CIH

1. CIH Alison Meacher Hoarding : Capacity, Enforcement and Remedies 12 September 2014

2. Overview:

3. Remedies: a comparison

4. Part 1: Traditional Remedies and Enforcement Advice and Support – referral to social services? R (Ireneschild) V Lambeth LBC [2006] EWHC 2354 Sustainable tenancy management (dedicated trained officer, safeguarding, multi disciplinary meetings, police) Mental Health Act 1983 assessment (s.2, s.135, s.136) Alternative accommodation Injunction Possession proceedings

5. Steps landlord can take

6. 1. Advice and Support Court will expect you to assist T and prevent need for enforcement: • Secure diagnosis and signpost to treatment (if appropriate); • Does T need help in the home – s.47 assessment by social services • Physical help to clear premises or put items in storage? • Coping strategies and befriending to manage underlying issues (CMHT, MIND, Age UK)? Is hoarding a response to grief, loneliness, etc? • Help T understand and manage terms of tenancy agreement; • Support with managing tenancy to modify behaviour – statutory and non-statutory agencies;

7. 2: Sustainable Tenancy Management Some LA’s and RP’s are creating multi-agency committees for the purpose of promoting sustainable tenancy management; Multi-agency working together specifically to deal with T or occupier where hoarding s problem; Train sustainable tenancy officers with specific experience of identifying and dealing with hoarders – for example, London Borough of Merton Multi-Agency Hoarding Protocol

8. Enhanced Tenancy Engagement Sustainable tenancy officer is dedicated to developing a relationship with a tenant who is hoarding; Develop links with other agencies such as the Fire Brigade to help remove immediate risks to tenant or neighbours – i.e. install mains operated sprinklers or fire alarms; Involve T to develop long-term compliance with tenancy rather than ask court to enforce terms of tenancy to facilitate one off clearance; Work with other family members or members of the household.

9. 3. Mental Health Assessment Difference between MHA assessment and MCA assessment. s.2 – detention for 28 days for assessment; s.3 – detention for treatment s.4 - detention for 72 hours in cases of “urgent necessity” s.135 – police has power to search property and remove patient to place of safety for 72 hours s.136 – Police has power to remove a patient from a public place to place of safety by police. NB: s.47 of NAA 1948 is no longer in force

10. Jargon Alert Approved Social Worker, AMHP Responsible clinicians (nurse, psychologist, OT or social worker with appropriate training), IMHA/IMCA, Care co-ordinator; Nearest relative; Best interest Assessment.

11. 4. Alternative accommodation: Re-Allocation - suitability of current accommodation; Homelessness legislation; S.21 National Assistance Act 1948 (in need of care and assistance) • Supported living • Warden controlled • Residential care setting

12. Common problems: RP must refer to LA for re-allocation and bound by LA policy/priorities. Any power to make management decisions? RP does not have any (suitable)(supported) accommodation to offer as an alternative. HPU will not assist until T is homeless (i.e. possession order secured and enforced). LA may be in breach of Equality Act 2010: Barnsley MBC v Norton [2011] EWCA 834 Social services or CMHT unwilling to engage ? (especially if T previously refuses assistance) T refuses assessment or does not meet criteria for available accommodation.

13. Social Services involvement: Statutory duty to collaborate and to co-operate in community care planning and assessment process: s.47(3) NAA 1948/s.213(1) Housing Act 1996 DOH Guidance 1992, paragraph 19: “ ... Require all relevant agencies, including housing, health and social services authorities, to put an emphasis on discussion, understanding and agreement in the planning of services rather than unilateral decision making.” Homelessness Act 2002, s.1(3) – gives 1992 advice statutory effect.

14. 5. Environment Health Powers Public Health Act 1936 – s.79, power to remove noxious matter, s.83 – cleansing of flithy or verminous premises • Can be served on owner and T; • Local authority can act upon notice in default; Prevention of Damage by Pests Act 1949 – s 4 gives local authority the power to remove or treat rats and mice; Environmental Protection Act 1980 – s.80 local authority can serve an abatement notice requiring T or landlord to remove a statutory nuisance (see s.79).

15. 6. Injunction: If the hoarding is causing a nuisance to others or for other breach of tenancy, i.e. refusing repairs, inspections, etc; Applies to T and other occupiers; Question to ask: Will an injunction resolve the breach? • Jurisdiction: T must have capacity to understand terms of the injunction – Wookey v Wookey (decision and issue specific aspect of test of capacity particularly relevant); • Can T/occupier control the behaviour complained of and comply with the terms of the injunction? S.155/156 HA 96 – if breach of injunction Court can remand for 8 days/remand for 3 weeks for mental health assessment.

