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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Relevant information for residence capacity
The courts have defined the relevant information for residence decisions with deliberate restraint. Following LBX v K, L and M, the person needs to understand in broad terms: the realistic options; what each place is like and what living there would involve; the sort of care and support available in each; the broad costs where they fall on the person; and the effect on how often they would see family and friends. What is excluded matters just as much: detailed funding mechanics, staffing arrangements and professional-level comparisons are not required, and a report that demands them sets the bar unlawfully high. This guide works through the list and the common errors.
Relevant information must be defined before assessment
Relevant information is the information the person needs to understand, retain, use or weigh for this decision. For capacity for Residence, this usually includes the available options, the type and level of care required, risks of each option, restrictions involved, likely consequences, impact on relationships, and whether the person can weigh practical realities rather than only express a preference. Defining that information at the outset avoids vague, unfair or overbroad assessments.
Apply the Mental Capacity Act test to this decision
The Mental Capacity Act 2005 requires a structured approach. The person must be presumed to have capacity unless lack of capacity is established. They must be supported to make the decision where practicable, and an unwise decision is not enough on its own. The assessment then asks whether an impairment of, or disturbance in the functioning of, the mind or brain causes the person to be unable to make this decision.
Identify the relevant information
For this topic, relevant information commonly includes the available options, the type and level of care required, risks of each option, restrictions involved, likely consequences, impact on relationships, and whether the person can weigh practical realities rather than only express a preference. The relevant information should be tailored to the person’s actual circumstances. It should not be copied from a generic template if the person’s options, risks or legal context are different.
Gather evidence before drawing conclusions
The assessment is stronger when the evidence is organised before the conclusion is reached. Useful evidence may include care assessments, support plans, risk assessments, hospital or care home records, family views, professional notes, accommodation options and records of the person’s wishes and feelings. Where records are missing, contradictory or out of date, the report should say so rather than overstate the certainty of the opinion.
Record practicable steps and communication support
The person should be given a meaningful opportunity to make the decision. This may involve simple language, written summaries, visual aids, additional time, breaks, support with hearing or sight, an interpreter, a familiar setting or a carefully timed appointment. The report should explain what support was tried and whether it helped.
Analyse use and weigh, not just understanding
Many capacity disputes turn on whether the person can use or weigh information, not whether they can repeat it. The assessor should consider how the person reasons through benefits, risks, alternatives and consequences. For capacity for Residence, this means looking at the person’s own explanation and whether any impairment prevents them from weighing the material information.
Consider risk, pressure and vulnerability carefully
Risk features should be recorded without turning them into shortcuts. Common issues in this area include conflating residence with care, treating compliance as consent, ignoring restrictions, overlooking coercion, or relying only on whether the person appears settled. The assessor should distinguish vulnerability, disagreement, family conflict and safeguarding concerns from evidence that the person is unable to make the decision.
What a strong report should contain
A strong report should include the instruction, the specific decision, the legal framework, the relevant information, evidence reviewed, practicable steps, direct assessment findings, functional analysis, causation and a clear conclusion. It should also explain any limitations, such as missing evidence, refusal to engage, fluctuating presentation or the need for further legal advice.
Key takeaway
Residence and care capacity are often connected, but they are not automatically the same decision. The relevant information must be tailored to the person’s actual options. The safest approach is disciplined and evidence-led: define the decision, tailor the relevant information, support the person, apply the functional test and explain the reasoning clearly.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Capacity for Residence?
Concrete details of each realistic option, presented accessibly, plus the person's own priorities. The assessor's job is to test understanding of the salient points of the actual choices, with support given first, and to record both the information provided and how it was provided.
When is a formal assessment for Capacity for Residence useful?
A formal assessment is most valuable where the residence decision is contested or connected to other proceedings: it fixes the relevant information used, so anyone reviewing the conclusion can check the bar was set where the courts put it.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Unsure what residence capacity requires?
Nellie Supports completes residence and care capacity assessments across England and Wales, with a same working day response to every enquiry and every report peer reviewed before delivery. Call 0333 987 5118 or visit the residence capacity assessment service page.