Hi, any help with this would be appreciated.
A tenant was sectioned under section 3 (i.e voluntarily) and entered secure unit but was allowed some freedom during the daytime. He took it upon himself to visit the benefit department and cancelled his claim saying he was no longer living at his flat. However he has not given notice to end his tenancy, and it is likely that he took this action as a result of his condition. Could it be argued that he did not have the mental capacity to make the decision to end his claim? I've checked the circular A12/2007 but this only refers to deputies appointed by court order, not voluntary sectioning.

He remains in hospital now some two months later and all tenancy matters are through his CPN, who is of the opinion that he will return to the flat with support once he is better. Could the CPN argue that the decision should be reversed due to his non-capacity to manage his affairs?

thanks for any help anyone can offer.

you'll probably need a report from a suitably medically qualified person as to his capacity; apart from that i don't know, but would have thought that if a new claim were put ni sooner rather than later with backdate to as far back as possible, that might assist in solving the problem?

I would broadly agree with you and the previous resposne. The CPN could ask for the decision to terminate the claim to be revised, thus resurrecting the original claim. This would be based on an argument that the tenant did not really abandon the property or give up his tenancy, he was actually temprarily absent with intention to return but because of his condition he misrepresented this.

However, this is a bit messy and a "cleaner" approach, and one more likely to find favour with the LA I suspect, would be to put in a new claim and request backdating to the end of the previous one. The good cause would be his mental health condition hampering his ability to understand his situation and rights, and that he should still be claiming.

Thank you both for your help. Hopefully the CPN can assist with a new claim and backdate request, signing as an appointee as our tenant is still not well.

Mon 09-Jun-08 04:34 PM by shawn

(Edited to shorten link)

I don't know how far you have been able to get the CPN to progress this, but I would suspect (and politely suggest), that you approach the 'nearest relative' not the CPN (assuming that there is such a person, as there sometimes is no such person known or identified, or who is willing to take on that responsibility). If there is no one identified or willing to take on this role, then it is possible and probable that the Court of Protection should be involved.

In as much as it makes sense for the purposes of this post, the nearest relative is the person in whom the rights of the person detained rest, not the CPN. I have posted a link below as to whom this person might be and some other basic but useful info.

The CPN actually has no right to act for a person detained (whether on S2, 3 or any other of the MHA), and can only act as an advocate.

I say this because it is not just in the area of HB that this person might need assistance, and in relation to the MHA, all a person's rights should be safeguarded by a person actually legally allowed to act, and so that there is appropriate legal redress for the person detained, should they disagree with what is being decided.

As for having the HB claim reinstated, the fact that the person has been detained (again S2 or5 3, it doesn't matter) is grounds to revise the withdrawal decision, and this only need be pointed out to any reasonable HB appeals officer, (though I would suggest with appropriate documentary proof), and the decision can be amended.

Link to Directgov

note of caution here...

1.. you can only be sectioned under the Mental Health ACt, NOT the mental capacity act.

2. the fact that you have been sectioned does not mean you lack capacity for any particular purpose. capacity is assessed depending upon the purpose for which it is being considered. So somene might have capacity to do their basic shopping/day to day living, yet not have capacity to decide on the need or otherwise for an operation, for example.

3. CoP will only get involved where the person definitely does not have capacity.