16. 7. Possession Proceedings Have you offered all possible/available support or signposted to other agencies? Is T vulnerable? Consider impact of vulnerability on: • Reasonableness (if discretionary ground) • Proportionality (risk of HRA defence) Is T disabled and entitled to the protection of the Equality Act 2010?

17. Summary (before issuing):

18. Practical considerations prior to litigation Ensure decision making is clear and identifiable - best practice to carry out an impact assessment akin to Equality Act 2010 issues. Require client to consider: • whether T is vulnerable and impact of any physical illness or disability on T’s behaviour? • whether litigation is necessary, reasonable and proportionate? • The desired outcome of the litigation? • How best to achieve the desired outcome? Has the client contacted relevant agencies? Have relevant notices been served on support worker/carers?

19. Practical considerations during proceeding If public law/Equality Act 2010 defence or issue arises during proceedings: • Consider if need additional evidence – other support agencies, independent expert report? • Review all previous decisions to ensure claim remains proportionate; • Consider alternative method of resolution or litigation? • Does the T have capacity to litigate?

20. Record keeping and involvement of others Public law or equality act defence more likely to be successful if fail to demonstrate that considered whether vulnerable/disabled, etc. More important than ever that record steps taken (prior to litigation and during litigation); Best evidence of hoarding, home visits and pictures are essential; Ensure communicate in format T can understand - does T need face to face contact, will T open letters? Communicate via carers, support worker, care co-ordinator, treating consultant or GP?

21. Part 2: Legal remedies and lack of capacity? Does T have capacity (to litigate, decide where to live, contract)? Relevant issues: • Assessment of capacity • Evidence • Suitable litigation friend • What remedy is most suitable? Is CPR Part 21 applicable? If so, • make Court aware at the outset; • Identify suitable litigation friend.

22. If capacity in Issue:

23. The Legal Test for capacity S.2 Mental Capacity Act 2005 (“MCA”): “Unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the function of, the mind or brain”

24. Unable to make a decision S.3 MCA A person is unable to make a decision for himself if he is unable to – • Unable to understand the information relevant to the decision • To retain the information • To use or weigh that information as part of the decision making process • To communicate his/her decision (by any means).

25. Limits of s.5 and s.6 MCA S.5 : Permits a person to act in P’s best interests where believe P lacks capacity to make that decision without civil or criminal liability; It does not: • Allow you to move P without the authority of the court - likely to amount to a deprivation of liberty; • Allow you to gain access to private property for repairs or to carry out an inspection.

26. How the court will determine issue of capacity? Question of fact determined on the balance of probabilities Decision and issue specific (how complex is the case?) Masterman-Lister v Bruton [2003] 1 WLR 1511 Presumption of capacity - party alleging incapacity has the burden of rebutting that presumption; Best evidence rule: both medical and lay evidence admissible; If access refused or unable to assess Court can determine capacity, but will exercise caution if only lay evidence available: Baker Tilly v Makar [2013] EWHC 759 (QB) Can any steps be taken to enable capacity? Is legal representation sufficient? V v R [2011] EWHC 822 (QB)

27. How to identify? Will rely on expertise and training provided to housing officers. Consider • Type of items being stored? unusual items no purpose or have no value (e.g. faeces, rubbish, items from charity shop) • Level of distress caused by suggestion that clear items (regardless of lack of value/use)? • Amount of personal belongings severely compromises use of living areas (if area cleared by third party T will re-fill)? • Refusing access to housing officer or care providers (avoidance)? • No steps taken to resolve even when offered assistance or threatened with court proceedings (avoidance)? • Not caused by another mental or physical health issue (recent traumatic life event) ?

28. Evidence Best Evidence Available ?

29. Part 3: Court of Protection

30. What can the Court of Protection do?

31. Preconditions of Jurisdiction Lack capacity to make the ‘relevant decision’ (s.2) i.e. the decision you are asking the court to make using powers in s.16-18 MCA. P must be unable to either - understand, retain, use or weigh information or communicate a decision, including the ability to foresee the consequences of deciding one way or another or failing to make a decision (s.3 MCA); Inability arises due to an impairment or disturbance of the functioning of the mind; Must be over 16 (and for many property decisions P must be over 18).

32. The Best Interests Test: s.4 MCA What is in P’s best interest? • not the interests of his neighbours or his landlord, or any other third party • How will P react if required to dispose of belongings or move? Relevant factors: • What would P have decided had he had capacity; • P’s wishes and feelings; • Beliefs and values of P; • Any other relevant factors.

