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Neutral Citation Number: [2018] EWCA Civ 928 |
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Case No: B5/2017/0243 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Norwich Combined Court Centre
His Honour Judge Moloney QC
A00NR652
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Royal Courts of Justice Strand, London, WC2A 2LL |
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26/04/2018 |
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LEWISON
and
LADY JUSTICE ASPLIN
____________________
Between:
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WB (a protected party through her litigation friend the Official Solicitor)
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Appellant
|
|
- and -
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|
W District Council
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Respondent
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- and-
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Equality & Human Rights Commission
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Intervener
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____________________
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 [1993] 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 [2015] 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) [1966] 1
WLR
1234)
- Thus, in Miliangos
v
George Frank (Textiles) Ltd [1975] 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 [1976] 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 [2004] 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 [2001] 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 [2002] EWCA Civ 1533 [2003] 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 [121]) 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 [1933] 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 [1950] 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 [1910] 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 [1913] 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 [2014] UKSC 62; [2015] 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 [2006] EWCA Civ 547, [2007] 2 All ER 218, [2006] 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 [1933] AC 402, [1933] 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 [2004] UKHL 43; [2005] 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 [2001] EWCA Civ 998; [2002] 1
WLR
1966, and the case of the High Court, Culnane
v
Morris [2005] EWHC 2438; [2006] 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 [1944] KB 718. As Lord Hailsham put it in Broome
v
Cassell & Co Ltd [1972] 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 [1944] 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) [2016] UKSC 44, [2016] 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 [1976] 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 [1989] 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) [1966] 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 [2006] UKHL 10, [2006] 2 AC 465, Lord Bingham discussed that question at [40] to [45] 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 [2004] 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 [2009] EWCA Civ 92, [2009] 1 Cr App R 32. Lord Judge CJ, giving the judgment of the court, said at [54]:
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 [2002] EWCA Civ 1533, [2003] 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 [2013] EWCA Civ 12, [2013] 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 [2006] EWCA Civ 547, [2006] 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 [129] to [130] 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 [143] 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 [2008] UKHL 63, [2009] 1 AC 311 at [64] to [67] 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 [2004] UKHL 43; [2005] 1 AC 264 at [28]:
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 [2003] 1 AC 837 and Bellinger
v
Bellinger (Lord Chancellor intervening) [2003] 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 [1993] 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—
(a) …,
(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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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/928.html