We have had a tenant under a S.117 continuing care cause around £50,000 of property damage however the commissioners are stating that they will not pay for these damages as they are not responsible. They have told us that we have to claim via our property insurance. Is this correct?
They have also stated that they will apply to the court to get the tenant moved out via the courts, however our tenant does not have mental capacity and nor does she have LPA or COP in place for a deputy to make the decision on her behalf.
If the person lacks capacity to manage a tenancy, who signed the tenancy agreement? If the person signed without the capacity to understand the agreement, then there is an argument that the agreement will be null and void.
NB. You state the individual ‘lacks capacity’. I am not expecting and answer on this forum, but the question must be asked - for what decision or decisions do they lack capacity. Were they assessed as having or lacking capacity to manage a tenancy when they signed the agreement?
Rent can be paid under an ombudsmen ruling that indicates a person under S117, who has been determined as requiring specialist accommodation should not shoulder any costs relating to a decision that then incurs rental costs/ service charges. However, I do not think this indicates that a tenancy can remain unsigned, it just indicates that the person in question is not responsible for the cost of rent. CoP would determine (f the person lacks capacity to understand a tenancy) who can sign the tenancy (usually the LA) so the authority can then pay then rent along with the other costs of support (if lucky there may be a contribution from health for this, but it depends on the ICB). I have used this ruling on a couple of occasions successfully (once with CoP Dol in place and once through an informal agreement with the ICB to preserve a placement). The issue here is around damage. I am not aware of any ruling that indicates an authority (ICB or LA) that are responsible for damage caused by the tenant. With regard to the commissioners stating their intentions, they can apply to the court and the court will decide if the correct procedures were in place from the start and what should happen next.