GUIDES
A learning disability does not determine capacity. Begin with accessible information and appropriate communication support, then assess the particular decision without confusing difficulty expressing a choice with inability to make it.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
39 Essex Chambers, Mental Capacity Guidance Note: Carrying out and recording capacity assessments.
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A learning disability does not determine capacity. Begin with accessible information and appropriate communication support, then assess the particular decision without confusing difficulty expressing a choice with inability to make it. This guide covers the relevant evidence, support, process and limits in England and Wales.
A learning disability does not determine capacity. Begin with accessible information and appropriate communication support, then assess the particular decision without confusing difficulty expressing a choice with inability to make it.
A learning disability does not determine capacity. Begin with accessible information and appropriate communication support, then assess the particular decision without confusing difficulty expressing a choice with inability to make it. The assessment should identify what the person can do with support and keep capacity separate from legal authority, best interests or other professional decisions.
Name the decision in ordinary language, such as deciding between residence options or authorising a payment. Do not ask whether the person has capacity because they have a learning disability. Different decisions require different information.
For an MCA matter, presume capacity, take all practicable steps to support the person and respect an unwise choice. Assess understanding, retention, use or weighing and communication by any means. If an inability is identified, explain whether impairment or disturbance of the mind or brain causes it. Use any distinct legal test required by the particular decision.
Use the person’s preferred communication, accessible or easy-read material, demonstrations and learning time where helpful. A communication specialist or independent interpreter may assist. Avoid testing literacy or verbal fluency in place of the actual decision.
Useful evidence may include communication profiles, education or care records, advocacy input, accessible information used, support provided, family context and records showing how the person usually makes decisions.
Risk factors should be recorded without being treated as shortcuts to incapacity. Relevant issues may include family conflict, urgency, financial pressure, inconsistent instructions, communication barriers, safeguarding concerns, dependency on others, or a history of cognitive impairment. The report should separate risk from the legal question of capacity.
A useful guide or report should identify the decision, relevant information and evidence, explain the support provided, and show how the conclusion follows. Readers should also be able to find the applicable official source and understand any limits or uncertainty.
A familiar supporter may help explain communication, while an independent advocate may be appropriate or required in some processes. Record who attended and manage pressure or conflicts. A supporter must not supply the person’s answers, and difficulty speaking should not be treated as inability if a decision can be communicated another way.
Define the decision and time, provide appropriate support and explain the evidence and reasoning. Report retained abilities as well as difficulty and acknowledge uncertainty. The opinion does not confer authority on relatives or settle every related legal or professional issue.
It depends on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related. An independent, decision-specific assessment matched to those factors carries the most weight.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
The report should describe accessible information, communication support, learning time and the person’s actual responses, then explain the decision-specific findings and any causal link. Consider specialist assessment where the question or process warrants it, rather than solely because the person has a learning disability.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Ask the person and those who know their communication how best to present information. Allow learning time, suitable aids, breaks and an independent interpreter or communication specialist where appropriate; review the particular decision with that support in place.
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