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||Neutral Citation Number:  EWCA Civ 928
||Case No: B5/2017/0243
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Norwich Combined Court Centre
His Honour Judge Moloney QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LEWISON
LADY JUSTICE ASPLIN
|| WB (a protected party through her litigation friend the Official Solicitor)
||- and -
||W District Council
||Equality & Human Rights Commission
Martin Westgate QC & Michael Marsh-Hyde (instructed by Shelter Legal Services) for the Appellant
Wayne Beglan (instructed by W Council) for the Respondent
Helen Mountfield QC (instructed by the Equality & Human Rights Commission) filed written submissions
Hearing date: 24 January 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
LADY JUSTICE ARDEN :
- 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 ("HA 1996").
- A local authority owes a housing duty to a person in this situation to secure accommodation for her. The duty is helpfully summarised in the Homelessness Code of Guidance for Local Authorities ("the Code") published on 22 February 2018 ("2018 Code") (an updated version of the Code available at the hearing of this appeal):
Main housing duty
15. If homelessness is not successfully prevented or relieved, a housing authority will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally. Certain categories of household, such as pregnant women, families with children, and households that are homeless due to an emergency such as a fire or flood, have priority need if homeless. Other groups may be assessed as having priority need because they are vulnerable as a result of old age, mental ill health, physical disability, having been in prison or care or as a result of becoming homeless due to domestic abuse.
16. Under the main housing duty, housing authorities must ensure that suitable accommodation is available for the applicant and their household until the duty is brought to an end, usually through the offer of a settled home. The duty can also be brought to an end for other reasons, such as the applicant turning down a suitable offer of temporary accommodation or because they are no longer eligible for assistance. A suitable offer of a settled home (whether accepted or refused by the applicant) which would bring the main housing duty to an end includes an offer of a suitable secure or introductory tenancy with a local authority, an offer of accommodation through a private registered provider (also known as a housing association) or the offer of a suitable tenancy for at least 12 months from a private landlord made by arrangement with the local authority. (Italics added)
- So, it is clear that a person with mental ill health may be a person to whom a local authority owes a duty to provide accommodation. The process of securing accommodation may include providing interim accommodation in the first instance. Any accommodation secured must be suitable and so the applicant needs to be able to decide whether the accommodation meets the statutory criteria. If she wrongly rejects accommodation that is suitable, she may find that the local authority ceases to owe her the full housing duty.
- 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 for the purposes of section 59(1)(c) of the Housing Act 1985 ("HA 1985"): see R v Tower Hamlets LBC ex parte Ferdous Begum, reported under the name of a conjoined appeal about child applicants, R v Oldham Metropolitan Council ex parte Garlick  AC 509. HA, s 59(1) is in the same terms as HA 1996, s 189 (1). It deals with the priority need of the disabled and provides: "a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside…" In consequence she was not eligible for housing assistance as a homeless person. When I refer to ex parte Ferdous Begum, I refer to that part of the judgment containing the House's decision in R v Tower Hamlets LBC ex parte Ferdous Begum.
Ex parte Ferdous Begum
- In this case the applicant had severe learning difficulties. Her father made an application in his own name for housing but he was found to be intentionally homeless having left accommodation in Bangladesh which was available to him. Solicitors then made an application on the daughter's behalf. This was rejected on the basis that she lacked appropriate capacity. The House of Lords (Lord Slynn dissenting) considered that the Housing Act 1985 permitted an application by a vulnerable person, who was capable of independent living, or by a carer of such a person who might be expected to live with her. However, the majority considered that the vulnerable person could not herself apply, if she could not comprehend or evaluate the offer of accommodation or undertake the responsibilities involved in being a tenant.
- The majority reached their decisions by reference to the legislative scheme for applications by homeless persons. Lord Griffiths, with whom the majority agreed, held:
The priority need of the disabled is dealt with in section 59(1)(c) which I will set out again:
"a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside…"
Many vulnerable people are cared for in the community by their relatives or other good-hearted people with whom they live. If such a "carer" should have the misfortune to become homeless then section 59(1)(c) gives him the status of priority need, and provided his homelessness was not intentional, he will qualify for an offer of accommodation which will enable him to continue to look after the vulnerable person.
Other people although vulnerable are nevertheless able to lead an independent existence, albeit sometimes in sheltered accommodation, these people also have the status of priority need and can apply for assistance if they are homeless but not intentionally so. When they are made the offer of accommodation they can decide whether or not to accept it.
But I can see no purpose in making an offer of accommodation to a person so disabled that he is unable to comprehend or evaluate the offer. In my view it is implicit in the provisions of the Act that the duty to make an offer is only owed to those who have the capacity to understand and respond to such an offer and if they accept it to undertake the responsibilities that will be involved.
- The legislative scheme was re-enacted in Part VII of the HA 1996. Section 216 (1) of that Act provides that Part VII is to be interpreted as one with the 1985 Act.
- The decisions in Re Garlick and ex parte Ferdous Begum are reflected in the first sentence of the following passage from the 2018 Code:
Persons making an application
18.8 An application can be made by any individual who has the mental capacity to do so. There is no statutory minimum age, but applications from dependent children should not be considered. A child aged 16-17 may make an application in their own right, and will require a Children Act 1989 assessment to be completed if they are homeless.
- In ex parte Ferdous Begum, the House of Lords referred to the fact that Section 21 of the National Assistance Act 1948 makes alternative provision for persons who lacked mental capacity. That legislation has been replaced by the Care Act 2014. WB contends that this would be less satisfactory than accommodation under the HA 1996, and, for the purposes of this appeal, I am content to accept that that may be so in her case.
