Every vote counts

Can anyone and everyone vote? What about people with learning disabilities, or a brain injury, or a diagnosis of dementia? Does their reduced mental capacity affect their right to vote?

As long as a person is over 18, and meets the nationality and residency criteria laid out by the Electoral Commission, that person is entitled to vote, regardless of any impaired mental capacity.

There is, however, an obstacle en route to that polling station - “individual voter registration”.

Previously, one person in each household was responsible for registering everyone living at that address. However, since 10 June 2014 in England and Wales, and 19 September 2014 in Scotland, under “individual electoral registration” each person must register individually.

This involves supplying basic “identifying information”, for example, your date of birth and national insurance number, to enable your identity to be verified.

There is a further requirement, however, in England, Wales and Scotland that the person applying to register must make a “declaration of truth” by signing or making their mark to declare that the information provided is true.

The guidance issued by the Electoral Commission for would-be voters in England and Wales goes on to say that, as an alternative, a person with “an appropriate power of attorney may make the declaration on behalf of the applicant”. However, in Scotland, under the Adults with Incapacity (Scotland) Act 2000, an attorney cannot make an application to register on behalf of the person.

Therefore, although there is no test of mental capacity to vote, there is now a test of mental capacity to register to vote. This new threshold test of capacity is likely to cause problems for people with learning disabilities or dementia and could stop them from being able to lawfully cast their vote on 8th June.

Guidance states that where the Electoral Registration Officer (“ERO”) is notified that a person lacks mental capacity to register, they should make further enquiries and explain the help that can be given to assist that person. However, if they are satisfied that the person does indeed lack the mental capacity to register, they must then consider if it is appropriate to follow up with the usual consequences of failing to register – which can include the imposition of a fine.

There are a number of issues that result from all of this:

•  A person who is legally entitled to vote can be prevented from doing so by the introduction of an intervening test of capacity to register to vote;
• In England and Wales, there is a lack of clarity regarding who can make the declaration of truth on behalf of someone else. The guidance mentions attorneys – are these property and finance attorneys, or health and welfare attorneys? And what about court appointed deputies – can they make the declaration on behalf of the individual?; and
• The correspondence sent out by the Electoral Commission, with the “threat” of a fine for failure to register, can be worrying and distressing to the individual.

What should carers and care providers do?

Until the Electoral Commission removes the obstacle of “capacity to register to vote”, it is inevitable that some people with learning disabilities, dementia or other cognitive impairment may struggle to register, and therefore vote.

The Law Society Mental Health and Disability committee are working with the Electoral Commission to explore how this situation can be addressed.

In the meantime, our experience suggests that if a carer or support worker rings or emails the ERO, or otherwise enables the person they support to make that contact, the ERO will probably be understanding and helpful. At the very least, the threat of a fine or further chasing correspondence should simply go away – until the next time.

Further information

For more information please contact Sheree Green, our Court of Protection lead at Anthony Collins Solicitors, and Chair of the Law Society mental Health and Disability Committee. Alternatively, please visit our website.