Mental Capacity Assessment
Mental Capacity Assessment for Residence Decisions
A residence capacity assessment is a decision-specific assessment of whether a person can decide where they should live, applying the Mental Capacity Act 2005. It is based on the options actually available, such as staying at home with a package of care or moving to a care home or supported living. Residence is a separate decision from care, so a person may be able to make one but not the other.
Decision-specific capacity assessments about where a person should live, for families, solicitors, local authorities and the Court of Protection across England and Wales.
At a glance
Decision
Where to live
Legal framework
Mental Capacity Act 2005 and LBX v K, L, M
Format
Face to face or remote
Report
Court-ready and peer reviewed
Coverage
England and Wales
£600 + VAT
Standard fee, stated before instruction
5 working days
Turnaround from assessment visit
England and Wales
Nationwide coverage
Residence, not care
Decisions kept distinct
Plain-English explanation
What is a mental capacity assessment?
A mental capacity assessment is a decision-specific and time-specific process used to determine whether a person can make a particular decision for themselves. Under the Mental Capacity Act 2005, the assessor considers whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. A person can only be found to lack capacity where an impairment of, or disturbance in, the functioning of the mind or brain causes their inability to decide. It is not a general test of intelligence, memory or diagnosis, and every practicable step must first be taken to support the person to make the decision.
The decision concerns where the person lives: remaining at home, returning home, moving to residential or nursing care, or moving into supported living.
The assessment is built around the options that are genuinely available. A person cannot weigh a choice that is not real, so the assessor works from the actual options on the table rather than a hypothetical one.
An unwise decision is not the same as lacking capacity
A person is entitled to choose to live somewhere others consider unsuitable, and to accept risk in doing so. The issue is whether the person can make the relevant decision, not whether professionals or relatives agree with it.
Common situations
When you may need a residence capacity assessment
A residence capacity assessment is usually needed where there is a decision to be made about where a person should live, and there is doubt about whether they can make that decision for themselves. This commonly arises around hospital discharge, a proposed move to a care home or supported living, or a wish to return home against professional advice.
It is frequently required where a family, local authority, hospital or the Court of Protection needs formal evidence, particularly where there is disagreement about the right placement, or where the person is expressing a clear wish that others are unsure they can fully weigh. These situations are often sensitive and time-pressured, so a clear, independent, decision-specific assessment helps everyone focus on the right question and the person's best interests.
Hospital discharge
A discharge is being planned and there is disagreement about whether the person can return home.
A move is proposed
A move to residential care, nursing care or supported living is being considered and evidence is needed.
The person wants to go home
The person is clear that they want to return home and professionals consider the risks too high.
Court of Protection proceedings
A welfare application turns on whether the person can decide where they live.
Deprivation of liberty
A placement is being authorised or challenged and residence capacity has to be evidenced properly.
Family disagreement
Relatives disagree with each other, or with the local authority, about where the person should live.
Decision-specific content
What this assessment covers
This assessment addresses the person's capacity to decide where they live. It is decision-specific: the assessor works from the options actually available, not a general impression. In line with the Mental Capacity Act 2005, and following the relevant information for residence decisions identified in LBX v K, L, M [2013] EWHC 3230 (Fam), the assessment considers whether the person can understand, retain, use or weigh that information, and communicate their choice. The information relevant to deciding where to live typically includes:
What the available options actually are, including the type of property, the facilities and whether staff are on hand
Broadly where each option is, and what the surrounding area is like
The difference between staying somewhere for a short time and living there
Who they would be living with or alongside, and what daily life would be like there
How they would see family and friends from each option, and how they would get out and about
How each option would be paid for in broad terms, and what they would have to give up to take it
Where to live is not the same decision as what care to have
The Court of Appeal confirmed in B v A Local Authority [2019] EWCA Civ 913 that residence, care and contact are separate decisions, each with their own relevant information. This assessment covers where the person lives. It touches on the care available at each option only in broad terms, because that is part of understanding the option. Decisions about arranging and directing care are assessed separately.
1
The functional test
A residence capacity assessment applies the Mental Capacity Act 2005 to the specific decision about where the person should live, based on the options that are actually available. The question is whether the person can:
Understand the relevant information about the realistic options for where to live, and the broad differences between them
Retain that information long enough to make the decision
Use or weigh the information, including the support available and the main risks and benefits of each option
Communicate their decision by any means
2
Impairment and causation
The assessment is based on the options that genuinely exist for the person, not abstract choices, and only the information that is truly relevant to the residence decision. Following the courts' approach, residence and care are treated as separate decisions, so a person may have capacity to decide where to live but not how their care is provided, or the other way round. If the person cannot make the decision, the assessor considers whether that is because of an impairment or disturbance of the mind or brain. A person is not treated as lacking capacity simply because others consider their choice unwise.
