Court of Protection powers that help vulnerable tenants who hoard or refuse access to remain in their homes

By Bethan Harris of Garden Court Chambers and Neil Jeffs of Sternberg Reed

The situation of tenants who hoard excessive amounts of goods so as to put their and other tenants’ health and safety at risk, or who repeatedly refuse access for essential repairs, can be very difficult to resolve. They are vulnerable individuals whose actions put them in serious breach of tenancy, and who often end up facing eviction from their long-term settled residence or who experience repeated eviction from one property after another.

In cases where the inability to comply with the terms of the tenancy is due to mental impairment or disorder, the Court of Protection may provide a solution. A “legal first” in this area was described in the New Law Journal (“When protection matters”, Robert Eckford, New Law Journal, Specialist Legal Update, 22 April 2011), involving an application to the Court of Protection in respect of a tenant who suffered a paranoid delusional disorder. There are signs of an increasing awareness among housing and social care practitioners of how this jurisdiction can help, and an increasing willingness to use it.

The way this works is by seeking an order under s 16 (2)(a) MCA 2005 with the effect of making a decision on behalf of the tenant who lacks capacity that arrangements should be put in place that ensure compliance with the relevant terms of the tenancy. This is by authorising contractors and/or relevant social care staff to enter the person’s home even where the person does not consent, in order for the essential repairs or clearing out to be done.

It is worth noting that the jurisdiction can be used, not just for one-off interventions, but also to authorise on-going arrangements that can be employed periodically with the frequency required during the period of occupation of the property, so long as the tenant continues to lack capacity in the relevant regard and the best interests assessment that underlies the intervention remains the same. The order under s 16(2)(a) endorses a carefully drawn-up procedure for gaining access to the tenant’s home (whether or not the tenant agrees to the access) for the purpose of repairs/cleaning/removal of goods. The plan specifies who will be involved, the relevant safeguards for protecting the welfare of the person concerned throughout the procedure, and the regularity with which the procedure may be employed.

The following practice points may assist when considering an application to the Court of Protection for such an order:

1. the need for clear and authoritative expert evidence as to lack of capacity within the meaning of ss 2 – 3 MCA 2005 to make the relevant decisions in relation to compliance with the tenancy (e.g. decisions as to allowing access, or removal of excessive goods);
2. at the permission stage, the need to make out a good case as to why the order is in a person’s best interests, and, following the grant of permission, in order to progress the application, the need for expert evidence as to why the plan is in the person’s best interests. This may be obtained from professionals already involved with the individual concerned by seeking a direction under s 49 MCA 2005. S 1(6) MCA 2005 which requires that regard must be had to whether the purpose for which the act is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action, is particularly relevant. The wishes and feelings of the person concerned are also likely to be particularly important on the s 4 best interests balance sheet. This may include the person’s strong desire to be able to continue to live independently in the community, when their ability to do so very much in question without an intervention of the kind sought to be authorised;
3. the question of who should make the application to the Court of Protection: any person with a sufficient connection with the person concerned can make an application (s 50 MCA 2005), but, as the procedures involved will require the resources of adult social care services/community mental health team, there would need to be a willingness on the part of the local authority at least to engage in the investigation as to whether the plan is in the person’s best interests. Of course there may be disagreement over whether this type of procedure should form part of the care package for the individual concerned, but in some cases all the indications will point to it being overwhelmingly the better solution to a chronic problem, and a cheaper one at least in the longer term;
4. the need for the procedure to be carefully defined in a detailed plan, to include safeguards for the person concerned e.g. advance notice of each visit, the presence of their care co-ordinator and/or a representative from the Community Mental Health Team;
5. where it is contemplated that a forced entry may be effected and/or there might be resistance from the person concerned, the need for the police to be on hand. They should be consulted and their role clarified in advance ;
6. if goods are to be removed, the need for the plan to identify the precise extent of the authority to do so (e.g. only to the extent necessary to avoid serious breach of tenancy and only goods that would generally be regarded as of no value), and consideration given to whether and to what extent certain categories of goods should be removed to storage, rather being sent for recycling or disposed of.

Every case is highly individual, and orders of this kind are unlikely to become a routine remedy in cases of refusal of access or hoarding where a person lacks mental capacity. An intrusion into a person’s home against their wishes will always require careful justification. Nevertheless there have been cases where an order from the Court of Protection of this kind has offered the solution for a vulnerable tenant where no other less restrictive solution to their housing needs can be found.