End of Cheshire West ‘Acid Test’ for Court of Protection Property Applications
Posted on in Court of Protection
On 2 June 2026, the Supreme Court handed down a landmark judgement overturning the long-established legal test for determining whether a person is deprived of their liberty.
For over a decade, the decision in Cheshire West has shaped how deprivation of liberty has been assessed. While the recent judgement is primarily concerned with a person’s care arrangements and their rights under Article 5 of the European Convention on Human Rights, it may also have wider practical implications for families making Court of Protection applications.
One area where this may become particularly significant is where a deputy needs authority to sell a property belonging to someone who lacks capacity.
Although it is too early to know exactly how the Court of Protection will approach these applications following the judgement, the decision raises important questions about the evidence that may now be required.
What was the Cheshire West 'acid test'?
The Supreme Court’s decision in Cheshire West in 2014 introduced what became known as the 'acid test'.
A person was considered deprived of their liberty if they were under continuous supervision and control; and not free to leave. In practice, the test commonly applied to people living in care homes and other care settings. Importantly, it did not matter whether the person appeared happy, was receiving excellent care or lacked the ability to consent. If the acid test was met, a Deprivation of Liberty Safeguards (DoLS) authorisation was generally required.
The decision resulted in a significant increase in DoLS applications across England and Wales, with many local authorities experiencing substantial delays due to demand.
How has the Supreme Court changed the Cheshire West test?
The Supreme Court has now overturned the Cheshire West approach, finding that the previous interpretation of deprivation of liberty was too broad.
Rather than relying solely on the acid test, the Court has indicated that a wider assessment of the individual’s circumstances should now be undertaken.
Whilst the long-term practical impact remains to be seen, it is anticipated that fewer people will require DoLS authorisations than under the previous legal framework.
For many people, this may seem like a welcome change. However, for families dealing with Court of Protection applications, it may create new uncertainties.
How does this affect deputyship applications?
Whilst the Supreme Court’s judgement focuses on deprivation of liberty, it may also have wider practical implications for families applying to the Court of Protection to manage the affairs of someone who lacks capacity.
One of the most common misconceptions we encounter is that being someone’s spouse or next of kin automatically gives legal authority to deal with their finances or property. In reality, this is not the case. Unless a valid Lasting Power of Attorney is already in place, an application to the Court of Protection is usually required before anyone can lawfully manage a person’s property and financial affairs.
Many families are also surprised to learn that being appointed as a deputy does not necessarily mean they can immediately sell the person’s home.
Where authority to sell a property is required, this needs to be specifically requested within the deputyship application. The Court expects evidence demonstrating that selling the property is in the person’s best interests. If sufficient evidence is not provided, it is common for the Court to appoint the deputy but withhold authority to sell the person’s property and issue a Directions Order requesting further information in relation to the property sale.
This can result in additional applications, further evidence being filed, and delays before authority to sell is ultimately granted. Where the sale of the property is intended to fund ongoing care, these delays can create additional financial and practical pressures for families.
Whilst every case will depend on its own facts, many families are understandably surprised by the legal and procedural complexities involved. What initially appears to be a straightforward application can quickly become a much longer process, particularly where property needs to be sold to fund ongoing care.
Why has DoLS been important in these applications?
Whilst DoLS authorisations are primarily intended to safeguard the rights of people who lack capacity, they have also become an important piece of evidence in many deputyship applications involving property sales.
A DoLS authorisation has often helped demonstrate that the person is living permanently in residential care, they are unlikely to return to their home, and selling the property is likely to be in their best interests.
The recent Supreme Court judgement has answered one legal question, but in doing so it has created another. If DoLS authorisations are no longer required in some cases, what evidence will the Court of Protection expect when deciding whether a deputy should be authorised to sell a person’s home?
At present, there is no definitive answer. The Court of Protection has yet to indicate what evidence it will consider sufficient where a DoLS authorisation is no longer available to support an application for authority to sell a property.
Until further guidance or decisions emerge, practitioners may need to consider what alternative evidence best demonstrates that the person is living permanently in residential care, is unlikely to return home and that a proposed sale is in their best interests. As applications begin to be considered under the new legal framework, the Court of Protection’s approach is likely to develop over time.
Looking ahead
The Supreme Court’s decision marks one of the most significant developments in deprivation of liberty law for over a decade.
Whilst the precise impact on Court of Protection property applications remains uncertain, it is likely that practitioners and the Court alike will need to adapt as new guidance and decisions emerge.
For families already facing the emotional and practical challenges of supporting a loved one who has lost capacity, understanding these legal complexities can be daunting.
Although the full impact of the Supreme Court’s decision will only become clear as further cases are decided, one thing has not changed: deputyship applications involving property remain legally and procedurally complex. Seeking specialist advice at an early stage can help ensure that the right applications are made, the appropriate evidence is obtained, and unnecessary delays are avoided.
How Tozers can help
Deputyship applications involving property can become more complex than many people initially expect. Many people understandably assume that applying for deputyship simply involves completing a form and ticking the box requesting permission to sell a property. In reality, the legal process is often considerably more involved.
Every family’s circumstances are different, and the most appropriate Court application will depend on factors such as the person’s care arrangements, the ownership of the property and whether authority to sell is required.
Our Court of Protection team regularly advises families on deputyship applications involving property and understands the practical and legal complexities that different circumstances can create. We can help identify the correct application from the outset, prepare the evidence the Court is likely to require and deal with any further directions issued by the Court.
We also work closely with local authorities, care providers and other professionals throughout the process, helping families understand what is happening and reducing unnecessary delays wherever possible.