Summary: Mr B says the Council failed to properly consider whether he had capacity to make a homeless application and failed to consider the opinion of other professionals who said he had capacity. There is evidence of fault in how the Council reached its decision on whether Mr B had capacity to make a homeless application. A further assessment of Mr B’s capacity, apology, payment to Mr B and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to properly consider whether he had capacity to make a homeless application; and
• failed to consider the opinion of other professionals who said he had capacity.
2. Mr B says failures by the Council has led to him being homeless and having to fund his own accommodation.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. The Homelessness Code of Guidance (the code) says a homeless application can be made by any individual who has the mental capacity to do so.
8. R v Tower Hamlets LBC ex p Ferdous Begum (1993) held that a person had to have capacity to “comprehend or evaluate” an offer of accommodation. That case noted it was implicit in the provisions of the Housing 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.
9. The Mental Capacity Act 2005 (MCA) says a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
10. The MCA says a person is unable to make a decision for himself if he is unable:
• (a)to understand the information relevant to the decision,
• (b)to retain that information,
• (c)to use or weigh that information as part of the process of making the decision, or
• (d)to communicate his decision.
11. The Mental Capacity Act code of practice (code of practice) makes clear it should be assumed an adult has full legal capacity to make decisions for themselves unless it can be shown they lack capacity to make a decision for themselves at the time the decision needs to be made. This is known as the presumption of capacity. It also says people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process.
12. The code of practice says a person’s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made.
13. The code of practice says more complex decisions are likely to need more formal assessments. A professional opinion on the person’s capacity might be necessary. But the final decision about a person’s capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity – not the professional, who is there to advise.
14. Paragraph 4.49 of the code of practice sets out a series of questions the decision-maker may need to ask to help reach a decision. That includes explaining the information relevant to the decision to the person, checking their understanding after a few minutes and avoiding yes or no questions.
15. The code of practice says anyone assessing someone’s capacity may need to get a professional opinion when assessing a person’s capacity to make complex or major decisions. It says professionals should never express an opinion without carrying out a proper examination and assessment of the person’s capacity to make the decision. They must apply the appropriate test of capacity.

What happened

16. Mr B has a mental disorder characterised by beliefs about a conspiracy to interfere with his life which resulted in him making adaptions to his property to protect himself. Mr B was evicted from his property due to those actions and approached the Council as homeless.
17. The Council asked Mr B’s consultant psychiatrist for an opinion on whether Mr B had an impairment or disturbance in the functioning of his mind or brain and, if so, how long that had affected him over the previous 24 months and how that would affect him adhering to the terms of his tenancy over the previous 24 months. The Council explained it needed that information to make a decision on whether Mr B had mental capacity to make a homeless application and maintain a tenancy in future. The consultant psychiatrist provided a letter detailing Mr B’s medical history but said he could not provide an opinion on capacity as he was not experienced in tenancy obligations. The consultant psychiatrist suggested the Council contact Mr B’s mental health social worker.
18. The Council contacted the mental health social worker who said Mr B had capacity about paying rent/bills but the reason for his eviction was directly related to his mental health as he did not have insight into his experience of voices as he believed they were real and had adapted his property to reduce the voices. The mental health social worker told the Council this meant his capacity was questionable. The mental health social worker said due to Mr B’s diagnosis of schizophrenia and delusional disorder this, plus his lack of insight, increased his vulnerability.
19. The mental health social worker followed that up with a telephone call where she reiterated Mr B’s lack of capacity around his mental health in relation to the voices in his head. The mental health social worker said Mr B had no understanding of what his responsibilities were towards a tenancy when he moved into his previous property but in the six months before he was evicted he had a better understanding and had complied with some of the requests made to him by his landlord. The social worker said Mr B could not understand as part of his mental illness that he could not do the work he did in his property and the reason he did it was because of his mental illness. She said he understood he could not do it but said he did not have the capacity to understand the reasons he was doing it.
20. On 4 August the Council wrote to Mr B to explain its decision was he lacked the capacity to be dealt with under the homeless legislation and be owed any duties under that legislation. The Council said it had relied on interviews completed with Mr B in person or by phone since February 2022, representations from the consultant psychiatrist and social worker, the Mental Capacity Act, Homelessness code of guidance and case law.

