In LM v Sussex Integrated Care Board (ICB) [2025] EWCOP 50 (T2), the Court of Protection held that capacity assessments for residence and care were inextricably linked and could not be artificially separated, finding LM lacked capacity in both domains. 

The Judge disagreed with the evidence of the two experts and concluded that LM lacked capacity to make decisions relating to both care and residence, finding that these two capacity decisions were interlinked in this case and could not be separated when assessing capacity in these domains.

LM had been deemed by the experts to have capacity to make decisions about residence but not in relation to care and support arrangements. The concern with this finding was that if LM decided to live in a property where his care could not be commissioned, the ICB might not be able to fulfil their commissioning responsibility to LM.

Browne Jacobson acted for the ICB in this complex capacity case. We can provide advice to ICBs in relation to court of protection applications, particularly in cases in which P’s capacity to make decisions in certain domains is unclear.

Background 

LM is a 27-year-old male who was involved in a road traffic accident in 2013. As a result, he sustained a significant brain injury which affects most aspects of daily living.

The brain injury which LM sustained gives rise to a frontal lobe paradox (FLP). FLP is the discrepancy between an individual with frontal lobe damage performing well on cognitive tests and interviews, while struggling with everyday life. The frontal lobes are responsible for executive functions and damage can impair skills like planning and decision-making, even though the individual may be able to verbally describe what they should do. Consequently, such an individual can be misjudged as being more capable than they are, especially during formal capacity assessments. FLP is manifested by an individual's ability to "talk the talk" but not "walk the walk".

Around December 2020, LM moved to live at Placement 1. In December 2024, and in the context of LM’s desire to move to a less restrictive environment, the judge approved LM’s move to a community placement at Placement 2, which was intended to be a trial for six months. Unfortunately, LM did not settle at Placement 2 and there were concerns for his safety. On 4 March 2025, the judge ordered that it was in LM's best interests to live back at Placement 1 until further order and, upon a deprivation of liberty standard authorisation being granted, the proceedings were to be reconstituted as an application under section 21A, i.e. a challenge to the standard authorisation.

LM is in receipt of Continuing Healthcare funding and the ICB is the responsible commissioner for his NHS care. The ICB was the respondent to the Court of Protection proceedings and was represented by Ian Brownhill from 39 Essex chambers. 

Why was there a dispute on residence and care?

The central dispute arose from a disagreement between LM, the ICB (as responsible commissioner for LM's NHS Continuing Healthcare funding), and other parties as to whether LM's capacity to make decisions about his residence could be assessed independently of his acknowledged lack of capacity to make decisions about his care and support.

It was agreed by all parties, based on the reports of the single joint expert Dr Radcliffe and the assessments of the provider psychiatrist Dr L, that LM lacked capacity to make decisions about care and support, and had capacity to make decisions about engaging in sexual relations. However, both Dr Radcliffe and Dr L had concluded that LM retained capacity to decide where he should live.

The question of residence capacity was critical because when the time came for LM to leave Placement 1 and move into the community, it was universally acknowledged by everyone involved in the case that he would need to do so with 24-hour one-to-one support. 

The ICB had been searching for alternative placements for LM and had identified potential options, including three supported living placements requiring further exploration and care planning. The proceedings were being pursued on the basis that LM's stay at Placement 1 would end at some stage and he would move to another placement in his best interests. The core concern was that if LM was found to have capacity to decide where he lived, he could reject the care package that was to be made available to him and considered to be in his best interests – a likely prospect given he had previously told Dr Radcliffe he did not need such a care package.

Key issues for determination

The critical issue: Can residence and care be separated?

The central legal question before the court was whether LM's capacity to make decisions about residence could be assessed separately from his capacity to make decisions about his care and support.

The ICB submitted that an approach of considering questions of capacity by reference to self-contained silos i.e. separate issues was consistent with the principles of the Mental Capacity Act 2005, which was decision-specific. The ICB submitted that the decision in relation to capacity for residence and capacity for care were not linked and could be assessed separately. Therefore, an individual could have capacity to make decisions in relation to residence but lack capacity to make decisions in relation to care. 

On behalf of LM, it was submitted that the starting point was that on the facts of this case the issues of residence and care were "inextricably linked". The judge was reminded that the determination of capacity is issue-specific, and that the options for LM's residence would include the support which LM needed. Therefore, a decision on capacity of care could not be considered without looking at where the care would be delivered. Therefore, if someone lacked capacity for residence they would be deemed to in relation to care as they could not say that they wanted to live in a flat in Mayfair when the care would be provided in Sussex. That would be an impossible task for commissioners and thus the two issues of capacity of residence and care were inextricably linked.

The judge's decisions and reasoning

The judge concluded that LM lacked capacity to decide where he should live. Although Dr L and Dr Radcliffe had concluded otherwise, the judge could not accept their analysis. On the facts of this case, care and accommodation were so closely connected that they could not realistically be separated. LM's inability to appreciate his need for intensive support directly affected his ability to make a meaningful decision about accommodation. The level of care he required dictated the type of accommodation available, and LM had repeatedly asserted that he does not need support - a belief that illustrated his inability to understand the foreseeable consequences of rejecting care.

Conclusion

The judge concluded that LM lacked capacity both to conduct the proceedings and to decide where he should live.

This case illustrates that capacity assessments for residence and care should often be considered together, rather than in isolation. The judgment emphasises that whilst capacity is decision-specific, courts must avoid artificial compartmentalisation when the decisions are so closely interrelated that separation would be unrealistic. Where an individual's inability to appreciate their care needs fundamentally affects their ability to make meaningful choices about accommodation, those decisions cannot be artificially separated. This principle has been emphasised in other previous cases, such as Liverpool City Council v CMW [2021] EWCOP 50.

Practical takeaways

• Capacity assessments for residence and care should not be artificially separated where the decisions are factually interrelated. Assessors should consider whether an individual's care needs dictate the type of accommodation available.
• Clinicians and legal practitioners should be alert to the frontal lobe paradox, where an individual may present well in formal assessments but lack the ability to implement decisions in practice, i.e. individual's ability to "talk the talk" but not "walk the walk".
• Commissioners should consider the practical consequences of a finding of capacity in one domain but not another. In particular, whether a capacitous residence decision could undermine the ability to deliver a care package assessed as being in the individual's best interests.
• The court retains the ability to depart from expert evidence on capacity where the facts demonstrate that the expert's analysis does not withstand scrutiny, reinforcing the importance of thorough and well-reasoned capacity assessments.