# The AGNI Decision and Residential Placements: Why It May Matter for Young People with EHCPs| Nellie Supports Ltd

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Published: 2026-06-24T11:40:24Z

Updated: 2026-06-24T11:40:24Z

# 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.

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A recent [Supreme Court decision involving the Attorney General for Northern Ireland](https://supremecourt.uk/cases/judgments/uksc-2025-0042), 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](https://www.nelliesupports.com/services/ehcp-support), particularly those attending specialist residential placements named in [Section I of their EHCP](https://www.nelliesupports.com/ehcp-dynamic-pages/section-i-ehcp-placement-explained).

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](https://www.nelliesupports.com/about-nellie-supports/little-nellies), 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.

Editorial update, 18 October 2026: the [GOV.UK](http://gov.uk/)[ explanation of the 2026 Supreme Court judgment](https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty), updated 22 September 2026, confirms that Attorney General for Northern Ireland Reference [2026] UKSC 16 changed the deprivation-of-liberty approach with immediate effect. The reflections below concern its possible implications for residential education in England.

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

The assessment considers the person’s concrete situation and the type, duration, effects and manner of restrictions; no single factor is determinative. Supervision and freedom to leave remain relevant. The judgment also addresses consent for Article 5 purposes, which must be distinguished from capacity under the Mental Capacity Act.

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

Young people with EHCPs in England may continue to receive provision beyond 18, including up to age 25 where the statutory criteria are met. That is not an automatic entitlement to a plan until 25. Some young people with complex needs move into specialist residential education 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.

The route to authorisation depends on age, setting and the legal basis. MCA DoLS applies to adults aged 18 or over in relevant hospitals and care homes; it is not a universal scheme for every residential school or college. Other settings, and 16- and 17-year-olds, may require a court route. The appropriate framework must be identified in the individual case.

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](https://www.nelliesupports.com/services/training-and-conferences/ehcp-guides) explain how families can start reviewing these issues in a structured way.

## The Role of Consent

The judgment distinguishes valid consent for Article 5 purposes from domestic MCA capacity. A person’s actual understanding and expressed wishes matter, and compliance is not enough by itself. The government guidance says valid consent must not be inferred where there is serious doubt.

Apparent acceptance therefore needs careful examination. It cannot simply be treated as a capacity finding or a universal reason to withhold safeguards.

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](https://www.legislation.gov.uk/ukpga/2005/9/contents), particularly for young people aged 16 and over.

## The Potential Implications

My concern is that, if apparent contentment is interpreted too readily as consent in practice, some young people could lose scrutiny they previously received. That concern must be read alongside the judgment’s requirement to examine consent carefully; contentment alone is not a general legal test.

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](https://www.nelliesupports.com/ehcp-dynamic-pages/ehcp-appeal-guide) 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 new approach may change whether Article 5 safeguards apply in an individual case. My concern remains how that change is implemented: fewer formal safeguards must not become a reason to overlook restrictions, communication needs or evidence of objection. Other legal, safeguarding and EHCP responsibilities continue to require attention.

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.

[Little Nellie’s EHCP support](https://www.nelliesupports.com/services/ehcp-support) describes help with plan wording, placement evidence and appeal preparation in England. Questions about consent, restrictions or deprivation-of-liberty authorisation may also need advice from a suitably experienced legal professional; an EHCP review does not resolve those questions on its own.

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## Recent Posts

## Primary sources and official guidance

[SEND Code of Practice: 0 to 25 years](https://www.gov.uk/government/publications/send-code-of-practice-0-to-25)

## Related information

- [EHCP and SEND support for families in England](https://www.nelliesupports.com/services/ehcp-support)
- [Draft EHCP review](https://www.nelliesupports.com/services/ehcp-support/draft-ehcp-review)
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