The procedural tangle behind this appeal
- WB applied to the W Council under Part VII of the HA 1996 in 2013. The W Council considered that she was in priority need but she had become homeless intentionally. WB appealed against that decision and her appeal succeeded. As a result, there was a further review. WB was unsuccessful on that review. She appealed again to the county court under section 204 of the Housing Act 1996. HHJ Maloney determined, after the appeal had commenced and been adjourned part heard, that she lacked capacity to conduct litigation and appointed the Official Solicitor on her behalf. Proceedings were then started in the Court of Protection where, on 14 December 2015, HHJ Richards made the order set out in the appendix to this judgment. No reasoned judgment for this has been found. It is apparent that what the judge intended was that WB should have housing secured by social services but if she was unwilling to take that accommodation, she should be able to pursue her appeal to the county court if that course was open to her.
- Accordingly, the adjourned appeal was reinstated. However, in December 2016, before the appeal was heard, HHJ Maloney QC found that WB was incapable of managing her affairs. On 21 December 2016, he dismissed her application on the basis of ex parte Ferdous Begum. Counsel for WB submitted that the decision in that case had been rendered obsolete but the judge followed the recent decision of HHJ Sycamore, sitting as a deputy judge of the High Court in R (MT) v Oxford CC  EWHC 795 (Admin), who had rejected arguments that ex parte Ferdous Begum could now be distinguished. The judge held that he was bound by ex parte Ferdous Begum.
- WB does not accept that she is incapable of making decisions as to where she should live, but her arguments on this are not the subject of this appeal.
Intervention by the Equality and Human Rights Commission
- The Equality and Human Rights Commission ("the Commission") has been given permission to file written submissions in this case. We are most grateful to the Commission for its assistance in this way. The submissions are signed by Ms Helen Mountfield QC.
- The Commission's submissions are directed to the question whether the decision in ex parte Ferdous Begum is good law following the introduction of the Human Rights Act 1998 ("the HRA"), and through that legislation the European Convention on Human Rights ("the Convention") and (as a result of Convention jurisprudence) the UN Convention on the Protection of the Rights of Persons with Disabilities ("the UNCPRD"). The UNCPRD became part of UK law in July 2009, and is a source of some of the law on disabilities discrimination. The submissions of the Commission also rely on the Equality Act 2010. This is understandable as that was the way in which the parties had approached the matter. The submissions of the Commission do not address other issues of statutory interpretation, or the question whether the exclusion of applicants with mental disability from the homelessness legislation as a result of ex parte Ferdous Begum has been superseded by legislative change brought about by the Mental Capacity Act 2005 ("the MCA"). That Act now provides a judicial process for making or supervising the making of decisions as to where a person with mental incapacity shall live and as to making a tenancy agreement on that person's behalf. The further issues of statutory interpretation that have emerged have become the critical issues in this Court. In those circumstances, while intending no discourtesy, in the light of my conclusions below, I do not think that I need to deal with the Commission's submissions in detail.
- Mr Westgate points out that the Code of Practice issued under the HA 1996 refers to agents making applications. This may cover all sorts of reasons for establishing an agency, including language difficulty, unavailability, literacy and so on. As to that point, Lord Griffiths in Re Garlick at page 519 expressly contemplated that a person could appoint an agent to make an application on her behalf but only where that she had capacity to make an application herself. That is really the key holding in the decision.
SUBMISSIONS AND DISCUSSION
Appellant's three arguments
- HHJ Richards held that WB had no capacity to decide where she should live and that must mean that she is without capacity to apply under Part VII of the HA 1996. Indeed, WB accepts that we are bound by ex parte Ferdous Begum, unless she succeeds on one of the following arguments: (1) that the exclusion of persons lacking mental capacity can be classed as an obsolete statutory provision ("the obsolescence argument"), or (2) that HA 1996, s 189(1) can be interpreted, using HRA, s.3 in a manner which puts applicants for priority housing with mental disability, which currently prevents them from being an applicant for priority housing, on the same footing as those by persons with no such disability (the "Human Rights Interpretation" argument), or (3) the effect of ex parte Ferdous Begum is simply to prevent a person from signing a tenancy agreement but allows them to make an application (the "Narrow Ratio" argument.) HRA, s 3 provides:
Interpretation of legislation.
3 (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
- It has not been suggested that there is some separate obligation under the UN CRPD in issue in this case. Clearly that Convention envisages that all forms of discrimination against persons with disability should be removed, but it has not been argued that the provisions of a service, such as providing accommodation, for persons with disability must be on the same terms as the same service provided for persons without that disability.
(1) The obsolescence argument and (2) the Human Rights Interpretation
- I can take these two arguments together because I consider that they should be resolved in the same way. It is of course correct that Article 14 of the Convention (prohibition of discrimination) is engaged by discrimination between persons with disability within the ambit of a Convention Article, here Article 8 (right to respect for private and family life).
- It is also correct that in very rare circumstances the Courts may hold that a statutory provision has become obsolete. A prior judicial decision may thus be departed from if it has been implicitly overruled by later case law or statute. Thus, for example, in Beith's Trustees v Beith 1950 SC 66, the Inner House of the Court of Session in Scotland refused to follow a decision of the House of Lords, but this was because there had been legislative change to the contractual capacity of married women, and the previous decision was inconsistent with that even if not directly affected by it. For obvious reasons, this is likely to be a rare situation.
