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5.1.3 Termination of Tenancy where the Tenant lacks the Mental Capacity to make this Decision: Practitioner Guidance

RELATED CHAPTERS

Mental Capacity Act 2005 Policy and Practice Guidelines

Mental Capacity Act 2005 - Guidance for Best Interests Meeting

AMENDMENT

This chapter was updated in October 2016 and should be re-read.


Contents

  1. Background and Principles
  2. Process for Ending a Tenancy
  3. Forms and Documents: Who Does What

    Appendix 1: Application to the Court of Protection Referral Form

    Appendix 2: Private Landlord Template Letter

    Appendix 3: Housing Benefit Guidance


1. Background and Principles

If a person lacks the mental capacity to enter into or terminate a tenancy agreement and there is not already a Lasting Power of Attorney (LPA) or Court Appointed Deputy (CAD) in place with the authority to do this, then authority from the Court of Protection (CoP) must usually be acquired. The Mental Capacity Act (MCA) 2005 makes provision for Best Interest decision making by social care and health practitioners and informal carers in relation to care and treatment, but this does not cover legal contracts such as tenancy agreements.

This guidance is to facilitate the ending of tenancies in line with current legislation (principally the MCA and Deprivation of Liberty Safeguards (DoLS) and housing/tenancy law), taking proper account of the person’s needs and best interests and providing protection from unsound or discriminatory decision making. A person centred and Human Rights based approach, with particular reference to Article 5 (right to liberty and security) and Article 8 (right to respect for private and family life) should be embedded in all contacts with all tenants.

This guidance applies principally to the termination of tenancies within Brighton and Hove City Council stock (BHCC), and Housing Associations. Where the person is fully funded  through NHS Continuing Health Care, arrangements are in place for BHCC legal Team to take on this work on behalf of the CCG, and the responsible Nurse Assessor should refer directly to: Sandra.O’brien@brighton-hove.gcsx.gov.uk.

Requirements for ending a private sector tenancy may be different and depending on the status of that tenancy an application to the CoP may not be needed. However, advice should be sought if there are circumstances where an application to the Court of Protection may be necessary for other reasons, e.g. the tenant objects to leaving their tenancy. Practitioners should contact the private sector landlord, ensure they are aware of the situation and clarify respective responsibilities.

This guidance is internal. Non BHCC landlords should obtain their own legal advice as needed.

Regardless of the nature of the tenancy an authorisation under the Deprivation of Liberty Safeguards may already be in place, or the tenant’s situation may be such that a request for authorisation under the Deprivation of Liberty safeguards is indicated. Practitioners involved in considering the need to make arrangements to end a tenancy should consider this at the outset to ensure a ‘joined up’ approach to all contacts with tenants.

As long as there is a tenancy in existence, the tenant is bound to pay the rent whether or not they are in physical occupation of the property. If the outcome of a Best Interest decision is that a tenant does not return to their tenancy, this guidance aims to support subsequent actions being taken in a timely manner in order to:

  • Limit the tenant’s indebtedness to the council / HA/ private landlord where rent continues to be due whilst the tenancy issue is being lawfully determined;
  • Deal sensitively and lawfully with the tenancy and the tenant’s belongings;
  • Mitigate Housing Benefit payments;
  • Bring properties back into use as quickly as possible whilst protecting the interests and assets of Adult Social Care and Sussex Partnership Foundation Trust clients.

Where there is another person living with the tenant, the practitioner must establish with the person /housing officer if they, or any other person, has any entitlement to ‘inherit’ the tenancy.

For the purpose of this guidance, the term ‘Practitioner’ is used as a generic term which may apply to a Social Worker, Care manager, Community Psychiatric Nurse or other care co-ordinator. Housing Officers and Scheme Managers may also have a role/responsibility in the arrangements.

Creation of tenancies

If the person lacks capacity to sign a tenancy agreement an application to the Court of protection may not always be required by the landlord. The Court of protection has provided guidance about the creation of tenancies - see 'Applications to the Court of Protection in relation to tenancy agreements'. If having considered this, a practitioner has concern about lawfulness or security in relation to the creation of a tenancy which has not been authorized through the court of Protection they should initially discuss with their manager and seek legal advice as needed.


2. Process for Ending a Tenancy

The following process should be followed after a person is admitted to hospital, residential or other placement away from their own home.

