Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 71
LM v Sussex ICB: Can you have
capacity for residence if you lack
capacity for care?
by Faria Jamali, Associate at Browne Jacobson.
In LM v Sussex Integrated Care Board (ICB) [2025]
EWCOP 50 (T2), the Court of Protection held that
capacity assessments for residence and care were
inextricably linked and could not be arti昀椀cially
separated, 昀椀nding LM lacked capacity in both
domains.
even though the individual may be able to verbally
describe what they should do. Consequently, such an
individual can be misjudged as being more capable
than they are, especially during formal capacity
assessments. FLP is manifested by an individual’s
ability to “talk the talk” but not “walk the walk”.
The Judge disagreed with the evidence of the two
experts and concluded that LM lacked capacity to
make decisions relating to both care and residence,
昀椀nding that these two capacity decisions were
interlinked in this case and could not be separated
when assessing capacity in these domains.
LM had been deemed by the experts to have
capacity to make decisions about residence but not
in relation to care and support arrangements. The
concern with this 昀椀nding was that if LM decided
to live in a property where his care could not be
commissioned, the ICB might not be able to ful昀椀l
their commissioning responsibility to LM.
Around December 2020, LM moved to live at
Placement 1. In December 2024, and in the
context of LM’s desire to move to a less restrictive
environment, the judge approved LM’s move to a
community placement at Placement 2, which was
intended to be a trial for six months. Unfortunately,
LM did not settle at Placement 2 and there were
concerns for his safety. On 4 March 2025, the judge
ordered that it was in LM’s best interests to live
back at Placement 1 until further order and, upon a
deprivation of liberty standard authorisation being
granted, the proceedings were to be reconstituted as
an application under section 21A, i.e. a challenge to
the standard authorisation.
Browne Jacobson acted for the ICB in this complex
capacity case. We can provide advice to ICBs
in relation to court of protection applications,
particularly in cases in which P’s capacity to make
decisions in certain domains is unclear.
LM is in receipt of Continuing Healthcare funding
and the ICB is the responsible commissioner for his
NHS care. The ICB was the respondent to the Court
of Protection proceedings and was represented by
Ian Brownhill from 39 Essex chambers.
Background
Why was there a dispute on residence
and care?
LM is a 27-year-old male who was involved in a road
tra昀케c accident in 2013. As a result, he sustained a
signi昀椀cant brain injury which a昀昀ects most aspects of
daily living.
The central dispute arose from a disagreement
between LM, the ICB (as responsible commissioner
for LM’s NHS Continuing Healthcare funding), and
other parties as to whether LM’s capacity to make
decisions about his residence could be assessed
independently of his acknowledged lack of capacity
to make decisions about his care and support.
The brain injury which LM sustained gives rise to a
frontal lobe paradox (FLP). FLP is the discrepancy
between an individual with frontal lobe damage
performing well on cognitive tests and interviews,
while struggling with everyday life. The frontal lobes
are responsible for executive functions and damage
can impair skills like planning and decision-making,
EXPERT WITNESS JOURNAL
It was agreed by all parties, based on the reports
of the single joint expert Dr Radcli昀昀e and the
assessments of the provider psychiatrist Dr L, that
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AUGUST 2026
