The Court of Protection has issued some new guidance (here) on when it is advisable to make an application to the court in relation to a tenancy for a person who lacks the mental capacity to enter into a tenancy agreement. This replaces earlier guidance issued last year.
As readers may be aware, last year a tribunal ruled that housing benefit was not payable to cover rent incurred through a tenancy agreement that was entered into on behalf of a person who lacked capacity without the requisite authority of an LPA, deputyship or order of the Court of Protection. The ruling in Wychavon District Council v EM [2011] caused significant consternation among housing providers, and groups involved in the care of adults with learning disabilities, as potentially it cast doubt on the viability of many supported living arrangements. At the time of the original ruling, Neary Legal wrote an excellent post explaining why he felt the Wychavon ruling was flawed, and earlier this year the judge returned to the ruling and reversed it (see Nearly Legal's summary of this second decision here). This turnaround must come as a huge relief to local authorities, carers, housing providers and those supported living residents whose very homes were potentially at risk as a result of the ruling. I should expect it's something of a relief to the Court of Protection as well, who could have been flooded with emergency applications for orders for tenancy agreements!
