The AGNI Decision and Residential Placements: Why It May Matter for Young People with EHCPs

A recent Supreme Court decision involving the Attorney General for Northern Ireland, often referred to as the AGNI decision, has significantly changed the legal test used to determine whether a person is deprived of their liberty.

Much of the discussion surrounding this decision has focused on adults who live in care homes, supported living placements, hospitals or other settings where they require ongoing supervision and support due to disability, illness or a lack of capacity to make certain decisions independently.

However, I believe the decision may also raise important questions for young people aged 16 to 25 with Education, Health and Care Plans, particularly those attending specialist residential placements named in Section I of their EHCP.

Whilst the Supreme Court’s decision was not specifically concerned with SEND law, it touches on issues that are often central to discussions about residential placements, including supervision, living arrangements, decision-making and the rights of vulnerable young people. It also raises important questions about the safeguards available to young people living in those settings and the role that consent may now play in those decisions.

At Little Nellie’s, we regularly support families navigating EHCP processes, including applications, reviews and disputes involving specialist residential placements. Because these placements involve both educational provision and living arrangements, the implications of these changes to the legal framework surrounding deprivation of liberty are difficult to ignore.

From Cheshire West to AGNI

Before the recent Supreme Court decision, the legal test for determining whether a person was deprived of their liberty was largely based on the Supreme Court judgment in Cheshire West.

Under what became known as the “acid test”, a person would generally be considered deprived of their liberty if they were under continuous supervision and control and were not free to leave.

Importantly, factors such as whether the person appeared happy with the arrangements, whether they objected, or whether the restrictions existed for a positive purpose were generally considered irrelevant. The focus was on the objective reality of the restrictions.

Where this threshold was met, deprivation of liberty safeguards applied. These safeguards exist to protect vulnerable individuals whose liberty needs to be restricted in order to keep them safe, ensuring that any restrictions are necessary, proportionate and in the person’s best interests.

The GOV.UK explanation of the 2026 Supreme Court judgment confirms that the legal position has now changed.

The AGNI ruling replaces the relatively straightforward Cheshire West approach with a broader, multi-factorial assessment.

Rather than focusing solely on supervision and freedom to leave, decision-makers must now consider a wider range of factors, including the nature of the restrictions, their duration and overall effect, the purpose of the arrangements, the person’s wishes and feelings, and whether the individual appears to be consenting to the arrangements.

This represents a significant shift from the Cheshire West approach. Factors that were previously considered largely irrelevant may now play a much greater role in determining whether a deprivation of liberty exists.

The consequence is that some individuals who may previously have met the threshold for a deprivation of liberty under Cheshire West may no longer do so under the AGNI approach. Where this happens, the safeguards associated with a deprivation of liberty would no longer apply.

Why Residential Placements Are Relevant In This Discussion

Whilst many people assume education ends at 18, young people with EHCPs can continue to receive educational support up to the age of 25 where it remains appropriate to do so. As a result, some young people with complex special educational needs or disabilities may move from secondary school into specialist residential placements.

Residential placements are very different from traditional educational settings. Whilst they provide education, they also provide accommodation, support with daily living, therapies, social opportunities and preparation for adulthood.

In many cases, a residential placement may be the most appropriate option because it can provide a level of support, structure and specialist provision that may not be achievable within the family home or a local setting.

However, the same factors that make a residential placement appropriate can also result in a high degree of supervision, routine and support. Young people may receive support with daily living activities, require supervision throughout the day, have restrictions placed on their movements, or rely on staff to manage risks and ensure their safety.

In some cases, this level of supervision and control may previously have meant that deprivation of liberty safeguards applied. For young people living in residential settings, these safeguards helped ensure that restrictions were properly considered, necessary and implemented in the person’s best interests.

For families trying to understand whether a placement is suitable, it is also important to look carefully at the EHCP itself. The wording in Section B, Section F and Section I can be critical because the plan should clearly connect the young person’s needs, the provision required and the placement being named. Our EHCP guides for parents explain how families can start reviewing these issues in a structured way.

