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

The Mental Capacity Act 2005 sets out the legal framework for making decisions on behalf of people who may lack the capacity to make certain decisions for themselves. Housing decisions, including whether to report disrepair, pursue a claim, or accept an offer of accommodation, can fall within this framework. We cover the basics and what it means for tenants.

What is mental capacity?

Mental capacity is the ability to make a specific decision at a specific time. A person may have capacity to make some decisions but not others. Capacity is decision-specific, you do not either have or lack capacity in a general sense.

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?

Several people and bodies can make decisions on behalf of a person who lacks capacity:

Attorney under a Lasting Power of Attorney (LPA)

If the person set up a Lasting Power of Attorney for property and financial affairs while they still had capacity, their attorney can make decisions about their housing, including authorising repairs, agreeing to terms, or managing their tenancy.

Deputy appointed by the Court of Protection

If there is no LPA, a court can appoint a deputy to make decisions about financial and property matters on behalf of the person. A deputy has similar powers to an attorney.

Decisions made in best interests

Where a decision must be made and there is no attorney or deputy, the person or organisation responsible for the decision (for example, a social worker, care home manager, or hospital doctor) must make the decision in the person's best interests. This is a legal standard, it requires consulting with family members, carers, and the person themselves as far as possible.

Housing disrepair and mental capacity

A person who lacks capacity to manage their own affairs cannot sign a legal contract or give instructions to a solicitor in the usual way. However, their right to live in a property that meets legal standards still exists.

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

If you are a carer or family member of a tenant who lacks capacity and you are concerned about disrepair in their home, speak to a solicitor, we can advise on how the claim can be brought.

What about reporting disrepair?

Anyone can report disrepair to a landlord, the person themselves (even if they have difficulty communicating), 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 identify the problem.

If the tenant has difficulty communicating the report, a letter or email from a carer or family member on their behalf is entirely valid.

When should I contact Support for Tenants?

If you are caring for someone who is a tenant in a property with disrepair, or if you have a power of attorney and need to act on a tenant's behalf, 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)