Framework: Mental Capacity Act 2005 ss 1 to 3 and the Code of Practice; case law on the relevant information for residence decisions and on treating residence and care as distinct decisions. Whether an arrangement amounts to a deprivation of liberty is a separate legal question.
For the framework in full, read our guide: what is capacity to decide where to live.
Legal framework
The legal test for a residence decision
Initial enquiry and triage
Contact us by phone, email or website form. We gather the key details, explain how the assessment works, confirm the residence decision and the options involved, and note any deadline such as a hospital discharge.
Quotation and booking
Once we understand the scope, we provide a clear quotation including VAT and any applicable travel costs, and arrange an appointment as quickly as possible, prioritising time-critical cases.
Assessment appointment
A qualified assessor meets the person where they are, at home, in hospital, in a care setting or by video, and carries out a decision-specific residence capacity assessment based on the real options available.
Report preparation and peer review
The findings are written up clearly, keeping residence distinct from care, and reviewed by a second qualified professional for quality and consistency.
Secure delivery
Your completed report is returned securely, usually within your stated turnaround period, with reasonable minor amendments or clarification available after delivery.
What happens next
Our residence capacity assessment process
Supported decision-making
How we support decision-making
The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:
Plain language and real examples
Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.
The right time and place
Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.
A familiar person nearby
A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.
Communication adjustments
More time, information broken into stages, and written notes or aids where they help the person express a view.
Evidence base
Evidence we review
With consent, the assessor grounds the assessment in the person's real circumstances. For a residence capacity assessment this typically means reviewing:
Medical records
GP summaries, hospital letters and any information about diagnosis or treatment that bears on decision-making.
The options on the table
Details of each placement or property actually available, so the person is asked about real choices rather than hypothetical ones.
Social care records
Care Act assessments, discharge plans, best interests records and any placement history.
Previous assessments
Earlier capacity assessments, cognitive testing or social care assessments, where these exist.
Care and support records
Care plans and daily notes that describe how the person manages at home or in their current setting.
Accounts from people who know the person
Observations from family, friends and professionals about how the person copes where they are now.
Deliverable
What the assessor evaluates
A well-reasoned residence assessment explains how the conclusion has been reached, tied to the actual options available and kept distinct from the separate question of care.
The specific residence decision and the realistic options actually available
The relevant information the person needs to understand for the residence decision
Whether they were given that information in a way they can understand
Whether they understand the broad differences between the options and the support available
Whether they can retain the information and use or weigh the main risks and benefits
Whether they can communicate a decision by any means
Whether any inability is because of an impairment or disturbance of the mind or brain
How the residence decision has been kept distinct from the separate question of care
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Most residence capacity questions | |
Enhanced Assessment (EMCA) | Contested, high-value or high-risk matters | |
Court-specific instruction | Court of Protection or other proceedings |
Who we work with
For solicitors, deputies and other professionals
Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:
Scope confirmed in writing
The decisions to be assessed, the fee and the timescale are confirmed in writing before instruction.
A traceable evidential line
Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.
Peer review as standard
A second qualified professional reviews every report before it leaves the practice.
Follow-up clarification
Clarification for instructing parties is included after the report is delivered.
Standard Assessment
£600 + VAT
- Decision-specific assessment of the actual residence options
- Completed in line with the Mental Capacity Act 2005
- Residence kept distinct from care
- Court-ready report for families, local authorities and the Court of Protection
For most residence decisions where the options are clear and undisputed.
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Enhanced Assessment
£3,500 + VAT
- Extended, multi-layered assessment
- Fuller consideration of wider welfare and risk issues
- Broader evidential framework for contested placements
- Robust reporting where the decision is disputed or before the Court of Protection
For complex or contested cases, or where wider welfare or liberty issues arise.
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Transparent pricing
Standard or Enhanced, which does your case need?
A standard assessment is right for most residence decisions where the options are clear and there is no significant dispute. Where the case is complex or contested, or where there are wider welfare or deprivation of liberty issues, an enhanced assessment provides a deeper, more defensible evidential foundation.
For families
A clear fee, stated before instruction and confirmed in writing, with VAT and any travel set out up front. The assessment is arranged around the person, at home, in a care setting, in hospital or remotely, and your report is delivered within 5 working days of the assessment visit, in a form local authorities, ICBs and the Court of Protection can rely on.
For professionals
A permanent, employed multidisciplinary team, not an ad hoc associate or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional and structured for scrutiny, with reports relied on in the Court of Protection, the Family Court and the Court of Appeal.
