Can someone who lacks capacity enter into a privately rented property tenancy? The simple answer to this is that there is no reason why not. The reality however, is that it is far from straightforward. We act as Deputy for people who lack capacity. In this article they are referred to as P. The Deputy has been appointed by the Court of Protection to manage their financial affairs. Mental capacity and tenancy One of the most frequent questions is ‘who will be the tenant’. If P is a child, then for obvious reasons they cannot be the tenant as they are a minor. This then means that you look to the parents for the tenancy to be in their names. This will mean that they will be the ones who are credit checked for the tenancy, even though it is likely that it is P’s funds who will pay for the rental property. A need for a rental property often stems from the home within which P lives with their family, not being big enough to properly meet their needs. They may not yet have a settled personal injury claim, providing funds for a suitable property to be purchased, which leaves the Deputy with the option of a privately rented property, to better meet P’s needs until such time as a suitable property can be purchased and adapted. Common issues A credit check on parents can cause issues if they fail. Where this has happened, we have found that a letter from the Deputy confirming that the funds for the rent are from a personal injury award assists. Also, on occasions, the Deputy has acted as Guarantor on the tenancy agreement, which provides reassurance that the rent will be paid. Other issues can arise if P is an adult, and especially if they have always lacked capacity, such as when they are injured during their birth. If they do not have family living with them who can be the tenant, then issues can arise as P will need to be the tenant. They will have no credit history, so will automatically fail credit checks. Again, this is where a letter from the Deputy to confirm the funds are from a personal injury award can assist. Home adaptations in rental properties There is also the issue of whether a rental property is suitable without any type of adaptation being required. If P is a wheelchair user, there is a good chance that none of the doors into or within the property will be wide enough, so new wider doors will need to be fitted. Another example is the fitting of a ceiling track hoist, should P require this for their needs to be properly met. It is possible to make changes to rental properties, with Landlords often agreeing to this work. The most frequent basis for this agreement is that the Deputy has confirmed that the property will be returned to its original condition at the end of the tenancy, should the Landlord require this to be done. How much rectification work a Landlord actually requires at the end of a tenancy can vary, with some not requiring any work to be done, whilst others require all adaptations to be removed (although this is quite rare in our experience). Renting with a disability case example In a recent example, we are Deputy for a child called Chloe. As a result of Chloe having complex needs and being a wheelchair user, her family home was not big enough to be able to meet her needs. There was an ongoing personal injury claim, where settlement had not yet been reached. This meant there were not sufficient funds to purchase and adapt a property, but as a result of the litigators obtaining an interim payment, there were sufficient funds to be able to rent a property for her and her family. Some adaptations were required to the rental property. This included widening of doorways. At the end of the tenancy, the Landlord confirmed they did not require all of the adaptations to be rectified. This included not returning the doorways to the standard width, as the Landlord was happy with the wider doors. However, the property had wooden floors and in widening the doorways, some changes to the floor had to be made. As a result, the only rectification work required was in ensuring the flooring all matched, which we were able to achieve with minimal cost to Chloe. Most Letting Agents and Landlords have never heard of the Court of Protection or understand who a Deputy is. Some will ask questions such as ‘if P lacks capacity and has a Deputy, do they need to be treated any differently to any other tenant?’ We have found that with careful explanation and clear information on what P requires, the majority of Letting Agents and Landlords we come into contact with, will agree to P becoming a tenant, leading to a successful outcome. If you have any questions related to this article, or would like further information on our Court of Protection services, please get in contact with us by emailing Courtofprotection@boyesturner.com.
