Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
R (on the application of MT) v Oxford City Council
The Claimant (“MT”) had a mental disability that meant he was unable to manage his property and financial affairs. MT had been living at home and was being cared for by his family. The family became unable to provide this care and in October 2011 MT applied to be placed on the Local Authority’s housing register. The application was rejected on the basis that the Local Authority had no duty under Part 7 of the Housing Act 1996 (“the 1996 Act”) because MT did not have the capacity to make the application. The Local Authority relied on the House of Lords case of R v Oldham MBC ex parte Garlick  where it was held that an applicant had to be capable of accepting or rejecting an offer of accommodation.
MT applied for judicial review submitting that the Local Authority’s decision was inconsistent with Article 14 ECHR. MT also argued that the decision in Garlick was no longer good law because it was discriminatory towards those who lack capacity, contrary to Article 14 of the ECHR, when read together with Article 8 (a right to respect for private and family life).
The application was refused and the decision in Garlick was held to be determinative. The High Court noted that the 1996 Act was implicit in its provisions that accommodation was only available to those who had capacity to accept an offer. The High Court held that MT was not being refused public housing and was only being refused as an applicant for housing as homeless under the part 7 of the 1996 Act. He could still be assessed under the National Assistance Act 1948.
Although the High Court has refused permission to appeal, it will be interesting to see if a further application to appeal is made, as this decision raises some questions about the limited routes into housing for persons deemed to be lacking capacity.
For more information
Should you wish to discuss the implications of this case further please contact Helen Tucker on 0121 212 7459, firstname.lastname@example.org or Rose Klemperer on 0121 214 3504, email@example.com
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