The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
We believe that every person should be:
- Treated as an individual;
- Empowered and supported to make their own decisions about their life; and
- Free from undue pressure or abuse.
Our philosophy and approach fit neatly with the principles of the MCA. However, despite its worthy aims, in practice, the application of the MCA can be patchy. There is more to learn, which is well illustrated by the recent case of CH v A Metropolitan Council  EWCOP 12.
CH was 38 years old. He was born with Downs Syndrome and also had a learning disability. He married WH in 2010, and they lived together at his parent's home. They later sought fertility treatment, which led to an assessment by a clinical psychologist who determined that CH lacked the capacity to consent to sexual relationships. A letter was sent to WH in March 2015, advising her to abstain from sexual intercourse with CH to avoid committing a serious criminal offence under Sections 30-1 of the Sexual Offences Act 2003. WH also understood that if she continued to have sexual relations with her husband, the local authority might remove her or her husband from the home.
WH moved into another bedroom and reduced physical displays of affection with CH – so as not 'to lead him on'. We can only imagine how distressing all of this was for CH.
What should have happened next?
Section 1(3) of the MCA provides: "A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success." The consultant psychologist made it clear that CH needed a course of sex education, which should enable him to achieve the necessary capacity to consent to sexual relations with his wife. However, the local authority failed to provide that education for CH, despite repeated and lengthy requests. Proceedings followed in the Court of Protection; the provision of the sex education was ordered and then began in June 2016. CH made good progress in his understanding and in March 2017, CH and WH were able to resume a normal marital relationship.
Comment on the case
Although it may seem unconscionable to the reader that a committed and loving couple should have to experience this form of intrusion, Sir Mark Hedley commented:
“Logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society's entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”
The initial decision made by the authorities in relation to CH and WH was made in accordance with the law. However, the failure to follow through and apply the principles of the MCA and support CH to gain understanding and acquire the necessary capacity to resume sexual intercourse with his wife breached CH’s right to a private and family life under Article 8 of the European Convention on Human Rights.
The local authority was required to:
- Make a formal apology to CH for the delay in providing him with the sex education; and
- Pay the sum of £10,000 in damages.
Anthony Collins Solicitors
Supporting our clients to make their own decisions is at the heart of what we do. We enjoy seeing our clients live as independently as possible.
We are marking the 10th anniversary of the MCA with a series of articles exploring different aspects of our and our clients’ experience.
This is culminating in a party – the MCA birthday party – where we will celebrate this important piece of legislation with those most important to us; our clients (aged between 5 and 92) and their families. There will be fun and games – and, of course, a birthday cake!
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
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