The Loans for Mortgage Interest Regulations 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 Secretary of State 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 Secretary of State is satisfied as referred to in sub-paragraph (a), he has not received the loan agreement and the documents referred to in regulation 5 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 shall be treated as though they were not in force 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 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 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beginning with the day on which the relevant person receives notification that the application for such a decision is withdrawn.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 paragraph (4) are—

(a) in England and Wales—

(i) a decision by the Court of Protection under section 16(2) of the Mental Capacity Act 2005(1) to appoint a deputy with power to act on the claimant’s behalf in respect of entering into a loan agreement;

(ii) the making of an order by the Court of Protection under section 16(2) of the Mental Capacity Act 2005 that embraces a decision on behalf of the claimant with respect to entering into a loan agreement; or

(iii) a decision by the Public Guardian to register a lasting power of attorney under the Mental Capacity Act 2005 where the power includes power to act on the claimant’s behalf in respect of entering into a loan agreement; or

(b) in Scotland—

(i) the making of an intervention order by the sheriff under section 53 of the Adults with Incapacity (Scotland) Act 2000(2) that embraces a decision on behalf of the claimant with respect to entering into a loan agreement;

(ii) the making of an order by the sheriff under section 58 of the Adults with Incapacity (Scotland) Act 2000(3) to appoint a guardian with power to act on the claimant’s behalf in respect of entering into a loan agreement; or

(iii) the making of an order by the sheriff or the Court of Session under the Judicial Factors Act 1849(4) to appoint a judicial factor with power to act on the claimant’s behalf in respect of entering into a loan agreement.

(1)

2005 c. 9.

(2)

2000 asp 4. Section 53 was amended by the Adult Support and Protection (Scotland) Act 2007 (asp 10).

(3)

Section 58 was amended by the Adult Support and Protection (Scotland) Act 2007.

(4)

1849 c. 51.