Provider evidence
Why choose Nellie Supports for your mental capacity assessment
England and Wales' largest identified specialist private social work and mental capacity assessment practice, with over 11,000 formal assessments and reports completed by a permanent full-time multidisciplinary team.
Why families, solicitors and local authorities choose Nellie Supports
Options-based, not abstract
We assess the realistic options that actually exist for the person, using only the information genuinely relevant to the residence decision.
Residence and care kept separate
Following the courts' approach, we treat residence and care as distinct decisions, so the evidence is precise about what has and has not been assessed.
Person-centred and supportive
Residence decisions are sensitive and often follow a hospital admission or crisis, so the assessment is calm and supportive while remaining evidentially robust.
Built for the Court of Protection
Reports structured for care placement disputes, hospital discharge and Court of Protection welfare matters.
Alert to restrictions and liberty
Where a placement may involve restrictions or a deprivation of liberty, we flag that as a separate legal question rather than blurring it into capacity.
Employed, not outsourced
A permanent full-time team, peer reviewing every report, not an ad hoc panel of associates.
The situation
Following a hospital admission, there was disagreement about where an older woman with dementia should live. The hospital and her family felt she needed to move to a care home, but she was clear she wanted to return to her own home. Her solicitor instructed Nellie Supports to assess whether she had capacity to decide where to live.
The assessment
We met her in a calm setting and focused on the actual options available to her: returning home with a package of care, or moving to a care home. We gave her the relevant information about each, the support available, and the main risks and benefits, and we assessed only the residence decision, keeping it separate from the question of her care.
The outcome
With that support, the assessment concluded she could understand and weigh the realistic options and had capacity to decide where to live, and that she wished to return home. The report set out the reasoning clearly and separately from the care question, giving the family, the local authority and the court a clear, independent basis for planning the next step.
This is an illustrative example, drawn from the common features of the residence capacity cases we assess. It does not describe any individual client.
How this works in practice
Frequently asked questions
Common residence capacity questions
Is capacity to decide where to live the same as capacity to make care decisions?
No. The courts treat residence and care as separate decisions. A person may have capacity to decide where they live but not how their care is provided, or the other way round. Each must be assessed separately, and our reports are clear about which decision has been assessed.
What information does someone need to understand to decide where to live?
They need to understand the realistic options available, such as their own home with support or a care home, the broad differences between them, the support that would be available, and the main advantages, risks and consequences of each. The assessment focuses on this relevant information, not every detail.
Does the person have to choose the safest option to have capacity?
No. A person is entitled to make what others consider an unwise decision, including choosing a less safe option, and that does not mean they lack capacity. The question is whether they can understand, retain, use or weigh the relevant information and communicate a decision, not whether they choose what others would prefer.
Can you assess residence capacity in hospital or a care home?
Yes. We assess wherever the person is, including at home, in hospital or in a care setting, or by video where appropriate. Where a hospital discharge is being planned, timing can be important, and we work to fit the decisions that need to be made.
What happens if the person lacks capacity to decide where to live?
If the person lacks capacity, a best interests decision is made on their behalf, taking account of their wishes, feelings, beliefs and values. Where there is disagreement, or where a move may involve a deprivation of liberty, the matter may need to go to the Court of Protection, and our report provides the capacity evidence for that process.
Is a deprivation of liberty the same as lacking residence capacity?
No. Whether an arrangement amounts to a deprivation of liberty is a separate legal question from whether the person can decide where to live. A person may lack residence capacity without being deprived of their liberty, and the two issues must be kept distinct, which our reports are careful to do.
What if the assessment does not reach the conclusion we hoped for?
Our assessments are independent, and that independence is what gives the report its value. We do not begin from a preferred answer. We assess the specific decision on its merits and record the reasoning, whatever the conclusion. A report that only ever confirmed what was hoped for would carry no weight with a solicitor, the Court of Protection or anyone else relying on it.
Where do you cover?
Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £40 per hour and confirmed before booking.
Who will carry out the assessment?
A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.
What is capacity to decide where to live?
The decision, the test and the relevant information
Relevant information for residence capacity
What the person needs to understand and weigh
Residence capacity versus care capacity
Why the two decisions are assessed separately
Risk, restrictions and deprivation of liberty in residence decisions
Keeping liberty distinct from capacity
Evidence needed for a residence capacity report
What strengthens the assessment and the report
Supporting guidance
Residence capacity guides
COP3 mental capacity assessment
For Court of Protection deputyship applications.
Capacity to Manage Finances
Independent, decision-specific assessment of capacity to manage money, property and financial affairs.
Other assessment types
Discuss the instruction
Book a residence capacity assessment
Tell us about the person, the options being considered and the deadline, for example a hospital discharge, and we will confirm whether a standard or enhanced assessment is right, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.