- These authorities are consistent with the strict approach taken to the doctrine of precedent in this jurisdiction. The doctrine of precedent has been described as:
an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules (Practice Statement (Judicial Precedent)  1 WLR 1234)
- Thus, in Miliangos v George Frank (Textiles) Ltd  QB 487 this Court held that it could depart from a decision of the House of Lords and award judgment in a foreign currency. When the case reached the final court, then the Appellate Committee of the House of Lords, it was emphatically stated that the Court of Appeal could not refuse to follow the House of Lords on the ground that the world had moved on: see Miliangos v George Frank (Textiles) Ltd  AC 443.
- Mr Westgate argues that the Courts in effect have read words into the Housing Acts. I do not accept that this is so. In my judgment, the basis of the decision in ex parte Ferdous Begum is that it is implicit in the statute that a person has the capacity to make decisions about the choice of accommodation. The applicant has to decide whether to accept the accommodation offered, which must be suitable accommodation within the meaning of Part VII of the HA 1996.
- Likewise, the courts have a duty under Human Rights Act 1998, section 3 to interpret both primary and secondary legislation, whenever passed, in a way that is compatible with Convention rights. However, this duty does not empower the courts to adopt an interpretation which goes against the "grain of the legislation" (see Ghaidan v Godin-Mendoza  2 AC 557).
- That case is instructive, and there is a parallel between the facts of that case and this case. Ghaidan concerned the same sex partner of a deceased protected tenant. The landlord brought possession proceedings on the tenant's death and the question was whether the surviving partner could claim succession to the protected tenancy under paragraph 2 to schedule 1 of the Rent Act 1977 as being a person living with the deceased tenant "as his or her wife or husband." In an earlier case in 1999 (a pre-incorporation decision, as I shall call a decision made prior to the HRA), the House of Lords had held that this provision did not include persons in a same sex relationship (Fitzpatrick v Sterling Housing Association Ltd  1 AC 27). Following the incorporation of the Convention into domestic law through the HRA, the issue was whether this interpretation was incompatible with Article 14 of the Convention, taken with Article 8. In Ghaidan, distinguishing rather than overruling Fitzpatrick, the House of Lords held, using HRA s 3, that that provision could then be read as including same sex partners. The House thereby upheld the decision of this Court  EWCA Civ 1533  Ch 380, which had also distinguished Fitzpatrick, by implication holding they were not bound by it when considering HRA s 3.
- In Ghaidan, the House of Lords considered the limits of HRA s 3. It was in that context that Lord Rodger (at ) famously used the expression going "with the grain of the legislation", which was cited with approval by Lord Nicholls in the same case and which has been much quoted since:
If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
- In this case, I have no doubt that the Courts could not treat the exclusion from eligibility to apply for priority housing under the HA 1996 as obsolete. This is because Parliament has chosen to retain the concept of priority need in later legislation dealing with the needs of homeless persons. The HA 1996 is not (as Mr Westgate suggests) to be discounted because there is a provision that it is to be read with the HA 1985. Parliament endorsed the concept of priority need in the later Act. The HA 1996 was, of course, passed before the HRA came into force, but since enacting the HRA Parliament has built on the legislative scheme for housing homeless persons on further occasions and taken no step to reverse ex parte Ferdous Begum. For example, the Homelessness Reduction Act 2017 ("the 2017 Act") uses the same term "priority need" as used in HA 1998 and the HA 1985. Parliament also affirmed the concept of priority need in the Homelessness Act 2002 ("the 2002 Act") and the 2017 Act. Both the 2002 Act and the 2017 Act proceed on the basis that a person may have a priority need for housing. The 2017 Act makes several amendments to Part VII of the HA 1996, extending not diminishing its reach. The effect of the 2017 Act is to expand the duties on the authority to assess every applicant's case and agree a plan (through a new s.189A inserted into the HA 1996), to clarify and expand the initial duty to secure accommodation before an offer is made (through a new s.189B inserted into the HA 1996), and to create a new scheme where an applicant deliberately and unreasonably refuses to co-operate with the local authority (through a new s.193A inserted into the HA 1996).
- The principle of statutory interpretation on which I rely for this conclusion is often called the Barras principle, after the decision of the House of Lords in Barras v Aberdeen Steam Trawling and Fishing Co Ltd  AC 402. The principle is that where the courts have interpreted a term in an enactment and Parliament makes further legislative provision using the same term, it is presumed to have chosen that the same meaning should apply in legislation re-enacting the previous legislation or similar legislation. While there are difficulties in applying the principle in some cases, this case seems to me to be a situation where its application is clear because Parliament has successively built on the same legislation (the relevant provisions of the HA 1985). The same meaning should be presumed to apply and there is nothing to rebut the presumption. Moreover, the provisions of the HRA and the Equality Act 2010 (and its predecessors dealing with the rights of persons with disabilities) are well-known legislation but neither of them in terms amends the relevant provisions of the HA 1996.
- In Barras (at 441), Lord Buckmaster described the principle which I have set out in the preceding paragraph as "long" and "well-established." Cases where the principle had been applied can be found in the books, such as Ex p Campbell (1870) LR 5 Ch App 703, 705 and Nadarajan Chettiar v Walouwa Mahatmee  AC 481. The principle can be departed from, for example if it is clear (say) from other provisions of the legislation that the earlier interpretation was erroneous. (However, that possibility has not been suggested on this appeal, and would not be a question for this Court). Lord Loreburn LC in North British Ry v Budhill Coal and Sandstone Co  AC 116 at 127, described the principle as a presumption that the term was being used in the same sense. In other cases, judges have held that Parliament is to be presumed to know the law (see, for example, Re Demerara Rubber Company Ltd  1 Ch 331, 337). The strength of the principle in any given case will depend on whether the context is the same and whether there are differences in phraseology and so on. In this case, there have been refinements in the provisions of Part VII of the HA 96, but the core provisions remain.
