Derby City Council v SM

This judgment was delivered in draft on 21^st August and formally handed down on 3^rd September 2026.

It concerns SM, an adult female, who was born in 1997 and has diagnoses of severe learning disability, catatonia, major depression and autism. She is currently residing in a supported living placement (a single occupancy bungalow) with a package of care provided by a local service. The arrangements for SM’s residence and care are commissioned by the Applicant, Derby City Council (‘the Local Authority’).

These proceedings continue under Section 16 of the Mental Capacity Act (‘MCA’) 2005 in relation to her personal welfare. The Court made declarations in respect of her capacity under Section 15 of the MCA 2005 in 2022 about a range of issues. She was, by the final hearing, then residing at her current home. Her Mother had been unable to manage her care, and other living arrangements had not proved suitable or sustainable.

Shehas throughout expressed a wish to move elsewhere but, despite extensive placement searches, no alternative option has been identified at this time. In the circumstances, there is no best interests decision for the Court to make and the parties agree that the proceedings should now conclude.

However, an outstanding issue is whether SM is deprived of her liberty within the meaning of Article 5 ECHR, following the judgment of the Supreme Court in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘AGNI’).

The local authority does not believe she is deprived of her liberty and in a detailed position statement has explained why. They have agreed she will have a Care Act advocate going forward.

The ALR is of the view that SM is deprived of her liberty. This would mean the following consequences:

SM was described carefully by her social worker in his first statement at pdf 241 in the bundle I have read. She can be aggressive to herself others and her environment, and needs support to ensure she eats, toilets, bathes and is clothed and takes part in all social activities. “She can be friendly and engaging and will take part in meetings about her” I was told and I was able to meet her myself by video. He said she needs people who know her to communicate well as her presentation can be very varied and she prefers clear arrangements. Her understanding means language used needs to be carefully explained. She continues to have considerable support from workers at the home, social work, a community nurse, medical care.

At times her behaviour can be very challenging and she and others are at risk as a result. This has included causing flooding, breaking items, attempting to damage cars when out and moving in front of traffic. She has self-harmed and tried to harm others. Skilled staff are needed to distract her and ensure she becomes calmer and responsive.

She is vulnerable to suggestions from others and her social media use has to be supervised; she will talk about sexual matters to staff and strangers and will call emergency services repeatedly when upset. When proceedings began she was saying she wanted to leave. If she met someone she would want to move near them she said. Social services noted how her damaging furniture would put many potential landlords off and has put off one potential housing provider. I note her behaviour requires skilled staff support.

In 2023 she told her ALR that she wanted to move to a residential place, which she noted had not worked for her before. “She wanted to live somewhere with stairs”. She was asked if she would stay if a housemate was found for her and she said no. In notes she wrote she said she wanted to have a housemate and to move and other things- she didn’t want to live here, “don’t like the area”.

The care provider continued to look if there was another suitable home for her. For a variety of sensible reasons none was available.

Later that year she spoke to her ALR and discussed wanting to live with people and also, “I would like a two-bed house with swimming pool”, and “I want a new house with an upstairs”.

What is very obvious from the statements I have read is that her views and opinions can be forcefully expressed but very changeable. She may express a view about wanting something e.g. a vape but has never mentioned it to staff who would have been able to satisfy her wishes.

Social services felt her sharing housing with others was to be difficult due to the risk to others and when a potential move in 2023 to associated accommodation where others lived was discussed, the landlord was unwilling to undertake the risks or consider it practical. A potential place was identified and she visited. The person there needed time to leave and this caused a long delay in proceedings. In the end this wasn’t feasible. In the meantime, in 2024, SM’s mother had expressed the view that SM would never be fully satisfied with where she lived and had previously not enjoyed sharing accommodation with others. The occupier of the proposed property did not move as planned, and in any event improvements and assessments were needed.

More delay ensued. SM told her ALR she didn’t like it where she was, “it’s annoying” “it’s too noisy here” “I hate it” and “I will be happy there”.

We move on into the summer of 2025 when a meeting determined that a hostile environment at the proposed new accommodation, and its limited size, would not be good for her. SM had taken this news calmly and she expressed enthusiasm about plans discussed with her including a new bed and decorating her environment. No search had been resumed at this time but by the end of the year began again.

Her ALR has continued to visit and SM’s wishes have varied, though saying she doesn’t like it where she is remains a theme, for varying reasons. She has expressed dislike of 2:1 support although staff report she requests this when out. Social workers reported a positive response to improvements which “have given her a renewed sense of pride and ownership of her home”.

By January 2026, 4 offers of accommodation were deemed unsuitable. The local authority were then clear her current home offered her a high standard of care with trusted relationships and staff had shown they could meet SM’s complex needs.

They were also clear there were real and significant risks of SM living with another person as she had expressed a wish to do.

When I met with her she told me she wanted a change.

My conclusions about the information I have been given directly and indirectly is that SM’s views change very regularly about what she would like and her reasoning is limited. Although she has used the words hate in writing in fact she is expressing dissatisfaction and a wish for change; not surprising for a young woman. It is not my view she is feeling “contained” in the home she lives in now from what she has told me and I have read.

