WB v W District Council  EWCA Civ 928
"This appeal is about when a person who is homeless and suffers from mental illness may apply for housing under Part VII of the Housing Act 1996. ... The difficulty for the appellant in this case, WB, is that it has been held she does not have capacity to make the decisions necessary to complete the process of applying for accommodation as a homeless person. In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need..."
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WB v W District Council (Equality and Human Rights Commission intervening)
2018 Jan 24; April 26 .
Arden, Lewison, Asplin LJJ
Local government— Homeless persons— Mental disorder— Homeless housing applicant found to be incapable of managing her affairs— House of Lords’ authority providing homeless person lacking mental capacity not treated as priority need for purposes of housing legislation— Whether exclusion of persons lacking mental capacity an obsolete statutory provision— Whether current housing legislation to be given Convention-compliant interpretation so as to place applicants for priority housing with mental disability on same footing as those without disability— Housing Act 1985 (c 68), s 59(1)— Housing Act 1996 (c 52), s 189(1) — Human Rights Act 1998 (c 42), s 3 — Mental Capacity Act 2005 (c 9), s 19(6)
The defendant local housing authority refused the applicant’s application for assistance as a homeless person under Part VII of the Housing Act 1996 on the basis that while she was in priority need under section 189(1) of the Act she had become homeless intentionally. The applicant’s appeal was adjourned part heard as the judge determined that she lacked capacity to conduct litigation and appointed the Official Solicitor on her behalf. In subsequent Court of Protection proceedings declarations were made that the applicant lacked capacity to conduct proceedings and to make final decisions as to where she should live and therefore was without capacity to apply for assistance under Part VII. The housing appeal was resumed and the judge found that the applicant was incapable of managing her affairs and that he was bound by House of Lords’ authority, that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as a person in priority need for the purposes of section 59(1)(c) of the Housing Act 1985 and therefore was not eligible for housing assistance as a homeless person. Section 189(1)(c) of the 1996 Act and section 59(1)(c) of the 1985 Act were in the same terms. On her appeal the applicant contended that: (i) the exclusion of persons lacking mental capacity was an obsolete statutory provision; or (ii) section 189(1) could be interpreted, using section 3 of the Human Rights Act 1998, in a way that put applicants for priority housing with mental disability on the same footing as those with no such disability; or (iii) the effect of the House of Lords’ authority was simply to prevent a person from signing a tenancy agreement but allowed them to make an application for housing assistance.
On the applicant’s appeal—
Held, appeal dismissed. (1) The exclusion of a person with a disability from Part VII of the Housing Act 1996 was not obsolete. Parliament had chosen to retain the concept of priority need in the 1996 Act and, since the Human Rights Act 1998, had built on the legislative scheme for housing homeless persons and had not taken any steps to reverse the House of Lords’ authority. Where the courts had interpreted a term in an enactment and Parliament made further legislative provision using the same term, it was presumed to have chosen that the same meaning should apply in legislation re-enacting the previous legislation or similar legislation. In the instant case it was clear that Parliament had successively built on the relevant provisions of the 1985 Act, the same meaning should be presumed to apply and there was nothing to rebut that presumption. Moreover, neither the 1998 Act nor the Equality Act 2010 in terms amended the relevant provisions of the 1996 Act (paras 22, 23, 26, 27, 30, 41, 42, 52, 71, 72).
Barras v Aberdeen Steam Trawling and Fishing Co Ltd., HL(Sc) and R v Oldham Metropolitan Borough Council, Ex p Garlick  AC 509Not on Bailii, HL(E) applied.
Ghaidan v Godin-Mendoza, HL(E) and R (N) v Lewisham London Borough Council ., SC(E) considered.
(2) Section 189(1)(c) of the 1996 Act could not be interpreted, using section 3 of the 1998 Act, so as to place applicants for priority housing with mental disability on the same footing as those with no such disability. To interpret Part VII of the Housing Act 1996 afresh would not be to interpret those provisions but to give them a meaning that it was clear from legislative history was contrary to that which Parliament intended. While the absence of a Parliamentary intention to attach a Convention-compliant interpretation to legislation was not a bar to the courts adopting such an interpretation under section 3 of the 1998 Act, a distinction should be drawn between that situation and one in which the Convention-compliant interpretation had been rejected by Parliament by express words or other inconsistent legislative action (paras 30, 64, 71, 72, 73).
(3) Pursuant to section 19(6) of the Mental Capacity Act 2005 a deputy appointed to make decisions about the personal welfare or property and affairs of a person who lacked capacity could be given the power to make an application under Part VII of the 1996 Act, including power to make the various choices that an applicant might be required to make, with the deputy being regarded as agent of the person without capacity when acting within his agency. The House of Lords’ authority, which considered only contractual agency, was not a bar to the statutory agency under section 19(6) of the 2005 Act (para 34).
Martin Westgate QC and Michael Marsh-Hyde (instructed by Shelter Legal Services) for the applicant.
Wayne Beglan (instructed by W District Council) for the local housing authority.
Helen Mountfield QC (instructed directly) filed written submissions for the intervener.
Reported by: Nicola Berridge, Solicitor