TDB v London Borough of Haringey: Court of Appeal rules capacity assessments must precede Care Act reviews

The Court of Appeal has ruled that local authorities must carry out an assessment of a person's mental capacity under the Mental Capacity Act 2005 before completing a needs assessment under the Care Act 2014, wherever there is reason to doubt that person's capacity in a relevant respect. The judgement, given by Lord Justice Baker with Lord Justice Bean and Lady Justice May agreeing, is understood to be the first time the courts have addressed this question of principle since the 2005 Act came into force nineteen years ago.

The appeal concerned a young man, referred to as T, with a complex history of autism, ADHD and disputed learning disability, who has required extensive support from London Borough of Haringey since childhood. A long-running question over whether T met the threshold for support from the local authority's specialist learning disability service formed the backdrop to a Care Act needs assessment completed in December 2024, which T challenged by judicial review on the grounds that it had been carried out without the requisite expertise and without any assessment of his capacity, despite the local authority's own records acknowledging that he lacked capacity to understand relationships and their boundaries. Mind, the mental health charity, was given permission to intervene, citing wider evidence of inconsistent capacity assessment practice across the care sector.

At first instance, HHJ Bird dismissed the claim, finding the local authority entitled to proceed without a capacity assessment given the presumption of capacity in section 1(2) of the Mental Capacity Act and the absence, in his view, of any specific trigger for concern. The Court of Appeal disagreed. Lord Justice Baker held that understanding a person's capacity is integral to the statutory concept of well-being underpinning the Care Act, and that numerous provisions of the Act and its accompanying regulations, including the duty to involve appropriate persons in an assessment and the qualified right to refuse one, are themselves contingent on an accurate understanding of the individual's capacity. Read together with the statutory guidance and the Mental Capacity Act Code of Practice, the court concluded the obligation to assess capacity arises on a relatively low threshold, namely a reason to doubt capacity, and cannot be avoided by invoking the presumption of capacity itself, since that presumption operates only once capacity has been properly considered rather than as a substitute for considering it.

On the facts, the court found T's own placement records described him as lacking capacity in relation to relationships, a matter directly relevant to needs the assessment was meant to capture, and that this alone was sufficient to trigger the duty. The court rejected the local authority's argument that section 67 of the Care Act, which governs advocacy and involvement, could substitute for a capacity assessment, noting the two provisions serve entirely different purposes.

The court also allowed a second ground of appeal, holding that regulation 5 of the Care and Support (Assessment) Regulations 2014 imposes a mandatory, not merely aspirational, duty to ensure assessors possess the relevant skills and to consult specialist expertise where an individual's needs require it. Given the complexity of T's presentation, the court found the failure to obtain psychiatric or psychological input before completing the assessment was irrational.

The Care Act assessment of December 2024 was quashed. The court declined to direct a fresh assessment, noting that related proceedings concerning T's welfare are ongoing in the Court of Protection, where questions of his capacity and best interests are already being determined.