Analysis

21. Mr B says the Council failed to properly consider whether he had capacity to make a homeless application and, in reaching that decision, failed to consider the opinion of other professionals who said he had capacity.
22. I have considered the documentation on this case which includes a copy of the advice received by the Council from a consultant psychiatrist and mental health social worker as well as the decision letter to Mr B telling him the Council was satisfied he did not have capacity to make a homeless application. I have some concerns about how the Council reached that decision.
23. My first concern is that in responding to my enquiry on this complaint the Council says its officers are not trained to carry out their own mental health capacity assessments and therefore look to other professionals such as mental health and social workers who have this specific knowledge. While there is no fault in seeking the advice of a professional in completing a capacity assessment the Council is responsible for making the decision and I would therefore expect its officers to have had the relevant training and to understand their responsibilities under the Mental Capacity Act.
24. I am satisfied the Council had taken advice from a consultant psychiatrist and mental health social worker for this case. The information I have seen from the consultant psychiatrist shows he did not feel qualified to offer an opinion on whether Mr B had capacity to make a homeless application and manage a tenancy. He referred to improvements Mr B had made in engaging with services and addressing practical issues though. I am also satisfied the Council took advice from the mental health social worker. In its decision letter the Council appears to have relied largely on the information provided by that social worker about Mr B being evicted from his previous property due to his mental health issues and the social worker’s comment that although Mr B had capacity with regard to paying rent and bills his capacity was questionable as he did not have insight into his experience of voices and had adapted his property to reduce the voices.
25. That advice does not provide a clear statement that Mr B lacks capacity. Nor does it appear to have been advice offered following a capacity assessment. I also note that advice was followed up by the social worker in a telephone call later the same day. In that call the social worker again referred to Mr B not having capacity around his mental illness in relation to the voices in his head. That though did not provide a view on whether he had capacity to manage a tenancy. The additional information the social worker provided was that in her opinion Mr B had no understanding of what his responsibilities were towards a tenancy when he moved into the property but that in the six months before he was evicted he had a better understanding and could comply with some of the requests made to him by the landlord.
26. I have seen nothing in the Council’s assessment of Mr B’s capacity to suggest it properly considered the representations the mental health social worker made around the improvements Mr B had made as none of that is referred to in the decision letter. Nor am I satisfied the Council properly considered whether there was sufficient information from the mental health social worker to support the conclusion Mr B did not have capacity to make a homeless application given the advice received was qualified and not definitive. I am therefore not satisfied in reaching the decision Mr B did not have capacity to make a homeless application the Council properly considered the information it had gathered.
27. I am also concerned there is no evidence the Council officer making the decision on capacity interviewed Mr B to assess for herself whether he had capacity to make a homeless application and manage a tenancy. I suspect that is because the Council says its officers are not experienced in carrying out capacity assessments and are not trained. That concerns me though given the Council is responsible for making the decision. I would therefore expect the Council to ensure its officers are trained and that contact is made with the applicant to establish whether they have capacity to make a homeless application. Failure to do that is fault.
28. The Council’s decision letter to Mr B in August 2022 referred to it having taken into account interviews with him since February 2022. However, the Council has provided no evidence of any such interviews. I refer to the guidance in the code pf practice in paragraphs 10-15. This suggests an assessment of Mr B’s capacity should have been undertaken and this assessment should have involved contact with him to assess his capacity. I consider relying on a professional opinion alone, which is what happened in this case, is fault. That is particularly concerning here because the professional opinion offered was not definitive on the question of capacity and the decision letter does not reference some of the points the social worker made around improvements in Mr B’s cooperation.
29. Mr B also says the Council failed to consider the evidence it had from professionals to show he had capacity. Notwithstanding the fact the mental capacity assessment is only relevant for the decision being made at the point at which the capacity assessment is undertaken I have seen no evidence to suggest Mr B provided the Council with a copy of any documentation detailing a positive capacity assessment. I cannot criticise the Council for failing to take into account information it did not have. For the reasons I have already given though I am not satisfied the capacity assessment was completed properly.
30. I am therefore not satisfied the Council carried out the capacity assessment properly. I could not, however, speculate about what the outcome of the assessment would have been had the Council carried it out properly. The Council may still have reached the same decision. I therefore consider Mr B’s injustice is his uncertainty about whether the outcome would have been different had the assessment been completed properly, as well as the time and trouble he had to go to pursuing his complaint.
31. As remedy I recommended the Council carry out another mental capacity assessment of Mr B to establish whether he has capacity to make a homeless application. In making that assessment the Council should ensure it follows the steps set out in the Mental Capacity Act. I also recommended the Council apologise to Mr B and pay him £300 to reflect his time and trouble and uncertainty. Alongside that I recommended the Council provide training to officers carrying out mental capacity assessments to ensure they are aware of the steps required under the Mental Capacity Act. The Council has agreed to my recommendations.

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Agreed action

32. Within one month of my decision the Council should:
• carry out a further mental capacity assessment to establish whether Mr B has capacity to make a homeless application;
• apologise to Mr B; and
• pay Mr B £300.
33. Within two months of my decision the Council should provide training for officers who carry out capacity assessments to ensure they are aware of the requirements of the Mental Capacity Act.

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Final decision

34. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman