This guide is intended for use as a source of reference. It outlines common legislation and protective measures that can be used to safeguard adults experiencing self neglect. Use of legal powers can help bring about change, however enforcement powers usually have the most success when they are part of a planned approach, complemented by other forms of support.
This summary will not be fully comprehensive however. The range of circumstances within which a person may be subject to abuse are diverse and other legislation may be relevant. Furthermore the law is subject to continual change by means of new legislation and case law.
The purpose of this practice guide is to signpost practitioners to relevant common legislation. It should not be used as a replacement for legal advice.
Please note: This an addendum to the Leeds Self-neglect policies, procedures and guidance. Please also refer to Section 4. for further information including the Specific responsibilities of local authorities and Section 5.5 in relation to mental capacity, as well as the Self-neglect and mental capacity page
The Human Rights Act makes it unlawful for a Public Authority to act incompatibly with the European Convention on Human Rights, unless an Act of Parliament meant it could not have acted differently. A summary of key articles of the European Convention on Human Rights is included here. Refer to Equality and Human Rights Commission www.equalityhumanrights.com for a full description and explanation of each article.
Article 3 – Right to Live Free of Inhuman and Degrading Treatment
There shall be no interference by a public authority with the exercise of rights except such as permitted by the law, for a lawful purpose e.g. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals, or the protection of the rights and freedoms of others and is proportionate.
Article 5: Right to liberty
Everyone has the right to liberty and security of person. No one shall be deprived of hi his liberty save in the following cases and in accordance with a procedure prescribed by law.
Article 8: Right to respect for a private and family life
Everyone has the right for his private and family life, his home and his correspondence… There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
For a public body to interfere with this right, the actions would need to be lawful, necessary and proportionate. An action is ‘proportionate’ when it is appropriate and no more than necessary to address the problem concerned.
The First Protocol Article 1 – Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one should be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
This provision does not however impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties.
Again, for a public body to interfere with this right, the actions would need to be lawful, necessary and proportionate. An action is ‘proportionate’ when it is appropriate and no more than necessary to address the problem concerned.
Local authority environmental health departments have powers/duties to deal with waste and hazards. Principal legislation is noted below for reference and Environmental Health Officers should be consulted in relation to their remit and powers in relation to individual cases.
Environmental Protection Act 1990
Local authority environmental health departments have powers of entry to premises in respect of statutory nuisances.
Statutory nuisance is defined in section 79 of the Environmental Protection Act 1990 (EPA 1990) as '...any premises in such a state as to be prejudicial to health or a nuisance '.
'Prejudicial to health' is defined as '... injurious, or likely to cause injury, to health'. This means that both actual and potential injury to health is covered by the Act.
A Local authority has a duty to serve an abatement notice if a statutory nuisance exists (Section 80). If the notice is not complied with, the local authority may itself take action to address the nuisance.
In relation to residential premises 24 hour notice must be provided, unless it is an emergency. An emergency would be considered to apply where is there is reasonable cause to believe that circumstances exist that are likely to endanger health and that immediate entry is required.
If the person fails to comply with the requirements, the local authority may themselves carry the requirements and recover expenses reasonably incurred. The person may also receive a fine.
Public Health Act 1936
Where a local authority is satisfied that any premises are:
- in such a filthy or unwholesome condition as to be prejudicial to health, or
- verminous
The local authority officer will give notice to the owner or occupier requiring them to take such steps as specified to remedy the condition by cleansing and disinfecting them, or in the case of verminous premises taking such steps as to remove or destroy the vermin.
If the person fails to comply with the requirements, the local authority may themselves carry the requirements and recover expenses reasonably incurred. The person may also receive a fine.
Other duties and powers exist as follows:
-
Local Authorities have a duty to take action against occupiers of premises where there is evidence of rats or mice under the Prevention of Damage by Pests Act 1949.
The Anti-Social Behaviour, Crime and Policing Act 2014 provides for both injunctions and Community Protection Notices
Injunctions
Section 1 states that a civil injunction can be obtained if the court is satisfied that the person against who the injunction is sought has engaged or threatens to engage in anti-social behaviour and that it just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour.
The effect of an injunction may for the purpose of preventing the respondent from engaging in anti-social behaviour—
• prohibit the respondent from doing anything described in the injunction;
• require the respondent to do anything described in the injunction.
Section 2 states that anti-social behaviour means:
- conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
- conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
- conduct capable of causing housing-related nuisance or annoyance to any person.
The concept of “housing related nuisance” means direct or indirect interference with housing management functions of a provider or local authority, such as preventing gas inspections, will be considered as anti-social behaviour.
Premises Closure order
Only the police or a local authority can initiate the process to close premises which are causing antisocial behaviour, the serving of a closure notice (Section 76-79) must result in seeking an order from a Magistrates court.
