Court of Appeal finds council was required to carry out mental capacity assessment ahead of completing Care Act assessment

Lord Justice Baker said his conclusions might increase social services departments' costs but would lead to better resource use in the long term.

Baker LJ said the principal issue arising in the case brought by TDB through his litigation friend NP, was whether Haringey was required to carry out an assessment of his capacity under the Mental Capacity Act 2005 prior to completing the Care Act assessment.

T is now aged 25 and “is a young man with a very troubling history and a range of complex needs”, the court heard, including several mental and developmental impairments and personality disorder.

There have been instances of aggressive and sometimes sexually inappropriate behaviour and he has been arrested for various offences including serious sexual ones.

Baker LJ said there was a long-running issue as to whether T has a learning disability. When he became 18 the question arose of whether he was eligible for support from the Haringey Learning Disability Partnership  but it was concluded he was not.

After a series of disputes about this Haringey told T’s parents clinicians felt alternative provisions would be better.

In 2025, T’s solicitor sent Haringey a letter under the Pre-Action Protocol, raising potential grounds for judicial review.

These were that the assessment was unlawfully conducted without the requisite skills, knowledge, and competence; it arrived at irrational and/or unreasonable conclusions in relation to learning disability and primary support; Haringey was unlawfully fettering its discretion by continuing to apply an inflexible policy and/or criteria. Judicial review proceedings were then issued

Three months later, at the instigation of T’s parents, proceedings were issued in the Court of Protection, where Senior Judge Hilder made an interim declaration under s.48 of the MCA that T lacked capacity to conduct proceedings and make decisions about his residence and care.

Baker LJ said the grounds before him were that HHJ Bird erred in the Administrative Court by finding that an assessment of T’s mental capacity was not required prior to completion of his needs assessment pursuant to the Care Act.

It was argued for T that a capacity assessment was required by the Care Act Statutory Guidance and the Mental Capacity Act Code of Practice, where there was reason for concern about capacity in material respects.

Ground 2 was that HHJ Bird erred by finding that specialist input was not required, as the 2014 Regulations and associated statutory guidance required this in T’s circumstances.

Baker LJ said: “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.

“This is clear from the provisions of the Act itself as well as the guidance issued thereunder. 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.”

He said the assessment of capacity must be carried out in accordance with the principles in s.1 of the Mental Capacity Act MCA and in compliance with the Code of Practice.

Baker LJ noted it was “puzzling why this this point has not arisen for consideration before in the nineteen years since the MCA was brought into force”.

He said it was possible his judgment “may impose an additional layer of work on local authorities, and some extra costs”, but said the purpose of assessing capacity was 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.”

He also accepted the second ground that there is a mandatory obligation to ensure that the assessment is carried out by someone with the relevant skills, knowledge and competence

HHJ Bird “failed to address T’s specific conditions and needs and the specific specialist input which it was argued was required”, Baker LJ said.

He said: “I accept that this court must be slow to interfere with a judge’s assessment of the evidence. In my view, however, his conclusion is not sustainable having regard to the evidence before him,”

Baker LJ allowed the appeal and quashed the Care Act assessment but made no order directing Haringey to carry out a fresh Care Act assessment as this was now a matter for the Court of Protection.

Lady Justice May and Lord Justice Bean both agreed.

Mark Smulian