GUIDES
Residence capacity concerns the person’s ability to decide between realistic places to live with support. Refusing a proposed move does not by itself establish incapacity.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
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Residence capacity concerns the person’s ability to decide between realistic places to live with support. Refusing a proposed move does not by itself establish incapacity. The sections below explain the evidence, practical steps and limits of the assessment or process.
Capacity to decide where to live means being able to understand, retain, use or weigh the information relevant to the residence decision: the realistic options, what living in each would involve day to day, the sort of care and support available in each, the broad costs where they fall on the person, and the effect on contact with the people who matter to them. The courts, notably in LBX v K, L and M, have kept this list deliberately modest: the person does not need to weigh every detail a professional would. Residence is also its own decision, distinct from decisions about care. This guide explains the test and how it is assessed fairly.
Capacity to decide where to live is assessed against the actual choice the person faces: remaining at home with a package of care, moving to this particular care home, moving in with this relative. It is not a general question about housing or independence. The options genuinely available frame the relevant information, and a person can only be assessed against choices that actually exist, which is why the assessment should begin by establishing what is really on the table.
Drawing on the case law in this area, the person should broadly understand what the two or more options are, what sort of place each is, what care and support would be available in each, who they would be living with or near, in general terms the cost and how it would be met where that bears upon the choice, and what the realistic consequences of each option would be for their safety and daily life. The detail required is proportionate; the person is not expected to grasp every feature of a care contract.
The Mental Capacity Act 2005 asks whether the person can understand, retain, use or weigh that information and communicate a decision, and whether any inability is caused by an impairment of, or disturbance in the functioning of, the mind or brain. In residence cases the weighing element usually decides the matter: a person may describe both options accurately yet be unable to weigh their own care needs within the choice, or may hold to a picture of home, and of their own abilities there, that no longer corresponds to reality.
A strong wish to remain at or return home can reflect the person’s values and relationships. It is not itself a capacity finding. Explore the real options and foreseeable consequences with support, recording all functional abilities and any impairment and causal link. Distinguish a capacitous acceptance of risk from an inability to decide without requiring the person to adopt professionals’ preferred weighting.
Where the person lives, what care they receive and who they see are distinct decisions with distinct relevant information, and capacity for one does not determine capacity for another. They interact, because most residence options carry care arrangements within them, but the assessment should identify which decision it is addressing and keep the analysis separate, particularly where the conclusions may differ. Conflating them is among the commonest flaws in residence capacity evidence.
Support carries particular weight in residence decisions because the options are concrete and can be experienced. Practicable steps include visiting the proposed placement or using photographs and familiar descriptions, discussing the choice at the person's best time of day and in familiar surroundings, breaking the comparison into one feature at a time and returning after the person has had time to absorb the information. A conclusion reached without these steps, where they were available, is vulnerable on the face of the Act.
Residence capacity is often assessed at the worst moment: in hospital, after a crisis, under discharge pressure, in unfamiliar surroundings that flatten anyone's presentation. Delirium and the after-effects of acute illness can depress capacity temporarily, and a conclusion reached in that window may not reflect the person at home a month later. Where timescales allow, assessment in familiar surroundings, or reassessment once the acute picture settles, produces evidence that is both fairer and more durable.
The report should set out the actual options, the relevant information for the choice between them, the practicable steps taken, the person's own account of the options and their reasoning, the functional analysis, the causative link to any impairment and a conclusion confined to the residence decision assessed. Where the person lacks capacity, the report should also record their wishes and feelings about where they live, because those wishes carry substantial weight in any best interests decision that follows.
Capacity to decide where to live is tested against the real options, with the weighing of the person's own needs at its centre and the pull of home treated as the legitimate wish it is rather than a symptom. Anchor the assessment to the actual choice, support the person to engage with it and keep residence distinct from care and contact, so the conclusion, whichever way it falls, stands on the decision the person actually faced.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
Details of the realistic options, any care needs assessments, records showing how the person manages at home and the person's own account of what matters to them. The assessment tests understanding of the actual choices on offer, not hypothetical moves.
Formal assessment matters most where a move to a care home is proposed against the person's wishes, where family members disagree, where Deprivation of Liberty Safeguards or Court of Protection processes are engaged, or where a home may be sold behind the move. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
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