33. Potential Remedies

34. More Radical Remedies

35. Summary Advantages of COP : • Can be quicker than County Court proceedings if well prepared; • A wider range of remedies available; • Provide a remedy where possession or injunction not appropriate; • Useful to resolve complex cases where possession or injunction proceedings unlikely to succeed; • Can join other interested parties such as social services; • A forum in which the parties can discuss all possible solutions.

36. Differences Need to prepare evidence in advance of application (like a CPR Part 8 claim i.e. an injunction); Decide who else needs to be a party; Be prepared to provide disclosure to other parties immediately; Frequent interim hearings within a short period of time if matters cannot be resolved immediately – Time and resource intensive; Be willing to openly discuss issues in dispute and possible solutions throughout the process; Will usually be heard by the same judge throughout.

37. Practical Considerations • Consult with social services, CMHT and NHS mental health team before making the application – what support given, what is in P’s bests interests, what does each agency believe is best remedy for P. • Has a Best Interest Assessment been completed? • Be certain of what trying to achieve. • Has an Action Plan been prepared? • If application includes inspection, repairs, improvements, clearing, cleansing identify consider carefully what steps you want the Court to authorise.

38. Contents of Action Plan: As a minimum: • Identify alternative accommodation if required (either temporary or permanent); • Identify emotional support network and/or professional contractors for cleansing/clearing; • Identify repairs needed, duration of work, if need temporary accommodation; • Contingency planning – what is T’s usual response if distressed? • What statutory agencies will be on stand by to ensure T is safe?

39. Limitations

40. Disadvantages

41. Disadvantages (2)

42. The cost of getting it wrong Costs in the CoP: • The normal rule in health and welfare -each part bears there own costs; • If claim for possession normal CPR Part 44 applies; Discontinuance or dismissal in the County Court: CPR 36.8 vs CPR 44.2. • May be liable for costs in CoPif your client does not settle case in face of overwhelming evidence against it;

43. High Court Inherent Jurisdiction Re SA per Munby LJ at [79] : “... A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.”

44. DL v A Local Authority [2012] EWCA 253 per Macfarlane at [26] approving Theis J at [53(4)]: “Each case will, of course, have to be carefully considered on its own facts but if there is evidence to suggest than an adult who does not suffer from any kind of mental incapacity that comes within the MCA but who is, or reasonable believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factor may be entitled to the protection of the inherent jurisdiction (see SA (supra) para [79]). This may, or may not include a vulnerable adult.”

45. Macfarlane at 54: “The jurisdiction ..., is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA): (a) Under constraint; or (b) Subject to coercion or undue influence; or (c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disable from giving or expressing a real or genuine consent.”

46. Overview of Inherent Jurisdiction: Hoarding disorder and/or OCD may amount to a disabling circumstance: Re SA [78(iii)]; May be an effective way to secure an assessment of T’s capacity – by asking the Court to make a Harbin v Masterman Order; Court may be wiling to authorise moving T to alternative accommodation on a temporary basis to enable P to make decision without influence of belongings or squalid life style, etc;

47. Limits of Inherent Jurisdiction: If acute case, T may not be able to make a decision free of the undue influence of his disorder even if taken away from the squalid living conditions. No case law to suggest High Court will be willing to authorise permanent re-housing of T. Can be expensive.

48. Case Scenario 1: T is single male tenant, who succeeds to secure tenancy of property lived in most of his life. Non-unitary local authority landlord. K suffers from bipolar disorder, OCD and other anxieties. Unwilling to allow access to landlord to inspect or to carry out repairs; excessive belongings, including those of deceased parents. No assistance provided by social services. When asked to remove items threatens suicide but no history. LA make application for injunction – doesn’t remedy problem. LA issue claim for possession on ground 1 and 16. K offered alternative accommodation. Financial deputy appointed – arrears cleared. Defence filed, arguing discrimination under Equality Act 2010.

49. Case Scenario 2: D is elderly gentleman, secure tenant of LA accommodation. Entitled to pension credit and housing benefit. No arrears. D prone to self-neglect and admitted to hospital on a number of occasions as a result. When HO visits, property squalid, unclear whether D uses gas or electric to heat the property, or that D washes on a regular basis or whether D has bought any food recently. Becoming forgetful, and prone to wandering. Returned to property on a number of occasions by police or neighbours (who then inform landlord). No previous diagnoses of mental health issues. No known family members. Receives informal help from neighbour.

50. Case scenario 3: Assured tenant, elderly, previously homeless, excessive personal belongings in property including petrol powered machinery and other power tools. Landlord is RP, unable to inspect whole of property for some time; Fire safety visit identifies need to upgrade electrics which requires access to various areas of the property. T unwilling to clear sufficient belongings to allow for necessary works. Landlord issues possession proceedings with injunction, defence of discrimination under Equality Act 2010, independent expert makes finding of Hoarding Disorder.