attorney can make decisions about their housing. This includes saying yes to repairs, agreeing to terms, or running their tenancy.

Deputy appointed by the Court of Protection

If there is no LPA, a court can appoint a deputy. The deputy makes decisions about money and property for the person. A deputy has powers much like an attorney.

The statutory decision-making process

Sometimes a decision must be made and there is no attorney or deputy. The Mental Capacity Act 2005 then sets a statutory process focused on the person's rights, wishes, feelings and welfare. The decision-maker could be a social worker, a care home manager or a hospital doctor. They must involve the person as far as possible and consult relevant family members and carers.

Housing disrepair and mental capacity

A person who lacks capacity to manage their own affairs cannot sign a legal contract. They also cannot give instructions to a solicitor in the usual way. But they still have the right to live in a home that meets legal standards.

If a tenant lacks capacity:

• An attorney under an LPA for property and financial affairs can give instructions to a solicitor on the tenant's behalf to pursue a disrepair claim
• A court-appointed deputy can do the same
• In some cases, the Official Solicitor may act as a litigation friend

Are you a carer or family member of a tenant who lacks capacity? Are you worried about disrepair in their home? Speak to a solicitor about capacity and authority to act. We can check whether there may be a disrepair claim and refer suitable matters to an SRA-regulated panel solicitor.

What about reporting disrepair?

Anyone can report disrepair to a landlord. This can be the person themselves, even if they find it hard to communicate. It can also be a carer, an attorney, a family member, or a support worker. The report does not need to meet any formal standard. It just needs to be in writing and to say what the problem is.

The tenant may find it hard to report the problem themselves. If so, a letter or email from a carer or family member on their behalf is fine.

When should I contact Support for Tenants?

Are you caring for someone who is a tenant in a home with disrepair? Or do you have a power of attorney and need to act for a tenant? We can help you understand 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

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