A Magistrates' Court can make a closure order only if it is satisfied that:
- a person has engaged, or is likely to engage, in disorder, antisocial or criminal behaviour on the premises
- the use of the premises is, or is likely to be, associated with disorder or nuisance to members of the public, and
- the order is necessary to prevent the occurrence, or re-occurrence, of the disorder, nuisance or antisocial/criminal behaviour (Section 80)
Community Protection Notices
Part 4 of the Act provides for Community Protection Orders, whereby an authorised person, generally the police or local authority may issue a community protection notice to an individual aged 16 or over, or a body, if satisfied on reasonable grounds that—
- the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and
- the conduct is unreasonable.
A community protection notice is a notice that imposes any of the following requirements on the individual or body issued with it—
- requirement to stop doing specified things;
-
a requirement to do specified things
Landlords have powers in relation to the maintenance of their property. A landlord can take action for possession of the property for breach of a person’s tenancy agreement, where a tenant fails to comply with the obligation to maintain the property and its environment to a reasonable standard. This is provided for within the Housing Act 1985 in relation to secure tenancies or the Housing Act 1988 in relation to assured tenancies.
Causing a nuisance to others is also a reason for taking action for possession of the property as a breach of the tenancy agreement. A property that is unsafe for workman to enter due to its condition from squalor/hoarding may also be a reason to take possession action as a breach of the tenancy agreement.
Town and Country Planning Acts provide the power to seek orders for repairs to privately owned dwellings and where necessary compulsory purchase orders.
The Housing Act 2004 allows enforcement action where either a category 1 or category 2 hazard exists in any building or land posing a risk of harm to the health or safety of any actual or potential occupier or any dwelling or house in multiple occupation (HMO). Those powers range from serving an improvement notice, taking emergency remedial action, to the making of a demolition order.
Building Act 1984 - Where premises are in such a state as to be prejudicial to health or nuisance and there would be an unreasonable delay caused by following the procedures prescribed by Section 80 of the Environmental Protection Act 1990, the local authority can give notice to deal with the defective premises and recover expenses from the person upon who the notice was served. Section 76.
If it appears to a local authority that a building or structure is by reason of its ruinous or dilapidated condition seriously detrimental to the amenities of the neighbourhood, the local authority may also by notice require the owner thereof to execute such works of repair or restoration. Section 79
Gaining access to adult suspected to be at risk of neglect or abuse Powers of Entry
The following legal powers may be relevant, depending on the circumstances:
- If the person has been assessed as lacking mental capacity in relation to a matter relating to their welfare: the Court of Protection has the power to make an order under Section 16(2) of the MCA relating to a person’s welfare, which makes the decision on that person’s behalf to allow access to an adult lacking capacity. The Court can also appoint a deputy to make welfare decisions for that person.
- If an adult with mental capacity, at risk of abuse or neglect, is impeded from exercising that capacity freely: the inherent jurisdiction of the High Court enables the Court to make an order (which could relate to gaining access to an adult) or any remedy which the Court considers appropriate (for example, to facilitate the taking of a decision by an adult with mental capacity free from undue influence, duress or coercion) in any circumstances not governed by specific legislation or rules.
- If there is any concern about a mentally disordered person: Section 115 of the MHA provides the power for an approved mental health professional (approved by a local authority under the MHA) to enter and inspect any premises (other than a hospital) in which a person with a mental disorder is living, on production of proper authenticated identification, if the professional has reasonable cause to believe that the person is not receiving proper care. Section 115 does not allow for forced entry. However, obstruction without reasonable cause by a third party of the approved professional acting under Section 115 could constitute an offence under Section 129 of the Act.
- If a person is believed to have a mental disorder, and there is suspected abuse or neglect: Section 135(1) of the MHA, a magistrates court has the power, on application from an approved mental health professional, to allow the police to enter premises using force if necessary and if thought fit, to remove the person to a place of safety if there is reasonable cause to suspect that they are suffering from a mental disorder and (a) have been, or are being, ill-treated, neglected or not kept under proper control, or (b) are living alone and unable to care for themselves.
- Power of the police to enter and arrest a person for an indictable offence: Section 17(1) (b) of the Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60).
- Common law power of the police to prevent, and deal with, a breach of the peace. Although breach of the peace is not an indictable offence the police have a common law power to enter and arrest a person to prevent a breach of the peace.
- If there is a risk to life and limb: Section 17(1)(e) of the PACE gives the police the power to enter premises without a warrant in order to save life and limb or prevent serious damage to property. This represents an emergency situation and it is for the police to exercise the power.
- The Housing Act 2004 provides the local authority with the power of entry to properties for the purpose of enforcing a notice for housing repairs or for the purpose of carrying out an inspection to identify hazards that pose risk of harm to health and safety. A court warrant conferring powers of entry would be necessary if access was denied.
