Public Law Experts Lead Landmark Case That Will Help Ensure Those Who Lack Capacity Are Not Prevented From Claiming Housing Benefits

Lawyers instructed by the Official Solicitor to act for a severely disabled woman who faced eviction from her home because the local council claimed she was not eligible for housing benefits have won a landmark battle for justice that will see her remain in the specially adapted annex her parents built for her care.

Public law experts at Irwin Mitchell launched a battle to keep Emmy Myerson, 20, in her house, built by her parents Tussie and David next to their home in Birlingham, Worcestershire, where she receives 24-hour support from a team of carers.

A new and novel interpretation of the Mental Capacity Act 2005 helped ensure that the council can and should fund housing benefit to help disabled people stay in their own accommodation annexed next to the family home.

Polly Sweeney, a public law specialist at Irwin Mitchell, successfully represented Emmy at the Upper Tribunal - a specialist court that hears welfare benefit appeals - at which the judge established a new legal principle that will pave the way for similar cases in the future and ensure that other disabled people are not prevented from accessing the housing benefit they are entitled to.

Polly Sweeney of Irwin Mitchell said: “This decision confirms that disabled people who do not have the capacity to sign a tenancy agreement will not be prevented from claiming housing benefit. The legal principles that have been established in this case are of vital importance in ensuring that disabled people remain able to live independently in suitable accommodation which provides them with the best quality of life possible.

“I am delighted that Emmy has finally received the three years of backdated payments that she was owed from the council and will now be able to continue living in her home provided with the 24-hour care she needs where she has thrived since moving in at the end of 2008.”

Emmy’s parents Tussie and David specifically built the annex four years ago, due to the lack of any alternative accommodation for providing the palliative care which Emmy required, believing that Emmy would be entitled to housing benefits to meet rental payments for the property following advice from the County Council.

But problems began shortly after she moved in, when Wychavon District Council argued Emmy did not qualify for housing benefit as there was no valid commercial tenancy agreement in place.

Acting on behalf of Emmy after being instructed by the Official Solicitor (someone who represents those who lack capacity and are unable to represent themselves), law firm Irwin Mitchell successfully appealed the decision to the First Tier Tribunal for welfare benefit appeals which found that Emmy was able to claim housing benefit.

Wychavon District Council appealed this decision to the Upper Tribunal where their appeal was allowed as the Tribunal found that Emmy, because of her disabilities did not have capacity to enter into a tenancy agreement, and that without a valid agreement, she couldn’t claim for housing benefit.

Instructed by the Official Solicitor on Emmy’s behalf, Irwin Mitchell then appealed the decision again and the Upper Tribunal Judge agreed to reconsider his decision. This time, the Judge found that even though Emmy’s disabilities meant she couldn’t sign a tenancy agreement, under the Mental Capacity Act 2005, she could still claim housing benefit because the accommodation was necessary as she could not live in her parents’ home due to lack of space. 

As a result, the decision saw Emmy awarded three years of backdated housing benefits from Wychavon District Council meaning she can afford to stay in the annex with support from her team of carers.

Emmy’s mum, Tussie Myerson, said: “The last three years have been very difficult for the whole family because Emmy’s future has been so uncertain.

“We built the annex for Emmy in 2008 so she could remain living close to us but had the facilities required for her carers to live with her and look after her round the clock.

“When the council said she wasn’t eligible for housing benefits we just couldn’t believe it. Emmy is profoundly disabled and will never be able to work but, at the same time, she couldn’t remain living in the family home as we just did not have the space and facilities she needs.

“I can’t describe the sense of relief we feel now knowing Emmy is able to stay in her annex close to us and I hope her case gives hope to other families out there who are in a similar situation. The success of managing her care as we have has meant that Emmy has avoided hospitalisation for over three years and the relative stability of her health is core to her quality of life. This makes it even more a relief that she can stay where she is.

Polly Sweeney added: ““It is important to remember that those who care for disabled people who live independently in the community should still make sure that they have the protection of a valid tenancy agreement in place, however, if individuals are not in that position, like Emmy, then this Judgment will ensure that you are not left at risk of being evicted because you cannot claim housing benefit until a proper tenancy agreement is in place”.