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Neutral Citation Number:	2011 UKUT 354 AAC
Reported Number:
File Number:	CSH 168 2010
Appellant:	Glasgow City Council
Respondent:	AL
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	20/07/2011
Date Added:	13/09/2011
Main Category:	Housing and council tax benefits
Main Subcategory:	liability, commerciality and contrivance
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 20. Housing benefit – capacity of claimant to enter into a contract of lease – proper approach to determining legal capacity The claimant applied for housing benefit in respect of the tenancy of a property owned by his mother. His application was rejected because the tenancy was not on a commercial basis. The local authority reconsidered the decision but did not alter it. The claimant appealed to the First-tier Tribunal, which held that the tenancy was on a commercial basis. That decision was set aside by a district tribunal judge who remitted the matter for a re-hearing by the First-tier Tribunal. At the re-hearing, the First-tier Tribunal again upheld the appeal but on the basis that the claimant lacked capacity to contract and was liable to make payments to his mother under the common law doctrine of recompense. The local authority appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. the question arising in this case was the claimant’s legal capacity to enter the contracts of lease material to his application for housing benefit (paragraph 6); 2. the test for legal incapacity set out in R(IS) 17/94 and paragraph 6 of CSH/5/2009, as followed by the tribunal, was no longer correct in law (paragraph 10); 3. the proper test for capacity to be applied was the individual claimant’s specific capacity in particular circumstances, for a particular purpose at a particular time. The law was correctly stated by Professor McBryde in paragraph 3-46 in Contract (3rd edition) (paragraph 10); 4. this test was consistent with the approach set out in the Adults with Incapacity (Scotland) Act 2000 (paragraph 10); 5. there is a presumption in favour of capacity which can only be overcome by independent and informed evidence. The appointment of an appointee for benefit purposes is not conclusive on an issue of capacity to contract and is only an adminicle of evidence on that question (paragraph 11).
Decision(s) to Download:	[2012] AACR 20bv.doc [2012] AACR 20ws.doc