Derby City Council v SM [2026] EWCOP 46 (T2)
Judge: HHJ Sue Williscroft
Date: 03 September 2026
Background
This Court of Protection decision is one of of the first reported cases to consider the impact of the Supreme Court’s landmark judgment in A Reference by the Attorney General for Northern Ireland (AGNI) [2026] UKSC 16 on the concept of deprivation of liberty.
SM was a 29-year-old woman with severe learning disability, autism, catatonia and major depression. She lived in a supported living bungalow with a substantial package of care commissioned by Derby City Council. Although she had expressed a wish to move elsewhere, extensive searches had failed to identify a suitable alternative placement. The parties agreed that there was no outstanding welfare decision requiring determination by the court. The sole remaining issue was whether SM’s care arrangements amounted to a deprivation of liberty for the purposes of Article 5 ECHR in light of the Supreme Court’s recent decision in AGNI.
SM’s Accredited Legal Representative (ALR) contended that the arrangements amounted to a deprivation of liberty requiring ongoing authorisation and review. The local authority disagreed. The evidence demonstrated that SM required significant support with daily living. She could present risks to herself and others through challenging behaviour, including self-harm, damaging property and placing herself in dangerous situations. However, staff managed these risks primarily through distraction, reassurance and skilled support rather than restraint.
All agreed that SM was not providing valid consent to her care arrangements.
Decision
HHJ Williscroft concluded that SM was not deprived of her liberty. The Judge carefully reviewed the guidance provided by the Supreme Court in AGNI, emphasising that the assessment is multifactorial and required consideration of the individual’s specific circumstances, including the type, duration, effect and manner of implementation of the arrangements in question.
Applying those principles, the judge found that SM’s care package was primarily supportive rather than restrictive. The judge attached significance to the fact that SM regularly accessed the community, visited family and engaged in activities of her choosing. SM had never chosen to leave or refused to return home after outings. Staff primarily relied upon reassurance, redirection and de-escalation rather than physical intervention. While the external doors were locked, this was considered no different from many ordinary domestic settings and did not, of itself, demonstrate confinement
While SM consistently expressed a desire to live somewhere else, the Judge found that her wishes were highly variable and often focused on a range of different and sometimes unrealistic alternatives. The Court concluded that dissatisfaction with one’s living arrangements or a desire for change did not in themselves amount to a deprivation of liberty.
Comment
This judgment provides an early illustration of how the Court of Protection is applying the Supreme Court’s decision in AGNI.
The Judge rejected the argument that a person’s objections to their living arrangements are, of themselves, decisive. Instead, the Court focused on SM’s “real lived experience” and concluded that her placement functioned as her home rather than a place of confinement.
The decision demonstrates that, following AGNI, the court will place greater emphasis on the practical realities of an individual’s day-to-day life and on whether care arrangements are genuinely supportive rather than restrictive. Even where extensive supervision is required and a person would prefer to live elsewhere, that will not necessarily result in a finding that they are deprived of their liberty.
For local authorities, care providers and social care practitioners, SM is an early example of the Court adopting the broader evaluative approach endorsed by the Supreme Court in AGNI and reaching the conclusion that intensive supported living arrangements can fall outside the scope of Article 5 where, viewed holistically, they amount to care and support rather than confinement.
The full judgment can be found here:
