The Loans for Mortgage Interest Regulations (Northern Ireland) 2017

Transitional provision: lack of capacity

20.—(1) Paragraph (2) applies where the following conditions are met in relation to an existing claimant—

(a) the Department is satisfied on or before 5th April 2018, or later than that date but within 6 weeks beginning with the loan payments offer date, that the claimant is a person who lacks capacity to make some or all decisions about entering into the loan agreement;

(b) an application for a decision as referred to in paragraph (6) is made on or before 5th April 2018, or later than that date but within 6 weeks beginning with the loan payments offer date; and

(c) at the time the Department is satisfied as referred to in sub-paragraph (a), the Department has not received the loan agreement and the documents referred to in regulation 5 (conditions to meet before the loan payments can be made) and has not received a notification from the claimant that the claimant does not wish to accept the offer of loan payments.

(2) Where this paragraph applies, the amendments made by Schedule 5 (consequential amendments) shall be treated as though they were not in operation until the day that is the earlier of (“the transitional end day”)—

(a) the day referred to in paragraph (3); or

(b) the day immediately following the day on which entitlement to a qualifying benefit ends.

(3) The day referred to in paragraph (2)(a) is the later of—

(a) the day immediately following the end of the first benefit week, in the case of a legacy benefit claimant or SPC claimant, or the end of the first assessment period, in the case of a UC claimant, that ends on or after 6th April 2018; or

(b) the day immediately following the day referred to in paragraph (4).

(4) The day referred to in paragraph (3)(b) is the earlier of—

(a) the last day of the period of 6 weeks beginning with the day on which the relevant person makes a determination as to whether to make a decision referred to in paragraph (6); or

(b) the last day of the period of 6 weeks beginning with the day on which the relevant person receives notification that the application for such a decision is withdrawn.

(5) In paragraph (4), a relevant person makes a determination where the person makes a determination that is not dependent on receiving more information about the claimant’s circumstances.

(6) The decisions referred to in paragraphs (1) and (4) are—

(a) a decision by an attorney under an enduring power of attorney made in accordance with Enduring Powers of Attorney (Northern Ireland) Order 1987(1) to act on the claimant’s behalf in respect of entering into a loan agreement; or

(b) the making of an order by the court under section 101 of the Mental Health (Northern Ireland) Order 1986(2) to appoint a controller with power to make a decision on behalf of the claimant with respect to entering into a loan agreement; or

(c) a decision of an attorney who has been appointed under the Powers of Attorney Act (Northern Ireland) 1971(3) to act on the claimant’s behalf in respect of entering into a loan agreement.

(7) For the purposes of this Regulation, a person lacks capacity in relation to a matter if at the material time that person is unable to make a decision for himself or herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(8) For the purposes of paragraph (7), it does not matter—

(a) whether the impairment or disturbance is permanent or temporary, or

(b) what caused the impairment or disturbance (and in particular, it does not matter whether the impairment or disturbance is caused by a disorder or disability or otherwise than by a disorder or disability).

(1)

S.I. 1987/1627 (N.I. 16).

(2)

S.I. 1986/595 (N.I. 4).

(3)

1971 c. 33 (N.I.).