  1. The practitioner must establish with the person or e.g. relatives, Protection of Property Officer, that arrangements are in place to ensure that the person’s property and finances are secure and overseen as needed. Property means the tenancy and the contents of their home (see Care and Support Statutory Guidance);
  2. The practitioner establishes whether there is an existing Lasting or Enduring Power of Attorney or Court Appointed Deputy and confirms the nature of their authority. If there is no person with the legal authority to end the tenancy, the Practitioner must check whether there is anyone (e.g. relative) appropriate, able and willing to make the application to the Court of Protection to end the tenancy, and what support or advice they might need to do this. (see 7-9);
  3. If the outcome of a needs assessment is that the person’s needs cannot be met at home, this will be evidenced within the assessment documentation. A short term placement may be recommended in the first instance. Any tenancy related matter must be clearly summarised and highlighted with relevant timescales whenever there is a change of responsible Team or care co-ordinator;
  4. If, following review of needs, the recommendation is that the person does not return to their home address and the person is assessed to lack capacity to make this decision the FACE template will be used to record the capacity assessment and best Interest decision and evidence how decisions have been reached. It is important that all decision specific capacity assessments evidence the steps that have been taken to maximize the person’s understanding of the situation and options available to them. 39 Essex Street Chambers have issued a useful summary guidance for assessing capacity - see 'Mental Capacity Law Guidance Note - A brief guide to carrying out capacity assessments';
  5. There may be some situations where the person does not have capacity to make the decision about their future accommodation and support needs, but does have capacity to make the decision to end their tenancy. Whilst the presumption of capacity remains, where there is any doubt about this, a capacity assessment should be carried out and evidence of capacity/incapacity documented on the FACE template. This is because of the significance of the decision and potential for challenge at a later date. The Housing Officer/Landlord and relatives should be consulted and involved as appropriate in the determination, and if the person has capacity, be involved as appropriate to witness the signing of the tenancy termination documents;
  6. Where the situation is complex and one or more formal best interest meetings are required before a final decision is made, the practitioner should refer to the Formal Best Interest meeting guidance and recording Template;
  7. If there is no person with the legal authority to end the tenancy, the Practitioner must check whether there is anyone (e.g. relative) appropriate, able and willing to make the application to the Court of Protection to end the tenancy, and what support they might need;
  8. A relative may be willing to take this on if e.g. a Court Appointed Finance Deputy is also needed and they intend to take on this role. If so, their application should include the request for an order to authorise the ending of the tenancy in advance of Deputyship being agreed, as the latter can take some months. They can request, using a COP9 within the application, a one off order to end the tenancy in advance of the Deputyship being granted. The Practitioner may still be required to provide information to inform and support the application;
  9. The Practitioner should confirm the relative knows where to get further advice. The CoP customer service helpline Tel: 0300 456 4600 can provide information, and Carers’ or other Voluntary Organisations may also be able to offer free ½ hr legal advice. If relatives are reluctant or unclear about the process, this is likely to result in delays. It must be clearly established who is taking responsibility and who they need to liaise with regarding progress;
  10. The practitioner should seek agreement to pass the details of the applicant (e.g. relative, solicitor, Local authority) to the Housing Officer with a named person to contact;
  11. If the person is in receipt of Housing Benefit, the Practitioner/relative will ensure that Housing Benefits are informed of the person’s previous intention to return home (Appendix 3: Housing Benefit Guidance), that the matter is being referred to the CoP and that a final decision that the person will not return home cannot be confirmed without the authority of the Court. This will ensure that any entitlement to Housing benefit does not cease prematurely;
  12. If there are complex legal housing (including private sector tenancy matters) or social issues, the practitioner should refer to Simon.Court@brighton-hove.gcsx.gov.uk (Senior Housing Lawyer) or Nicole.mouton@brighton-hove.gcsx.gov.uk (Lawyer, Social and Education Services) as needed.


