tenancies, mental capacity and housing benefit
The case of Wychavon District Council v EM (29 March
2011), has shown, again that those without sufficient mental
capacity cannot enter into a tenancy agreement and the consequences
this has for entitlement to housing benefit.
The claimant, EM, was born in June 1991 with profoundly
physically and mental disabilties. Her parents had a home
specially constructed for her and stated that they could not afford
to continue providing this home unless they could receive rent from
EM to offset the mortgage payments they are having to make in
respect of it.
A tenancy agreement dated 26 February 2009 expressed to be
between the claimant’s father and the claimant in which the father
is described as the landlord and the claimant as the tenant. It was
expressed to be for an indefinite term from 20 December 2008 at a
rent of £694.98 per month. It was signed by the father as landlord,
but in the space for EM’s signature it is stated that she "is
profoundly disabled and cannot communicate at all". Although in
February 2010 an order was made in the Court of Protection giving
her mother power to act in certain respects on behalf of the
claimant, there was no such power in place before that. The result
was that there was nobody with power to contract on behalf of the
claimant before that time.
The court concluded that EM had no liability to pay rent by
reason of a document to which she was not a party and of which she
had no knowledge or means of knowledge. Nor was there any other
basis on which any liability for rent could be imposed on her.
Therefore, there was no tenancy agreement and no entitlement to
housing benefit.
what this means for social landlords
A tenancy agreement requires two parties – the landlord and the
tenant. Here the claimant was not, and was incapable of being, a
party to any agreement. Regardless of her capacity to consent, she
could not and did not communicate any agreement to the tenancy and
she could never have been asked to. There simply was no such
agreement, and therefore no liability to pay rent.
The absence of a signature is not by itself fatal if there is in
fact an oral agreement or a contract to be inferred from all the
facts. The real issue was whether the parents could bind EM. The
problem was that they had no such power without the authority of
the Court of Protection, which they did not have.
Social landlords should always take steps to ensure that a
person has sufficient capacity to enter into a tenancy agreement,
or that someone else has appropriate authority to enter into such
an agreement on their behalf.
