In TDB v London Borough of Haringey [2026] EWCA Civ 1168, the Court of Appeal has clarified the role that capacity plays in the context of the conduct of Care Act 2014 assessments. The observations of Lord Justice Baker, giving the sole reasoned judgment of the court, are equally of relevance for other situations in which professionals are discharging functions where a person’s decision-making capacity might be relevant.
At paragraph of the first instance judgment, HHJ Bird had held in relation to the appellant, T, that:
He is entitled to the important presumption of capacity. I have seen nothing to suggest that there was any cause for concern about the Claimant’s capacity to make a specific decision after appropriate support has been offered. The Defendant was therefore in my judgment entitled to proceed without a capacity assessment.
The Court of Appeal allowed the appeal brought on T’s behalf. At the ‘macro’ level, Lord Justice Baker held as follows:
91. […] I accept the submissions of the appellant, supported by Mind as intervenor. I conclude that, whenever there is a reason to doubt the capacity of a person whose needs for care and support are being assessed under the Care Act, a capacity assessment under the MCA must be carried out by an appropriately qualified professional before the Care Act assessment of needs is completed.
He explained his reasoning as follows:
92. This is clear from the provisions of the Act itself as well as the guidance issued thereunder.
93. First, understanding a person’s capacity is integral to the evaluation of their well-being. The definition of “well-being” in s1(2) includes a number of factors which are affected by an individual’s capacity. For example, when considering, under paragraph (d), the “control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)”, it will clearly be necessary to consider whether the individual has the capacity to make decisions about those matters. The same applies when considering, under paragraph (e), the individual’s “participation in work, education, training or recreation” or, under (g), their personal relationships.
93. Secondly, in order to carry out its functions relating to an individual’s well-being under the Care Act, a local authority must, under s.1(3), have regard to, inter alia, the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being; the individual’s views, wishes, feelings and beliefs; all the individual’s circumstances, not only factors which might lead others to make unjustified assumptions about the individual’s well-being; the importance of the individual participating as fully as possible in decisions being provided with the information and support necessary to enable them to participate; and the need to ensure that any restriction on the individual’s rights or freedom of action is kept to the minimum. In assessing these issues, a local authority must have a clear understanding of the individual’s capacity to make decisions in the various domains in which his well-being is under consideration.
94. Thirdly, there are specific refences to capacity in the provisions in the Care Act about assessments and the preparation of care and support plans. Under s.9(5)(c), the persons who a local authority must involve in an assessment include, where the adult lacks capacity to ask the authority to involve someone, any person who appears to the authority to be interested in the adult’s welfare. The same obligation arises under s.25(3) when the local authority is preparing a care and support plan following an assessment. A local authority’s obligation under s.11 to respect an adult’s refusal of a needs assessment is contingent upon the adult having capacity to decide to refuse it. Where the individual lacks capacity to make such a decision, the local authority must carry out the needs assessment if it concludes that an assessment is in his best interests. In order to comply with these provisions, a local authority must, again, have a clear understanding of the individual’s capacity.
95. Fourth, the requirements imposed by the 2014 Regulations on a local authority carrying out an assessment are also contingent upon the capacity of the individual adult, in particular the requirement to carry out the assessment in a manner which ensures that the individual is able to participate in the process as effectively as possible, to have regard to the wishes and preferences of the individual, and to provide information to the individual in a format which is accessible to the individual to whom it is given.
96. Fifth, the provisions in the Act and regulations are reinforced by the [Care Act statutory] Guidance, in particular the express words of paragraphs 6.32 and 10.63. Although there was some criticism at the Bar about some of the language in these paragraphs of the Guidance, the core message is clear – when there is a concern about a person’s capacity to make a specific decision, then an assessment of capacity should be carried out under the MCA.
In conclusion:
98. The effect of these provisions is to require local authorities and their social workers carrying out Care Act assessments to comply with the MCA and its Code of Practice. The assessment of capacity must be carried out in accordance with the principles in s.1 of the MCA and the provisions of ss 2 and 3. There must also be compliance with the Code of Practice, in particular paragraphs 4.34, 4.35, 4.38 and 4.42.
Whilst Baker LJ considered (at paragraph 99) that “the interpretation of the statutory provisions is clear,” he noted that the “evidence put before the court [by Mind] about the deficiencies in practice is concerning,” continuing that:
There is, of course a risk that this judgment may impose an additional layer of work on local authorities, and some extra costs. But the purpose of assessing capacity is to improve the chances of arriving at a more accurate assessment of the individual’s needs. That can only be to the benefit of the individual and in due course should lead to a more efficient and effective use of the local authority’s resources.
Baker LJ also made three wider observations about capacity:
105. There are three further points about capacity to be made arising out of the submissions made to us. First, I endorse the observation that the presumption of capacity should not be held out as a reason not to assess capacity when it is in doubt. As Swift J observed in Royal Bank of Scotland PLC v AB, supra, “when there is good reason for cause for concern, where there is legitimate doubt as to capacity to litigate, the presumption cannot be used to avoid taking responsibility for assessing and determining capacity.” The presumption of capacity in s.1(2) of the MCA is an important principle when assessing capacity but it is not a reason for deciding not to assess it when capacity is in doubt. Secondly, the principle in s.1(3) that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success is equally important. But again this is not a reason for deciding not to assess capacity when it is in doubt. I therefore agree with Mr Ruck Keene’s submissions that the judge’s approach in paragraph 35 of his judgment was wrong.
106. Thirdly, there is a strong suggestion in this case that the decision not to conduct a capacity assessment may have been influenced by the earlier conclusion that T did not have a learning disability. But the question of an individual’s capacity is not determined by whether their level of cognitive ability places them in the category of “learning disability”. S.2(1) of the MCA refers to “impairment of, or a disturbance in the functioning of, the mind or brain”. It does not refer to disability. Someone who is categorised as having a learning disability may lack capacity to make some decisions but not others. Equally, someone who is not categorised as having a learning disability may lack capacity to make some decisions. I agree with the observation of MacDonald J in North Bristol NHS Trust v R [2023] EWCOP 5 at paragraph 48:
“a formal diagnosis may constitute powerful evidence informing the answer to the second cardinal element of the single test of capacity, namely whether any inability of R to make a decision in relation to the matter in issue is because of an impairment of, or a disturbance, in the functioning of the mind or brain. However, I am satisfied that the court is not precluded from reaching a conclusion on that question in the absence of a formal diagnosis or … in the absence of the court being able to formulate precisely the underlying condition or conditions. The question for the court remains whether, on the evidence available to it, the inability to make a decision in relation to the matter is because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
At paragraph 107, Baker LJ therefore held that, on the facts of the case in question, “an assessment of capacity was clearly required in this case before completion of the Care Act assessment in December 2024 and the judge was wrong to conclude that it was not.”
Baker LJ also allowed the appeal on the basis that, on the particular facts of T’s case, the Care Act 2014 assessment had to be carried out by an assessor with the specific skills required by the mandatory requirements of Regulation 5 of the Care Act regulations, noting at paragraph 109 that “I recognise, of course, the very considerable skill and expertise which a trained social worker, such as the assessor in this case, brings to their work. But in the context of this case, given T’s complex diagnosis and needs, I agree that the local authority ought to have sought the advice of a psychiatrist or psychologist.”