- The Supreme Court recently considered the Barras principle in R (CN) v Lewisham LBC  UKSC 62;  1 All ER 783. The issue there was whether a local authority when it had decided that it owed no duty to homeless persons to whom it had provided interim accommodation under HA 1996 Part VII, needed to obtain a court order under the Protection from Eviction Act 1977 ("PEA 1977") before evicting them. The majority considered that the PEA 1977 did not apply. The issue arose as to whether the Barras principle applied to the interpretation of the PEA 1977 because of two decisions of this Court (which are considered for a different purpose by Lewison LJ in his [concurring] judgment below). While Lord Neuberger P, dissenting, considered that there were limitations to the Barras principle and would have required something more than a single decision of the Court of Appeal on the meaning of earlier legislation, no member of the Supreme Court doubted the existence of the basic principle. All the members of the Court agreed that it did not apply in that case. As Lady Hale (also dissenting on the construction of the Protection from Eviction Act 1977) explained (at 833):
I fear that I am also unimpressed by the argument that we should not disturb what has been understood to be the law since the decision of the Court of Appeal in Mohamed v Manek (1995) 94 LGR 211, followed in Desnousse v Newham London BC  EWCA Civ 547,  2 All ER 218,  QB 831. There is no question of Parliament having passed legislation on the basis that the law as stated by the Court of Appeal is correct. The 1977 Act has not been repealed and re-enacted so as to invoke the principle in Barras v Aberdeen Steam Trawling and Fishing Co Ltd  AC 402,  All ER Rep 52. The most that can be said is that Parliament might have amended the 1977 Act so as to reverse or modify the Court of Appeal's decision, if it did not like it, but has not done so.
- In all the circumstances I am satisfied that this Court cannot by a process of interpretation now take the view that the exclusion of a person with disability from what is now Part VII of the HA 1996, pronounced in ex parte Ferdous Begum, no longer applies. For reasons which I shall develop below, the same result obtains under HRA, s 3. To interpret Part VII of the HA 1996 afresh would not be to interpret those provisions but to give them a meaning which it is clear from the legislative history is contrary to that which Parliament intended. The absence of a Parliamentary intention to attach a Convention-compliant interpretation to legislation is not a bar to the courts adopting a Convention-compliant interpretation under HRA, s 3, but a distinction must be drawn between that situation and one in which the Convention-compliant interpretation has been rejected by Parliament by express words or other inconsistent legislative action.
- I also attach importance to the fact that the provision of social housing involves considerable public resources. Of course, Parliament could take the view that priority housing should be available to all adults, irrespective of their mental capacity but this is a step which it has not taken, despite having had several opportunities to do so. Persons who are intentionally homeless, for instance, are excluded. The effect of this Court ruling that the exclusion of a person with disability who cannot understand the choices which the legislation requires her to make is obsolescent may be to cause pressure on local housing stocks, when there is another pool of properties which can be made available through housing associations: see the Order of HHJ Richards set out in the appendix to this judgment. We gave the official solicitor time to consider whether he wished to file submissions in his official capacity for the assistance of the Court, but he decided against this course.
- Mr Westgate also submits that a person could appoint an agent to make the choices on her behalf. That possibility was not there at the time of the 1985 or 1996 Housing Acts. As indicated in paragraph 14 above and amplified in paragraphs 33 and 34 below, this is now possible under the MCA. The question is whether the MCA makes the decision in ex parte Ferdous Begum obsolescent. While I readily accept that if that possibility existed at the time of the decision of the House of Lords in ex parte Ferdous Begum, the House might have reached a different conclusion I do not consider that that result (obsolescence) follows. The House of Lords, when considering agency in that case, was considering contractual agency, and the law on that has not changed.
Current law on decision making about where to live for a person who lacks capacity
- Under MCA, which fundamentally changed the law in this regard, the court may now make a decision about the personal welfare or property and affairs of a person who lacks capacity or appoint a deputy to make decisions on these matters on that person's behalf. MCA s 17 and 18 contain non-exhaustive lists of the powers that may be given to a deputy. They include (in relation to personal welfare) power to decide where that person is to live and (in relation to his property and affairs) power to acquire property. MCA s 19(6) provides that:
(6) A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.
- Thus, the deputy may be given power to make an application under HA 96 Part VII, including power to make the various choices that an applicant may be required to make. The deputy will be regarded as the agent of the person without capacity when acting within his agency. This agency is a statutory construct because under the general law a person without capacity cannot appoint any agent and any agent appointed before the incapacity would be revoked, at least once the agent discovered the lack of capacity. For obvious reasons, the House of Lords in ex parte Ferdous Begum considered only contractual agency so the decision in that case is no bar to the use of the statutory agency created under these provisions of the MCA. I need not go further and consider lasting powers of attorney. In fact, such powers are only valid if a person had capacity when appointing the attorney, and that reduces their practical use in the present situation.
Does HRA s 3 (court's interpretative duty) now apply?