The Role of Consent

One of the most significant aspects of the AGNI ruling is the greater emphasis now placed on a person’s wishes, feelings and apparent consent to their living arrangements.

This means that a person’s apparent acceptance of where they live may become an important factor when determining whether a deprivation of liberty exists, and therefore whether the associated safeguards apply.

This is where I believe important questions begin to arise for young people living in residential placements.

Many young people with SEND are highly trusting of the adults around them. They may accept what professionals tell them, rely heavily on the support provided, or assume that the arrangements put in place for them are the only realistic option available.

A young person may appear content because they have been reassured that the placement is the safest option, because they have settled into a familiar routine, or because they trust the professionals responsible for their care. None of these factors necessarily indicate that they have made a fully informed and independent decision about where they live.

This is not to suggest wrongdoing on the part of professionals or residential settings. In many cases, the placement may genuinely be the most appropriate option available and may be delivering excellent outcomes for the young person.

However, apparent contentment and meaningful consent are not necessarily the same thing. A young person may appear settled, compliant or accepting of their living arrangements without having made a fully informed and independent decision about where they live.

This is especially important where a young person has difficulty understanding abstract consequences, weighing alternatives or challenging adult authority. Those issues may also be relevant when professionals are considering mental capacity under the Mental Capacity Act 2005, particularly for young people aged 16 and over.

The Potential Implications

If apparent contentment is sufficient to establish consent, some young people who may previously have benefited from deprivation of liberty safeguards could potentially fall outside of that protection.

The significance of this is not simply that a legal label may no longer apply. The safeguards exist to ensure that restrictions placed upon a person are necessary, proportionate and in their best interests. They also provide a framework for ongoing oversight where significant supervision and control are involved.

This does not only affect the young person in isolation. The loss of formal oversight may also affect the role that families, representatives and advocates can play where concerns arise.

These safeguards do not simply authorise restrictions. They also provide important protections. These can include having a family member, friend or advocate formally involved in representing the person’s interests, the ability to request reviews of the arrangements in place, and the right to challenge those arrangements where appropriate.

For families who have concerns about a residential placement, the loss of these protections could create a difficult situation by removing formal opportunities to challenge or review arrangements that would previously have fallen within the safeguards framework.

Families may still have routes available within the EHCP process, particularly where the dispute concerns the suitability of the named placement, the provision in the plan, or whether the evidence supports a residential setting. Where that is the issue, it may be necessary to consider EHCP appeal options alongside any wider safeguarding, capacity or deprivation of liberty questions.

I appreciate that this is a developing area of law and the practical implications of the AGNI ruling remain uncertain. However, it is difficult to ignore the possibility that some young people may find themselves with fewer formal protections available, despite the underlying arrangements remaining largely unchanged.

Final Thoughts

The AGNI decision has introduced a significant shift in the way deprivation of liberty is assessed. Whilst the ruling was not specifically concerned with SEND law or residential educational placements, it raises important questions for some young people with EHCPs who live in specialist residential settings.

Residential placements can provide life-changing opportunities for young people with complex needs, offering specialist education, support, structure and preparation for adulthood. In many cases, they are the most appropriate and beneficial option available.

However, the same factors that make these placements appropriate may also result in restrictions which, whilst necessary and in a young person’s best interests, may previously have engaged deprivation of liberty safeguards.

The increased emphasis now placed on apparent consent has the potential to affect whether those safeguards continue to apply. If fewer young people fall within the safeguards framework, there is a possibility that some may lose protections that were previously available to them, despite the nature of their care and support arrangements remaining largely unchanged.

For that reason, I believe it is important that discussions surrounding the AGNI ruling do not overlook the potential implications for the SEND sector, particularly for vulnerable young people living in specialist residential placements.

If you are concerned about the wording of an EHCP, the suitability of a named placement, or whether the evidence properly supports a residential placement, Little Nellie’s EHCP support can help you review the plan, identify evidence gaps and prepare for the next stage of the process.