3. Forms and Documents: Who Does What

  1. Once it is established that the person’s needs cannot be met at home, that they lack capacity to make the decision to end their tenancy and there is no existing authority to end it, or arrangements in hand to acquire such authority, the practitioner must complete the referral form (Appendix 1: Application to the Court of Protection Referral Form) and send it to BHCC Finance Team ASCincomessection@brighton-hove.gov.uk. Where the person is fully funded  through NHS Continuing Care, arrangements are in place for BHCC legal Team to take on this work on behalf of the CCG, and the responsible Nurse  Assessor should refer directly to sandra.o’brien@brighton-hove.gcsx.gov.uk.
  2. The referral must be agreed and signed by the practitioner’s supervisor/line manager who will have a role in providing supervision and support in relation to the information/evidence needed for the application and managing timescales. Information on the referral form will determine the nature of the application, including anyone, in addition to the person who is the subject of the proceedings, who needs to be ‘notified’ or included as a ‘respondent’ (see 5) and whether a fee remission/exemption may be indicated. If referrals are incomplete or unauthorized, the application will not be progressed, and this will cause delays;
  3. If the person lacks capacity in relation to managing their finances and a Finance Deputy or appointee is also needed, the practitioner should include a copy of the capacity assessment recorded on the FACE documentation, which evidences this;
  4. The Practitioner must request a copy of the tenancy agreement from the Housing officer/landlord which will be included in the application as an exhibit;
  5. The practitioner must provide correspondence details of anyone they reasonably believe has an interest and who should be ‘notified’ about the application. This might include close family members or friends. CoP guidance advises at least 3 people to be identified if possible. The practitioner should also include details of anyone who should be included as a ‘respondent’ which means they ought to be heard by the court. This might be a relative or other person living with the tenant. ‘Respondents’ will receive copies of all documents relating to the application, including the practitioners CoP 24 witness statement;
  6. The application requires various forms to be completed in order to provide the information and evidence required. Once the Finance Team receives the Practitioner referral, a Finance Officer will be allocated to manage the application. The subject of the application is liable for any application fee. If they are in receipt of particular benefits/on a low income, fees may be waived or reduced. The Practitioner and Finance Officer should liaise as needed throughout the process to ensure any delays are picked up and addressed. You can access the relevant Court of Protection Forms by searching ‘Court of Protection’ under ‘available types’. Forms can be ‘saved’ provided the user’s computer has adobe Acrobat installed;
  7. COP 24 Witness Statement
    It is the responsibility of the Practitioner to complete this. This should be written in numbered paragraphs and provide evidence of compliance with the Mental Capacity Act when concluding that the tenancy should come to an end. It should include:
    • Practitioner’s role and nature of their involvement with the person;
    • What the evidence is based on (e.g. contact with person from x date, social care/health records, liaison with other professionals/family involved);
    • Summary of relevant background to admission to hospital/placement/other residence, current situation, how best Interest decision(s) has been reached, including the matter of ending the tenancy;
    • Information from any relevant existing reports/documents (e.g. assessment of needs, Best Interest meeting, IMCA report) can be summarized in the COP24 witness statement and if appropriate particular documents can be attached, as numbered exhibits;
    • Details of any authorization under the deprivation of Liberty safeguards;
  8. If there are exceptional circumstances such that the practitioner believes that notifying the person would be detrimental to their health or wellbeing and not in their best interests, evidence must be provided in the witness statement to this effect. A request can then be made to the Court to agree to dispense with this requirement;
  9. The COP3 Mental Capacity Assessment: Registered Social Workers alongside registered health practitioners, including Community Psychiatric Nurses, can provide assessments of capacity as evidence for applications to the Court of Protection. Current guidance for BHCC and seconded staff is that SWs practicing in the Assisted and Supported Year in Employment do not complete CoP3 forms;
  10. Where a care manager or SW (ASYE) is already acting as care coordinator and is completing the Witness statement (CoP24) it may be appropriate for their supervisor or other registered practitioner who is familiar with the person to work alongside them to carry out the capacity assessment and complete the CoP3;
  11. If the referring practitioner is not able to complete the COP3 mental capacity assessment, their referral form must provide details of which registered health practitioner has agreed to carry out this assessment so that the finance team can send them the CoP3. The application cannot be lodged without this. If the person already has e.g. an appointee for finances, the appointee should be advised that there may be a charge attached to this;
  12. Once the Finance Team has received the completed COP24 and COP3, the application can be lodged. The Finance team will complete the Application Form (COP1) and also the COP1A if a Finance Deputy is needed;
  13. After the Court has acknowledged the application, the allocated Finance Officer will notify interested parties in writing using the form COP15, and will provide evidence that they have done so on the Form COP20B. The subject of the application is notified in person with a COP14, and the COP15 is completed to provide evidence of this;
  14. If at the point of notification, the person is not known to be objecting, the Finance Officer will visit the person and complete the notification. If the person is known to be objecting to the ending of their tenancy, it will be the practitioner who fulfills this role. The notification process includes the serving of papers (COP 5) and will include supporting the person to inform the court of any objection they might have to the application;
  15. If on receipt of the papers, the Court issues an interim order that the person file a statement setting out the nature of their objections, arrangements must be made for the person to be supported to do this, or for the practitioner to file a further CoP24 witness statement outlining the relevant circumstances. Legal advice should be sought if there is any doubt about this;
  16. The Finance officer will not scrutinise the practitioner’s COP 24 witness statement or CoP3 mental capacity assessment from a ‘practice’ point of view, and it is received by them on the basis that the practitioner is satisfied with the evidence provided and that it has been agreed and authorized by their supervisor/line manager;
  17. Once received, the Final order to terminate the tenancy will be passed to the practitioner and the Housing Officer. The practitioner should contact the relevant housing officer or landlord, and Housing Benefit as soon as possible to agree the notice period. The Practitioner must ensure arrangements are made e.g. through family, Protection of Property, or other to clear the property and inform all relevant parties;
  18. Any interim orders received by the finance Team should be passed to the practitioner and referred to legal if there is any doubt about what is required.

If there are MCA related queries where the practitioner and their line manager need further advice/information, contact Edwina.Sabine@brighton-hove.gcsx.gov.uk.


Appendix 1: Application to the Court of Protection Referral

Click here to view Appendix 1: Application to the Court of Protection Referral Form.


Appendix 2: Private Landlord Template Letter

Click here to view Appendix 2: Private Landlord Template Letter.


Appendix 3: Form Housing Benefit Guidance

Click here to view Appendix 3: Housing Benefit Guidance.

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