A man lives in his brothers home as a lodger, paying rent. He has a bedroom of his own, but shares other facilities in the house with his brother’s family, including the bathroom, kitchen and lounge, etc., etc.. Because of concerns for his mental health, the landlord-brother invites mental health services in to his home to consider how to help his lodger-brother. Resistant to the idea of it, the man retreats to the safety of his own room and makes it clear he doesn’t want anyone to enter his bedroom and wants mental health services and the police to leave. Now, for the purposes of this blog, it doesn’t matter which of the two scenarios you want to consider this happening in –
- No Mental Health Act assessment (MHAA) has occured so we’re wondering if a s135(1) warrant required to enter the room?
- A MHAA has occured so it’s a question of whether a s135(2) warrant required to enter the room to remove the patient to hospital after the application is made?
I’m no kind of expert in housing law, as you might imagine! … I’m aware of the R v Rosso case (2003) which involved a patient who had been ‘sectioned’ resisting the entry of police officers to a hotel room. He was charged under criminal law with assaulting the officers and convicted but he appealed against his conviction by arguing the officers needed a warrant under s135(2) to enter the hotel room and were therefore not acting in the execution of his duties. The case is much misunderstood because the Court of Appeal rejected his appeal and ruled officers did not need a warrant. Many people forget this was a for a very particular reason: the room he was in at the time was NOT the room he’d paid to stay in. The television in his own room was broken, so the hotel agree he could use another room purely for the purposes of watching TV. He had no right of occupancy over the room he was in, hence he had no right to deny the officers access after they had secured the hotel manager’s permission. If he’d been in his own hotel room, it seems likely the court would have ruled a warrant was necessary – but he wasn’t, so it isn’t!
Things become more complicated when we leave hotels or hostels behind and start thinking about various types of domestic dwelling. A few spring to mind –
- A house is completely rented out to a couple with some kids as a family home – the landlord lives elsewhere.
- A house is rented out to some students or young professionals where they each have their own bedroom, but share communal facilities like bathroom, kitchen, lounge, etc.. – the landlord lives elsewhere.
- A landlord rents out a room to a lodger, who has their own bedroom in a house which the landlord and their family also use – they share the kitchen, bathroom and lounge, etc..
- A landlord rents out a room or rooms to lodgers, but lives distinctly and separately within the same building, for example, in a self-contained attic flat – the lodger’s do NOT share a kitchen, bathroom or lounge with the landlord, but they do share with each other.
Scenarios 1 and 2, above – these are straight-forward enough: the family, the students and the young professionals have a tenancy which affords them rights of course sole occupancy which mean they are allowed to take decisions about access. In scenario 2 the only difference is, that student A can grant access to communal areas and to student A’s own room, but not to student B or student C’s room. In any shared dwelling, one person granting access to a part of the building they are allowed to grant access to is sufficient to overcome the objection of others. So, my wife may grant access to our house and that person would not be trespassing even if I had objections to them being there. Finally, tenancy’s usually give landlords rights of access with notice in order to inspect and maintain the property but that should normally be agreed with the tenants in advance, wherever possible, and terms around it specified in the contract.
Scenarios 3 and 4 are a touch more complicated – and my thanks go to Leicestershire Police’s Street triage team for the Sunday morning headache after they had a version-3 type situation. My instinct was that a warrant would probably be needed as the lodger is paying rent for the provision of the room and is entitled to privacy, etc., etc.. Turns out, I was wrong! … so every day’s a skool day. The UK Government and the Citizen’s Advice Bureau both have information pages on their websites and they unequivocally state a lodger, renting a room in a house where they share facilities with their landlord, has no exclusive right of occupancy and a landlord would be entitled to enter the room or grant access, albeit subject to reasonableness and some level of affording privacy to the person, given what kinds of things people get up to in their own bedrooms! It therefore follows, if the landlord has a right of access, they have a right to grant access to others – no warrant required, in either of the scenarios under section 135 MHA.
So the way to assess things is to ask whether the person has a right to deny others access to the room? Lodger’s don’t, if they’re sharing communal facilities with their landlord. Lodger’s who don’t share with their landlord and tenants whose landlord lives elsewhere, do have that right. So the need for warrants should be construed accordingly, but if there is doubt about the lawfulness, a warrant can be considered to ensure the rights of those of us with mental health problems is protected.
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