- Since writing this judgment, I have had the benefit of reading the judgment of Lord Justice Lewison. He raises the interesting question whether a Convention-compliant construction of Part VII of the HA 96, permitting applications to be made on behalf of persons with mental disability, should be regarded as "possible" for the purposes of HRA, s 3 as a result of the speech of Lord Slynn in ex parte Ferdous Begum and the unanimous decision of this Court. It is convenient to address that point at this stage. I would start by observing that this result is not, as I see it, needed because of the powers conferred by the MCA (see paragraph 34, above). I would also, respectfully, disagree for two further reasons. First, in my judgment, a Convention -compliant interpretation would not overcome the limitation under the general law that an application could not be made by an agent on behalf of a person without capacity (not using the MCA), I do not consider that HRA s 3 would enable the courts to go further than apply a Convention-compliant interpretation and change the law on that issue. Second, since HRA s3 can be used only "so far as is possible", it is not available to be used if I am right in my conclusion that the Barras principle applies. The question whether an interpretation is "possible" must fall to be determined by this Court at today's date, i.e. in the light of the subsequent confirmation given by Parliament to the interpretation in ex p Ferdous Begum. While the Court is under a duty to apply HRA s 3 if it is possible to do so - that means that the court must critically examine any objections to performing a Convention-compliant interpretation - once it is found that there is an objection, that objection takes precedence over the interpretive duty. Put another way, it is not the function of section 3 to require the courts to apply a Convention-compliant interpretation if other principles of interpretation prevent it from doing so. This possibility is recognised in the citation given by Lewison LJ from the speech of Lord Bingham in Sheldrake v DPP  UKHL 43;  1 AC 264. It is also in accordance with the general scheme of the HRA, namely that it should not diminish Parliamentary sovereignty: see in particular HRA, s 3(2) (b) and (c) (paragraph 16 above) and s. 4. Under s 4, the courts may not set aside primary legislation on the basis that it is not Convention-compliant, but may only make a declaration of incompatibility, on which Parliament can itself act to change the law.
- For completeness I should add that I accept the submission of Mr Westgate that this Court is not precluded from applying HRA section 3 on the grounds that ex parte Ferdous is the decision of the House of Lords and therefore binding on this Court under the doctrine of precedent. I will deal with this point shortly. I consider that this Court is bound to reach its own conclusion on HRA, s 3, especially as ex parte Ferdous Begum is a pre-incorporation decision. That conclusion accords with the instances in this Court and the High Court where those courts when performing their duty under HRA s 3 have not considered themselves bound by the doctrine of precedent: see, for example, Ghaidan (above paragraph 24) and, by way of further example (I expect there are others): in the case of this Court, Cachia v Faluyi  EWCA Civ 998;  1 WLR 1966, and the case of the High Court, Culnane v Morris  EWHC 2438;  1 WLR 2880.
(3) The "Narrow Ratio" argument
- Mr Westgate also points out that Convention jurisprudence would look with disfavour on any blanket exclusion of an application without taking account of their particular circumstances. In any particular case, it may be possible for the applicant to show that she has capacity to make an application and consider an offer of housing, but not capacity to enter into a tenancy agreement carrying legal obligations over a period of time.
- Mr Beglan submits that this point was not taken below and this Court should not permit it to be taken now. I agree. There is no finding of fact to support it. The terms of the Order set out in the appendix to this judgment are to the contrary. This issue needed to be raised below.
- I accept that a person may have capacity to decide where to live but lack capacity to enter a tenancy. Indeed, the Court of Protection has issued guidance for cases where it is desired to enter into a tenancy agreement on behalf of a person who has capacity, for example, to apply for social security payments but not to enter into a tenancy agreement: see Applications for the Court of Protection in relation to tenancy agreements (updated February 2012).
- However, I do not propose to express a view as to how the HA 1996 would apply in those circumstances as they do not arise in this case.
Disposal of this appeal
- For the reasons given above, I would dismiss this appeal.
LORD JUSTICE LEWISON
- I have read the judgment of Lady Justice Arden, and I agree with her ultimate conclusion. However, I have reached my conclusion by a rather different route.
- We have been urged not to follow a decision of the House of Lords in ex parte Ferdous Begum interpreting the very same statutory provision that is in issue in our case on the ground that it no longer represents the law. If correct, that argument has far reaching consequences, because if the decision of the House of Lords is no longer the law then any court, whether this court or a deputy district judge in the county court, would be entitled (if not compelled) to refuse to follow it.
- The principle of precedent plays a crucial role in English law. It ensures that like cases are treated alike; and it promotes legal certainty for citizens to arrange their affairs. The principle of precedent is closely aligned to the hierarchical court system in England and Wales. Decisions of courts higher up the hierarchy bind courts lower down the hierarchy. In certain circumstances a court can refuse to follow a previous decision of its own. The circumstances in which that is possible are set out in Young v Bristol Aeroplane Co Ltd  KB 718. As Lord Hailsham put it in Broome v Cassell & Co Ltd  AC 1027, 1054:
The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v Bristol Aeroplane Co Ltd  KB 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.
- This is not some out of date principle. In Willers v Joyce (No 2)  UKSC 44,  3 WLR 534 Lord Neuberger, delivering the judgment of a panel of nine judges of the Supreme Court, said:
In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability.
- Lord Neuberger also emphasised that the rule of precedent "should be clear in its terms and simple in its application."
- It is clear that the fact that the world has moved on is not by itself a reason which would entitle a junior court to refuse to follow a decision of a superior court. The House of Lords made this clear in Miliangos v George Frank Textiles Ltd  AC 443. In an earlier case the Court of Appeal had refused to follow an earlier decision of the House of Lords about the entry of a judgment in foreign currency, on the ground that commercial conditions had changed, that sterling was no longer a stable currency and that the court would be acting contrary to the spirit of the Treaty of Rome if it insisted that a foreign creditor was restricted to a judgment in sterling. In the Miliangos case it followed that decision. The House of Lords held that it was not entitled to refuse to follow the earlier decision of the House of Lords. Lord Wilberforce said trenchantly:
It has to be reaffirmed that the only judicial means by which decisions of this House can be reviewed is by this House itself, under the declaration of 1966.
