The starting point: Mental Capacity Act 2005
When considering any issue of capacity, the starting point is always the Mental Capacity Act 2005.
The key principles are:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person should not be treated as unable to make a decision unless all practicable steps have been taken to help them do so without success.
- A person is not to be treated as lacking capacity simply because they make an unwise decision.
In practical terms, social landlords should always begin from the presumption that a resident has capacity. However, concerns may arise from information received, engagement with support services, medical evidence, or the resident’s behaviour. Sometimes the behaviour itself may be the trigger for further enquiries – for example, a sole occupier repeatedly shouting throughout the night or exhibiting behaviour which appears irrational or self-neglectful.
The Mental Capacity Act protects vulnerable people aged 16 and over who may be unable to make certain decisions for themselves. Importantly, capacity is not an all-or-nothing concept.
Mental capacity is the ability to make a specific decision at the time that decision needs to be made.
A person may have capacity to make some decisions but not others. Equally, capacity can fluctuate over time. For example, a person with schizophrenia may have capacity while engaging with treatment and taking medication, but may lack capacity during periods of relapse.
It is therefore essential to consider capacity at the material time.
Diagnosis does not equal lack of capacity
A common misconception is that a diagnosis automatically means a person lacks capacity.
That is not the case. There is an important distinction between:
- Mental health;
- Mental capacity; and
- Capacity for the purposes of legal proceedings.
Many individuals living with significant mental health conditions retain full decision-making capacity.
Litigation capacity
Litigation capacity concerns whether a person can participate in legal proceedings and provide instructions about the case.
The question is:
Is the party capable of understanding, with the assistance of such proper explanation from legal advisers and experts as the case may require, the issues on which their consent or decision is likely to be necessary during the proceedings?
The threshold is not exceptionally high. A person will not necessarily lack litigation capacity simply because they struggle with complex information.
The court will consider whether the individual can:
- Understand the issues in the proceedings.
- Receive and understand legal advice.
- Weigh relevant information.
- Make decisions about the conduct of the case.
- Communicate those decisions to their representatives.
Importantly, a person should not be regarded as unable to understand information if they can understand an explanation given in broad terms and simple language.
Where a party lacks litigation capacity, a Litigation Friend will usually be required.
Wookey capacity
In social housing litigation, particularly in injunction and anti-social behaviour cases, it is also important to consider Wookey capacity. This is a separate and narrower issue.
The question is whether the individual has sufficient understanding to comprehend what an injunction or court order requires of them.
The court will typically consider whether the individual can:
- Understand the terms of the order.
- Understand what behaviour is prohibited or required.
- Appreciate that breaching the order would be wrong.
- Understand the consequences of non-compliance.
Unlike litigation capacity, Wookey capacity focuses on the individual’s ability to understand and comply with the specific order being sought.
This issue frequently arises in anti-social behaviour injunction cases, committal proceedings and cases involving vulnerable tenants.
Key takeaways for social landlords
If you would like to discuss further, please get in touch with our housing management team.