- Environmental Health officers have powers of entry under public health legislation, as do utility companies for disconnection or safety inspection purposes. Again a warrant conferring power of entry would be necessary if access was denied.
- Fire and Rescue Services Act 2004; Fire services have power to force entry where it reasonably believes a fire to have broken out (or to be at the point of breaking out) (Section 44)
For further information the Social Care Institute of Excellence Guide:Gaining access to an adult suspected to be at risk of neglect or abuse may be helpful.
In the event that self-neglect is associated with a mental health condition, alongside treatment and support, there are also legal powers in specific situations. Advice would need to be gained from mental health services within the local authority (or the court in the case of S.135) as to whether the Act would be applicable in specific situations.
Mental Health Act 1983 (as amended by the Mental Health Act 2007)
Under Section 2 of the Act an application for compulsory admission into hospital for up to 28 days where:
- the patient is suffering from mental disorder of a nature and degree that warrants his or her detention in a hospital for assessment (or for assessment followed by medical treatment); and
- he or she ought to be detained in this way in the interests of his or her own health or safety or with a view to the protection of others
Under Section 3 of the Act an application for admission for treatment can be made where:
- the patient’s mental disorder is of a nature and degree which makes it appropriate for him or her to receive medical treatment in hospital, and
- it is necessary for the health or safety of the patient or for the protection of other persons that he or she receives treatment, and
- the treatment cannot be provided without the detention, and appropriate medical treatment must be available
Under Section 7 of the Mental Health Act 1983 – Guardianship can be used to encourage people who live in the community to use services or to live in a particular place. The person must have a mental disorder of a nature and degree that merits guardianship.
A Guardianship Order confers upon the named Guardian the power to require the patient to reside at a place specified by them; the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; and the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.
Section 135 Mental Health Act 1983 (as amended by the Policing and Crime Act 2017). Under Section 135, a magistrate may issue a warrant where there may be reasonable cause to suspect that a person believed to be suffering from mental disorder has or is being ill-treated, neglected or kept otherwise than under proper control; or is living alone unable to care for themselves.
The warrant, if made, authorises any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, allow for the person to be removed and kept at a place of safety to enable further applications of the Mental Health Act 1983 or other arrangements for the person’s treatment or care.
The Mental Capacity Act 2005 provides a statutory framework to empower and protect people who may lack mental capacity to make decisions for themselves and establishes a framework for making decisions on their behalf. This applies whether the decisions are life-changing events or everyday matters. All decisions taken within the safeguarding adult procedures must comply with the Act.
An outline of key issues is included in Section 5.5 of the policy, but for further information refer to:
The Mental Capacity Act 2005 means that decisions previously taken by the Family Division of the High Court under common law, will now be made by the Court of Protection. However, issues falling outside of the Mental Capacity Act may still be considered by the High Court.
The inherent jurisdiction of the High Court can extend to a vulnerable adult who ‘even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint, or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing real or genuine consent’ (Re SA [2005] EWHC 2942 (Fam))
The courts have stated that they see the inherent jurisdiction – in relation to an adult with mental capacity to take a decision – as about facilitating decision making free of external pressure or physical restraint… [inherent] jurisdiction is not about imposing decisions concerning welfare or finance on a person (LBL v RYJ [2010] 2665 (COP)).
Section 8 (this creates an offence if the occupier of premises permits certain acts to take place on the premises).
‘A person commits an offence if, being the occupier or concerned in the management of the premises, he knowingly permits or suffers any of the following activities to take place on those premises…’
- Producing or attempting to produce a controlled drug…
- Supplying or attempting to supply a controlled drug to another or offering to supply a controlled drug to another….
- Preparing opium for smoking
- Smoking cannabis, cannabis resin or prepared opium’
The Animal Welfare Act 2006 can be used in cases of animal mistreatment or neglect. The Act makes it against the law to be cruel to an animal and the owner must ensure the welfare needs of the animal are met. Powers range from providing education to the owner, improvement notices, and fines through to imprisonment. The powers are usually enforced by the RSPCA, Environmental Health or Department for Environment, Food & Rural Affairs (DEFRA).
Under the Regulatory Reform (Fire Safety) Order 2005 the London Fire Brigade can serve a prohibition or restriction notice to an occupier or owner of a flat where there is a risk to other occupiers/residents; this notice would take immediate effect. This option does not apply to premises such as detached/semi-detached/town houses or other premises consisting of or comprised in a house which is occupied as a single private dwelling.
West Yorkshire Fire and Rescue Services will offer a range of support in relation to fire safety as set out in their Safe & Well Visits information https://www.westyorksfire.gov.uk/your-safety/home/safe-well-visits/