- Lord Simon took a rather more nuanced view (with which the other law lords, including Lord Wilberforce) agreed. He discussed in detail the maxim "cessante ratione cessat ipsa lex". He summarised his view at 476:
To sum up on this part of the case: (1) the maxim in the form "cessante ratione cesset ipsa lex" reflects one of the considerations which your Lordships will weigh in deciding whether to overrule, by virtue of the 1966 declaration, a previous decision of your Lordships' House; (2) in relation to courts bound by the rule of precedent the maxim "cessante ratione cessat ipsa lex," in its literal and widest sense, is misleading and erroneous; (3) specifically, courts which are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason which led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency; (4) the maxim in reality reflects the process of legal reasoning whereby a previous authority is judicially distinguished or an exception is made to a principal legal rule; (5) an otherwise binding precedent or rule may, on proper analysis, be held to have been impliedly overruled by a subsequent decision of a higher court or impliedly abrogated by an Act of Parliament, but this doctrine is not accurately reflected by citation of the maxim "cessante ratione cessat ipsa lex..
- In Pittalis v Grant  QB 605 the Court of Appeal was required to decide whether to follow a decision of the House of Lords to the effect that a point of law could not be taken in appeal from the county court if it had not been raised at first instance in that court. The form of the legislation in force at the date of the decision of the House of Lords differed considerably from that in force at the decision in Pittalis v Grant. However, without reference to Miliangos, or indeed any other authority on the principle of precedent, the court stated at 618:
We are conscious that it may seem a strong thing for this court to hold thus of a rule established by the House of Lords, albeit one enfeebled by exceptions, the statutory support which gave it life at last turned off. But where it can see that the decision of the higher court has become obsolete, the lower court, if it is not to deny justice to the parties in the suit, is bound to say so and to act accordingly.
- In the light of Miliangos it is clear, in my judgment, that the last sentence of this quotation is too widely stated, as Mr Westgate QC accepted. The decision itself may well be justifiable on the ground that changes to the statute under consideration had indeed "impliedly abrogated" the previous ruling of the House of Lords. The Court of Appeal could therefore have brought the case within the fifth of Lord Simon's points.
- In the present case we are faced with a decision of the House of Lords on precisely the same point. The statutory language has not changed. Indeed it has been re-enacted by Parliament following the decision of the House of Lords. It is perfectly true that attitudes toward disabled people has changed radically since then, and those changes may be enough to persuade the Supreme Court to depart from the previous decision of the House of Lords as it is entitled to do under the Practice Statement (Judicial Precedent)  1 WLR 1234. However, that is not enough to enable this court to refuse to follow an otherwise binding decision of the House of Lords unless it can be said that subsequent statutes have impliedly changed the rule laid down by the House.
- To return to Lord Simon's fifth point, it is plain that there is no subsequent decision which has overruled ex parte Ferdous Begum either expressly or implicitly. Nor has there been any relevant legislative change to the housing legislation. On the contrary when the relevant provisions of the Housing Act 1985 were re-enacted in the Housing Act 1996 the latter act provided in terms that the two acts were to be "construed as one".
- The alternative argument is based on the interpretative duty imposed by section 3 of the Human Rights Act 1998. That provides:
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted…
- The question whether section 3 of the Human Rights Act frees a junior court from the duty to follow a decision of a senior court on the very same point is, to my mind, a difficult one. At the conclusion of the hearing, and for some time afterwards, I took the view that the ordinary rules of precedent applied. However, Clayton and Tomlinson on the Law of Human Rights (2nd ed) state at para 5.137:
One of the most striking effects of the HRA has been its impact on the law of precedent…. It will always be open to a court to refuse to follow authority on the basis that those decisions are not compatible with Convention rights. Consequently a magistrates' court may decline to follow a relevant decision of the House of Lords on the ground that the House of Lords decision cannot stand as a result of the HRA.
- The authors cite no authority in support of that proposition, and it is difficult to find a case which has squarely confronted that situation. The question of precedent has been considered at the highest level in cases which engage rights under the ECHR. In Kay v Lambeth LBC  UKHL 10,  2 AC 465, Lord Bingham discussed that question at  to  in a passage the whole of which repays careful study. For present purposes it is sufficient to quote a few passages only:
As Lord Hailsham observed [in Broome v Cassell & Co Ltd] "in legal matters, some degree of certainty is at least as valuable a part of justice as perfection". That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent. It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.
- This statement of principle was not on its face confined to subsequent decisions of the European Court of Human Rights. Lord Bingham's statement that domestic rules of precedent should be followed in "the Convention context" initially appeared to me to have been a statement of general principle. It initially seemed to me that if he had meant to except the interpretative duty arising under section 3 of the Human Rights Act 1998 he would surely have said so. The tenor of his observations suggests that a junior court would fulfil its obligations under the 1998 Act by giving permission to appeal. Lord Bingham did go on to consider whether there were any exceptions to that general statement. He did in fact make one exception to this rule, by reference to the decision of the Court of Appeal in D v East Berkshire Community NHS Trust  QB 558 in which this court held that a previous decision of the House of Lords (X (Minors) v Bedfordshire CC) could not survive the passing of the Human Rights Act 1998, and refused to follow it. When the case reached the House of Lords, the decision of this court was upheld. However, Lord Bingham stressed the exceptional nature of that case, which went beyond the mere fact that the Human Rights Act had intervened. As he explained:
But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in para 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course is not permissible save where the facts are of that extreme character.
- On the other hand, Lord Bingham did not refer explicitly to section 3 of the 1998 Act; and the issue in D v East Berkshire Community NHS Trust was the development of the common law of negligence, with the consequence that section 3 was not directly engaged.