She has 2:1 support and has continued to seek it when going out even at a time when it was not considered necessary. This is support rather than direction. Staff do prevent trouble: examples are accidental fires/ potential flooding, but they have not recorded use of restraint. While SM complains about staff telling her she should go to sleep this is something her mother would do and given her functioning I would identify this as ordinary care. I am told she can be aggressive to staff, herself and the environment and intentionally damages things. This is managed not by restraint but distraction and calming behaviour which I consider skilled work.

Her expression “I hate it” in my assessment is part of her expressing preferences about different places since it is clear at times she is contented enough where she is living. I do not view the availability of staff to support her as being restrictive of her freedom and activities, in fact they can make them possible.

The parties have agreed a helpful and concise summary of the law post-AGNI.

At para 53 (i) of AGNI the court said, (i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question.

At para 53(ii) of AGNI the court said,

“(ii)

In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.”

In para 53 (iii)of AGNI the court said

“although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant’s specific situation, there is an overlap. The requirement to take account of the ‘type’ and ‘effects and manner of implementation’ of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell”.

And in (iv)

“the effect of restrictions on an individual including their compliance and the lack of objection is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment”.

Correctly they say assessing whether there is a deprivation of liberty is no easy task in some contexts – “the approach should be practical and realistic”.

Three elements need to be present to be a deprivation of liberty. The first is objective: the person must be confined in a restricted space for a significant period. I need to consider the degree and intensity to consider if SM is restricted or deprived of her liberty, and the restrictions cumulatively, and look at her specific situation. That is why I have given such detail of this above.

The concrete situation for SM, in my assessment, is that she has a high level of support that ensures that she is fed, hygienic and safe and able to engage in her interests including visiting her mother, going shopping etc. This skilled support manages dysregulated behaviour by calming and distraction.

To consider if she is deprived of her liberty I must consider: can she leave if she wishes to, are her movements controlled and how isolated she is. Is there something in her experience that is similar to imprisonment or containment perhaps better described? She has never chosen to leave or refused to return when out. While doors are locked that is ordinary for many homes - I do not regard that as locking her in.

If she lived at home with her mother, who could not manage this now, she would have the same living situation; encouragement about sleeping and eating, help and advice, calming etc. More professionals achieve that now but do so in an environment that is her home. I do not accept her views do show her arrangements are “imposing a major intrusion on her life” as her ALR argues, and “she is not getting to live her life how or where she would choose”. Wanting to move somewhere else is a commonly felt experience and not in my assessment as a result of her living arrangements, which her mother has said do not suit her whatever they are and the evidence of her sharing accommodation in the past would confirm that.

She does comply with directions. She appears to be content enough with the arrangements for her day to day, but subject to occasionally saying she hates it and effectively would prefer one of a variety of other living arrangements. Many people would, so she is not unique. They are not deprived of liberty because of lack of choice or opportunity.

She is able to do activities that she chooses, save for advice and prevention about unsafe relationships over media or elsewhere. Again, that I consider support rather than containment. I agree she has a notable degree of autonomy that includes her choosing the furnishings of her home.

Objectively, I conclude she is not deprived of her liberty.

The ALR and Local Authority agree that SM is not providing valid consent. SM has informed her legal representatives, and myself during a judicial visit, that she does not want to remain in the current placement, that she only wants 1:1 support when going out, that she would like to live with other people and that she does not want to be ‘in care’. She has of course also wanted a cat, a dog, a friend to live with, stairs, a swimming pool etc. Her inability to give a reason to move somewhere else is in my view not an expression of permanent preference since the variety of elsewhere she mentions is so variable and this is in response to direct questions about it. Overall, however, both the local authority and ALR accept she is/has not given valid consent and I accept that subjectively there is no evidence she has.

The ALR considers that the Local Authority has fallen into error in two ways. First, because, despite acknowledging that the two elements overlap, it has looked at the objective element in isolation. It is right that the care package is in place for SM’s own safety and wellbeing, that she has some autonomy with her social interactions, that she accesses the community and that she has links to her family. However, the analysis must not stop there the ALR argues. The effects and manner of implementation are key to determining whether there is confinement and will differ according to whether the person objects to their living arrangements or not. The ALR argues the reality is that SM experiences the arrangements for her residence and care as imposing a major intrusion in her life. That is not the objective conclusion I share.

The arrangements do not accord with SM’s wishes as she would like to live in an (unavailable) different place but in reality it would appear she welcomes the support she has.

The ALR argued the starting point is that SM’s views are decisive: they can transform the arrangements for her residence and care into a deprivation of liberty, even if the same conclusion might not be reached for someone in the exact same situation. I cannot accept that is the law or reality since it suggests wishes can change the real lived experience into something different. Looking at the whole situation I note her views as expressed from time to time but also her experience of life of what I conclude is her home rather than a place of confinement in my assessment.