Assess capacity first: the Court of Appeal makes an MCA assessment a precondition of a completed Care Act assessment

Where there is reason to doubt whether an adult can make decisions about his own care, must a council settle that before finishing its assessment of his needs? On 15 September 2026 the Court of Appeal answered yes, calling it “puzzling” that the point had gone undecided for the nineteen years since the Mental Capacity Act 2005 took effect. In R (TDB) v London Borough of Haringey [2026] EWCA Civ 1184, with Mind intervening, the Court allowed the appeal and quashed the assessment.

What the case was about

T, now 25, was adopted at three after suffering severe neglect (para 3). He has several mental and developmental impairments — autism, a speech and language disorder, ADHD and personality disorder — with severe anxiety and difficulties with relationships (para 4). Whether he has a learning disability has been disputed for years; either way he has needed extensive specialist support (para 5). In June 2024 a multi-disciplinary team concluded he was not eligible for Haringey’s learning disability service and that mainstream services could meet his needs (para 11).

After a challenge from his solicitor the council carried out a fresh Care Act assessment, completed on 13 December 2024 — the assessment under challenge (paras 15, 16). The social worker who carried it out confirmed she had not assessed his capacity (para 19). HH Judge Bird dismissed the judicial review on all grounds on 1 August 2025 (para 29); Mind was permitted to intervene in writing in June 2026 (para 37).

What the Court of Appeal decided

Lord Justice Baker gave the judgment; Lady Justice May and Lord Justice Bean, Vice-President of the Civil Division, agreed (paras 112, 113). On ground 1 he held that whenever there is reason to doubt the capacity of a person being assessed under the Care Act, a capacity assessment under the Mental Capacity Act must be carried out by an appropriately qualified professional before the needs assessment is completed (para 91).

That conclusion comes from the statute. Understanding capacity is integral to evaluating well-being: control over day-to-day life, participation in work or education and personal relationships may all require consideration of it (para 93). Authorities and their social workers must therefore comply with the Mental Capacity Act and its Code of Practice, in particular paragraphs 4.34, 4.35, 4.38 and 4.42 (para 98).

Two familiar arguments were closed off. The presumption of capacity matters, but is no reason to decline to assess capacity when it is in doubt; nor is the principle that all practicable steps to support decision-making must first be tried (para 105). Nor is capacity determined by whether someone falls into the category of “learning disability”: section 2(1) speaks of an impairment of, or disturbance in the functioning of, the mind or brain — not of disability (para 106).

There was clear evidence that T lacked capacity in at least one respect identified by his placement provider, expressly cited in the assessment itself (para 100). Without one the council could not judge whether the support it proposed was at the right level (para 101), and the judge was wrong to hold none was required (para 107). Ground 2 also succeeded: regulation 5 of the Care and Support (Assessment) Regulations 2014 mandates that the assessor be competent and, where the authority considers the individual’s needs require it, that someone with relevant expertise be consulted (paras 108–110). Given T’s complex diagnosis the council ought to have sought advice from a psychiatrist or psychologist (para 109); the failure to seek a psychologist’s input was irrational (para 110). The appeal was allowed and the assessment quashed, but no fresh assessment ordered, subject to further submissions, T’s care now being in the Court of Protection (para 111).

Why it matters

• A sequencing rule, not a best-practice suggestion. Doubt about capacity must be resolved before the needs assessment is finished, by someone qualified (paras 91, 98).
• The presumption of capacity is not a reason to skip the question. Nor is the absence of a learning disability label (paras 105, 106).
• Regulation 5 has teeth. Where complex needs call for specialist input, not obtaining it can make an assessment irrational (paras 108, 110).
• The cost point was faced, not dodged. The ruling may add work and cost, but a truer picture of need benefits the individual and uses resources better (para 99).

Read the full judgment: R (TDB) v London Borough of Haringey [2026] EWCA Civ 1184 (The National Archives).