- This court gave further consideration to the scope of the single exception identified by Lord Bingham in R (Purdy) v DPP  EWCA Civ 92,  1 Cr App R 32. Lord Judge CJ, giving the judgment of the court, said at :
We have come to the conclusion that their Lordships intended to give the Court of Appeal very limited freedom, only in the most exceptional circumstances, to override what would otherwise be the binding precedent of the decision of the House. They clearly required more than the bare fact of the same parties being involved in order to bring the case within the very narrow confines of the very exceptional case, one of an extreme character, or of wholly exceptional circumstances, with the emphasis added by us to phrases from their Lordships' speeches. We are not seeking to be released from these strictures. The structure of judicial precedent, designed over the years, has served us well. The decisions of the European Court do not bind us. The decisions of the House of Lords do. By-passing or finding an alternative route around the decisions of the House of Lords, on the basis of the jurisprudence of the European Court would, in the ultimate analysis, be productive of considerable uncertainty. Therefore if the strictures are too tight, it is their Lordships who, if they think it appropriate, must release the knot. As it is, and in any event, we cannot bring this case within the required degree of exceptionality.
- This too, like Kay, concerned a subsequent decision of the ECtHR.
- We were referred to two previous decisions of this court which, from the perspective of the rules of precedent, are to my mind rather unsatisfactory. In Ghaidan v Godin-Mendoza  EWCA Civ 1533,  Ch 380 the question was whether the survivor of a same-sex couple could be said to be the "spouse" of the deceased. A recent decision of the House of Lords (decided before the coming into force of the Human Rights Act 1998) had decided that question in the negative. Without any discussion of the rules of precedent (and without any argument on that subject) this court refused to follow the House of Lords. In Sims v Dacorum BC  EWCA Civ 12,  HLR 14 the question was whether one of two joint tenants could serve a valid notice to quit. The House of Lords had decided that question in the affirmative. Their decision was also before the coming into force of the Human Rights Act 1998. It was accepted in this court (again without any discussion of the rules of precedent) that this court was bound by the decision of the House of Lords, with the result that the only question for this court was whether permission to appeal to the Supreme Court should be given. I do not question the substantive result in either case (indeed each of them was upheld by the House of Lords or the Supreme Court). But in neither case was the point argued, although it is fair to say that Sims concerned a common law rule whereas Ghaidan was concerned with statutory interpretation.
- Desnousse v Newham LBC  EWCA Civ 547,  QB 831 was a decision of this court which concerned the question whether the Protection from Eviction Act 1977 applied to a licence granted to persons temporarily housed by a local authority under the homelessness legislation. A previous decision of this court (Mohamed v Manek (1995) 27 HLR 439) had decided that it did not. Lloyd LJ held that, subject to the impact of section 3, this court was bound by its own previous decision. Having considered (among other cases) Kay, at  to  he said:
129 If the Protection from Eviction Act 1977 contained an express provision about accommodation provided under Part VII of the 1996 Act, in section 3A, it would not be open to the court to override that. At most the court could make a declaration of incompatibility. The court would be likely to be strongly influenced … by the express provision as being the explicit choice, likely to be presumed to be legitimate and proportionate, resulting from the democratic process.
130 Here, however, the exception arises not from an express statutory provision but from a previous decision of the Court of Appeal, binding as a precedent apart from the fact that the law as regards statutory construction has changed in the meantime because of section 3 of the Human Rights Act 1998. That makes a different construction of the Protection from Eviction Act possible. (Emphasis added)
- At  he said:
Accordingly I conclude that a reading of section 3 of the Protection from Eviction Act 1977 which does not allow it to extend to the recovery of possession from someone in the position of the claimant is not compatible with her Convention rights under article 8. I would therefore hold that, although Mohamed v Manek is otherwise a binding authority on the point, the effect of section 3 of the Human Rights Act 1998 is that, in order to ensure compatibility with an occupier's right to respect for his or her home under article 8, from 2 October 2000, where a person is in residential occupation of self-contained accommodation under a licence, the application of section 3 of the Protection from Eviction Act 1977 is not excluded by the fact of the accommodation having been made available in pursuance of a local housing authority's duties under section 188(1) or section 190(2)(a) of the Housing Act 1996 . That situation not being excluded from the 1977 Act by section 3A, it follows that a court order was necessary before the claimant could be made to leave.
- Pill and Tuckey LJJ disagreed, not because they took the view that Mohamed v Manek bound them, but because (unlike Lloyd LJ) they took the view that the exclusion was compatible with Convention rights. In R (RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311 at  to  Lord Neuberger referred to Denousse with apparent approval (and certainly did not disapprove of the approach that this court had taken to the impact of section 3).
- I have therefore come to the view that we are not bound, as a matter of precedent to follow Fergous Begum; and are entitled (indeed, bound) to apply the interpretative obligation contained in section 3. That obligation is a strong one. As Lord Bingham explained in Sheldrake v DPP  UKHL 43;  1 AC 264 at :
First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R (Anderson) v Secretary of State for the Home Department  1 AC 837 and Bellinger v Bellinger (Lord Chancellor intervening)  2 AC 467. In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: "So far as it is possible to do so ..." (Emphasis added)
- The question, then, is: is it possible to interpret the Housing Act 1996 as enabling an application to be made by or on behalf of a person without mental capacity? This court certainly thought that is was in the Ferdous Begum case itself (R v Tower Hamlets LBC ex p Ferdous Begum  QB 447). Butler-Sloss LJ gave the leading judgment with which Lord Donaldson MR and Staughton LJ agreed. At 458 she said:
There is nothing in the Act to demonstrate that section 62 is substantive rather than procedural and provides hurdles of mental capacity to surmount before an application can be accepted. On the contrary, section 59(1)(c) contemplates that applications will be made by those under a disability or who are vulnerable. Such legislation is in accord with the expressed policy of government departments to accept within the community those who might in former days have been shut away in long stay institutions. I cannot construe from the statute any indication that a line has to be drawn among those targeted by section 59(1)(c) according to degrees of mental capacity less than the normal capacity to make an application. The purpose of the framework of the overall legislation is to include those with mental illness or handicap without reference to a definable cut-off point of mental capacity.
