You are using an outdated browser. Please upgrade your browser to improve your experience and security.

Focus on: mental capacity and homelessness

Posted on 19/08/21 in Housing Matters

Focus on: mental capacity and homelessness 

People with a mental impairment restricting their ability to make decisions about their own welfare or money are protected by the Mental Capacity Act 2005 (MCA). The MCA sets out the principles for dealing with anyone who lacks mental capacity.  

A decision about someone’s mental capacity is a legal one. The decision-maker is called the ‘assessor’. The assessor could be a family member, social worker, advice worker or housing officer – anyone who has to assess a person’s decision-making ability.  

The decision that someone lacks mental capacity should not be taken lightly. The MCA states that everyone should be assumed to have capacity, even if they have a particular medical diagnosis or a history of making unwise decisions. Refusing someone services, including housing, based on a mental health problem is unlawful discrimination.  

The Court of Protection can deal with disputes about a person’s mental capacity and make decisions for them, if appropriate. It can appoint a deputy to make decisions for the person who lacks capacity. 

Homelessness 

A local authority cannot accept a homeless application from a person who lacks mental capacity. If the local authority assessor is in doubt about a person’s capacity, they can ask for a second opinion from a medical professional. They must follow the MCA Code of Practice in reaching their decision. 

If the local authority assessor decides the applicant lacks capacity, they should look at what other support the applicant is entitled to. Anyone who lacks capacity to make a homeless application will be extremely vulnerable and could have other physical and mental impairments. The applicant might already have someone to make decisions on their behalf. The Office of the Public Guardian keeps records about who has a power of attorney or court appointed deputy to act for them.  

Adult social care services have a duty under the Care Act 2014 to assess the care and support needs of people who lack mental capacity. The assessment must involve the person and their carer, or anyone else with an interest in the person’s care needs. Social services must prepare a care and support plan, which might be paid for in full or in part by the local authority. The person’s financial resources are assessed, and a budget is prepared as part of the process.  

Advocacy and advice 

The MCA created a statutory advocacy service for people who lack mental capacity to support them in decision making. They are called independent mental capacity advocates (IMCA). IMCAs can help people make decisions about where they live and the care they receive. They can challenge decisions about the person’s accommodation and take the case to the Court of Protection if necessary.  

People who lack mental capacity cannot give instructions to an adviser or solicitor about legal disputes. The courts can appoint a litigation friend to deal with court proceedings. A family member, Court of Protection deputy or IMCA could be appointed. If there is no one suitable, the Official Solicitor acts as litigation friend.  

GOV.UK has more information about litigation friends and court proceedings.  

Read more about mental capacity and homelessness in homeless applicants who lack mental capacity on Shelter Legal.