TDB, R (On the Application Of) v London Borough of Haringey

Factual and Procedural Background

The Appellant, an adult with autism, ADHD, speech and language disorder, severe anxiety and complex behavioural and social needs, had received extensive support from childhood. The Local Authority was responsible for his care and support. [1][2][3]

Following disputes about the Appellant’s eligibility for specialist learning-disability services, the Local Authority completed a Care Act assessment on 13 December 2024. The assessment recorded difficulties concerning relationships, sexual relationships, social media and daily living, but did not include a formal mental-capacity assessment or specialist psychological input. [4][5][6][7][8]

The Appellant brought judicial review proceedings challenging the assessment on grounds including inadequate expertise, irrational conclusions and unlawful reliance on an inflexible policy. The High Court dismissed the claim on all grounds. The Appellant appealed, and permission was granted on all grounds. [9][10][11][12][13]

During the appeal, separate Court of Protection proceedings resulted in a later psychiatric assessment finding that the Appellant lacked capacity in several domains, including residence, care, contact with others, internet and social-media use, and tenancy decisions. [14][15]

Legal Issues Presented

1. Whether a local authority must assess an adult’s mental capacity under the Mental Capacity Act 2005 before completing a Care Act needs assessment where there is reason to doubt that person’s capacity. [16][17][18]
2. Whether the Local Authority was required to obtain specialist input, including from a psychologist or psychiatrist, given the Appellant’s complex conditions and needs. [19][20][21]

Arguments of the Parties

Appellant’s Arguments

• The available evidence raised concerns about the Appellant’s capacity concerning relationships, sexual relationships, social media and other care-related matters. The presumption of capacity could not be used to avoid conducting an assessment where there was legitimate doubt. [22][23][24][25][26]
• Capacity was relevant to identifying and characterising the Appellant’s needs and determining how those needs should be met. [23]
• The Care Act Regulations and statutory guidance required specialist input because of the Appellant’s multiple and complex conditions. [20][21]

Respondent’s Arguments

• No capacity assessment was necessary because the needs assessment did not involve a decision that the Appellant had to make, and he had been supported by his mother and a placement worker. [27]
• The statutory provisions concerning participation in assessments under section 67 of the Care Act, rather than a separate capacity assessment, governed the issue. [28]
• The assessor was appropriately trained, and there was no basis for requiring additional specialist input. [29]

Intervenor’s Arguments

• The obligation to consider capacity arose from the Care Act itself as well as statutory guidance, and could be relevant both to the substance of the person’s needs and to their participation in the assessment. [30][31][32]
• The presumption of capacity did not prevent an assessment where there was legitimate doubt. The threshold for triggering an assessment was relatively low. [33][34][35][36]
• The expertise and training requirements in Regulation 5 of the 2014 Regulations were mandatory. [37][38][39]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court held that a capacity assessment is required whenever there is a reason to doubt the capacity of a person whose care and support needs are being assessed, and that it must be completed by an appropriately qualified professional before the Care Act assessment is completed. [42][50]

Capacity was relevant to evaluating well-being, including control over day-to-day life, participation and personal relationships. The Local Authority therefore needed a clear understanding of the Appellant’s capacity in the domains relevant to his well-being. [51][52][53]

The Care Act’s provisions concerning involvement in assessments, refusal of assessments and care planning also required the Local Authority to understand whether the Appellant had capacity to make relevant decisions. [53][54]

The assessment regulations required the assessment to be proportionate, accessible and designed to maximise participation. Those requirements could not be applied lawfully without considering the Appellant’s capacity where it was in doubt. [55]

The Court held that the statutory guidance reinforced, rather than created, the obligation to assess capacity when concerns arose. The Mental Capacity Act principles and Code of Practice therefore applied to the assessment process. [56][57][43]

On the facts, there was clear evidence that the Appellant lacked capacity concerning relationships and sexual-relationship boundaries, and further evidence giving reason to doubt his capacity in other areas. His behaviour, the concerns of residential staff, his diagnoses and the earlier finding concerning social-media decisions all supported that conclusion. [58][59]

The Court rejected reliance on the presumption of capacity and on the requirement to provide practicable support as reasons not to assess capacity. Those principles governed how capacity must be assessed; they did not eliminate the duty to assess it when capacity was in doubt. [46][47]

Section 67 of the Care Act concerned facilitating participation in assessments and plans. It did not replace or override the separate obligation to assess capacity regarding substantive decisions about the person’s life and care. [60]

The Court also held that the Local Authority had failed to obtain specialist input despite the Appellant’s complex diagnoses and needs. Regulation 5 imposed a mandatory duty to ensure appropriate skills, knowledge and competence and, where required, to consult relevant expertise. [61][62]

In this case, specialist advice from a psychologist or psychiatrist should have been obtained. The first-instance judge had not adequately addressed the Appellant’s specific conditions or the reasons why specialist input was said to be necessary. The failure to obtain that input was irrational. [63][44]

Holding and Implications

APPEAL ALLOWED. The Court quashed the Care Act assessment dated 13 December 2024. [44]

The Court did not direct the Local Authority to conduct a fresh assessment because the Appellant’s future care was being considered in the ongoing Court of Protection proceedings, which would determine whether further assessments were required. [44]

The judgment establishes that, where there is reason to doubt an adult’s capacity in matters relevant to a Care Act needs assessment, a properly qualified professional must conduct a Mental Capacity Act assessment before the needs assessment is completed. It also confirms the mandatory nature of the expertise requirements in Regulation 5 of the 2014 Regulations. [42][61]