- She went on to consider the case of a person with "less than the normal capacity to make an application". As to that category of person she said:
In my view an application may be made under section 59(1)(c) by a person with capacity to make it, or by another with the consent of the applicant, or by someone on behalf of a person who is entitled to make an application but is unable through mental incapacity to make or consent to the making of an application. In the latter case the writer or maker of the application on behalf of another must demonstrate reasonable grounds for making the application and for acting on behalf of the actual applicant and that he is acting bona fide in the interests of the person unable to act without such help. An application by a well-meaning busybody would not be an acceptable application under section 62.
- When the case reached the House of Lords Lord Slynn agreed with this court. Although it may be simplistic, the tally of judges in the higher courts is 4:4 for the opposing constructions. In those circumstances I find it impossible to say that the construction for which WB contends is not a possible one.
- However, since WB does not have capacity to make the application the question then arises: does she fall within Butler-Sloss LJ's description of how an application by or on behalf of such a person may be made? Lady Justice Arden has adverted to the possibility of the appointment of a deputy or the execution of a lasting power of attorney. A deputy may make decisions on behalf of the person without capacity to the extent that his or her appointment allows. As Lady Justice Arden points out those powers may include a power to decide where a person is to live (section 17 (1) (a)) and a power to acquire property on his or her behalf (section 18 (1)). If authorised to do so by his or her appointment a deputy could make the application, decide whether to accept offered accommodation, and enter into a tenancy on behalf of the person without capacity. However, the mere fact that the Court of Protection authorised a council official to sign a tenancy agreement is not, in my judgment, enough. That is no more than an administrative act; and does not amount to decision making. There is, therefore, no one in this case who has the power to make such decisions on WB's behalf.
- A lasting power of attorney is granted under section 9 of the Mental Capacity Act 2005. However, section 9 (2) provides:
(2) A lasting power of attorney is not created unless—
(b) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and
(c) at the time when P executes the instrument, P has reached 18 and has capacity to execute it.
- There is no such power in this case; and we do not know whether WB would have had the capacity to execute one.
- Neither of these possible routes is available on the facts of our case. I would therefore hold, in agreement with Lady Justices Arden and Asplin, that the appeal must be dismissed.
LADY JUSTICE ASPLIN:
- I agree with Lady Justice Arden and Lord Justice Lewison that the appeal must be dismissed. I have reached my conclusion by the same route as Lady Justice Arden.
- I have had the benefit of considering both the judgment of Lady Justice Arden and that of Lord Justice Lewison on the difficult question of how the doctrine of precedent inter-relates with section 3 of the Human Rights Act 1998. It seems to me that despite the importance of the doctrine of precedent, we are required to exercise the interpretative powers conferred by section 3 so far as it is possible. However, as Lady Justice Arden observes, in this case it is not necessary to consider whether a Convention-compliant construction of Part VII of the HA 96, permitting applications to be made on behalf of persons with mental disability, is "possible" because of the powers conferred by the MCA. In any event, I agree with Lady Justice Arden that a Convention-compliant interpretation of the HA 96 is not possible because it would not overcome the limitation that an application could not be made by an agent on behalf of a person without capacity (without resort to the MCA.) I agree that section 3 does not enable the court not only to apply a Convention-compliant interpretation of the HA 96 but also to effect what would be the necessary change to the general law on that issue. I also agree that as the tool of interpretation under section 3 can be used only "so far as is possible", it is not available to be used in this case as a result of the application of the Barras principle.
Appendix to judgment of Arden LJ
Order of Court of Protection dated December 2015
AND UPON S Council confirming that it will continue to use all its best endeavours to seek to persuade and support WB to move into such accommodation and accept such support as set out in the declarations at paragraphs 1-2 below, including going to visit such accommodation with her and working together with her advocate
AND UPON the court having previously made final declarations pursuant to section 15 of the [MCA] on 21 September 2015 that Ms WB lacks capacity to conduct these proceedings and to make decisions about where she should live, her care needs, and to enter into a tenancy agreement
IT IS ORDERED AND DECLARED pursuant to section 16 of the [MCA] that:-
1. It is the best interests of WB in the short to medium term that she reside in currently available supported accommodation managed by A Trust ("XX Road").
2. It is in the best interests of WB that she reside in accommodation managed by SS Ltd when such accommodation becomes available, or such suitable alternative supported living accommodation as my become available in the future.
3. In the event that, for whatever reason, WB does not reside in accommodation at XX Road or provided by SS Ltd or an alternative supported living provider pursuant to paragraphs 1 to 2 above, it is in the best interest of WB that she reside in general needs housing (if available and offered to her), provided by W Council, with support from S Council in accordance with a care plan.
4. An officer of S Council is permitted to enter into a tenancy agreement on behalf of WB to give effect to any of the declarations at paragraph 1 to 3 above.
5. Nothing in paragraphs 1-3 of this order compels WB to accept an offer of accommodation from those providers, or authorises an officer of S Council to enter into a tenancy agreement on WB's behalf unless this is in accordance with her wishes and feelings.
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