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“We are still waiting for an Educational Psychologist.” If your Local Authority has said this to you, you are not alone. But here is the bit families are not always told clearly: an Educational Psychologist shortage is not, by itself, a lawful reason to miss your child’s EHCP deadlines. This guide explains what is going on, why EP advice matters, what the legal timescales are, and what you can do if your child is stuck waiting. Who is an Educational Psychologist? An Educational Psychologist, often called an EP, is a specialist who uses psychology to understand how a child learns, communicates, behaves and experiences school. As part of an EHC needs assessment, an EP may look at: How your child learns Cognition and learning needs Communication and interaction Social, emotional and mental health Sensory needs Behaviour linked to unmet need What support may be needed in school or another setting They may observe your child, speak to you and the school, review evidence, and provide written advice for the Local Authority. Why does an Educational Psychologist delay matter for an EHCP? When a council agrees to carry out an EHC needs assessment, it must gather advice from a range of people and professionals. This includes psychological advice and information from an Educational Psychologist. That advice can be extremely important because it often shapes two key parts of the plan: Section B: your child’s special educational needs Section F: the special educational provision your child must receive If EP advice is missing, delayed or too vague, the EHCP may be built on weak evidence. That can affect what needs are recorded, what support is specified, whether provision is quantified, and whether the final plan is strong enough to meet your child’s needs. If you are already at the stage where a draft or final plan has arrived and it does not reflect your child’s needs, our guide on how EHCP appeals work explains the next stage. What happens when there are not enough EPs? Your child waits. And waiting is not neutral. It has a cost. While the Local Authority says it is waiting for EP advice, your child may be: In school without the right support On a reduced timetable Struggling with anxiety or distress Avoiding school Missing education Managing without a clear plan Being supported by a school that does not have the right professional advice to work from A case we supported A family we supported submitted their EHC needs assessment request on 23 March 2026. That started the legal clock. Key dates were: 6-week decision deadline: 4 May 2026 Week 12 checkpoint: 15 June 2026 16-week deadline to decide whether to issue an EHCP: 13 July 2026 The reason given for the delay was simple: No EP available. Meanwhile, the child was only accessing one hour of school a day. They were struggling at school, struggling at home, and the family were stuck waiting while the Local Authority had already missed key legal deadlines. This is why parents should not accept “we are waiting for an EP” as the end of the conversation. It may explain the delay but does not automatically excuse it. Can the council delay because there is no EP? The short answer is no. The Local Authority has legal timescales to follow. Stage Deadline Decide whether to carry out an EHC needs assessment 6 weeks from the request Decide whether to issue an EHCP after assessment 16 weeks from the request Issue the final EHCP, if agreed 20 weeks from the request These deadlines come from the Special Educational Needs and Disability Regulations 2014. There are limited legal exceptions. Staff shortages and EP waiting lists are not generally one of them. So if the Local Authority says “there is no EP available”, your response should be: “What steps are being taken to comply with the statutory deadline?” Not: “Do we just have to wait?” If you are unsure where you are in the timeline, our EHCP support service can help you work out what stage you are at and what options may be available. What have the courts said? In R (W) v Hertfordshire County Council [2023] EWHC 3138 (Admin), the court confirmed that SEND timescales are hard-edged legal duties. They are not loose targets or “best endeavours” duties. In R (JSC) v Cambridgeshire County Council [2026] EWHC 68 (Admin), the council had missed the 16-week deadline, with the delay linked to a backlog in Educational Psychologist input. The High Court granted a declaration that the council had acted unlawfully, even though the process had later moved on, because the delay was part of a wider systemic issue. Should I just pay for a private EP report Some parents do choose to pay for a private Educational Psychologist report, especially where the delay is seriously affecting their child. A private report can help by giving clearer evidence about your child’s needs and the support they may require but you should not be forced into paying privately because the Local Authority has not arranged its own advice in time. If you have already paid privately because you felt you had no choice, keep a record of why you did so, when you did so, and what delay led to that decision. You may also need support to make sure private evidence is used properly. Our EHCP evidence pack support can help families organise evidence clearly for the Local Authority or SEND Tribunal. Quick parent checklist If the Local Authority says it is waiting for an EP, ask: When was my EHC needs assessment request received? What is the 16-week deadline? What is the 20-week deadline? Has EP advice been requested? When was it requested? Who is responsible for obtaining it? What is the Local Authority doing to meet the statutory timescale? What interim support is being considered while my child waits? Has the delay affected my child’s attendance, wellbeing or access to education? Do I need help challenging the delay? Final word Educational Psychologist shortages are real. Many Local Authorities are under pressure. But your child’s legal rights do not disappear because the system is stretched. If your Local Authority has missed EHCP deadlines and you do not know what to do next, Little Nellies can help you understand your options and push the process forward. You do not have to sit quietly in the waiting list while your child struggles. FAQs What is the deadline for a council to decide on an EHC needs assessment? 6 weeks from the date you or the school made the request. How long does a council have to decide whether to issue an EHCP? 16 weeks from the original assessment request. Can a council delay an EHCP because there's no Educational Psychologist available? No. EP staffing shortages are not a recognised legal exception to statutory EHCP timescales under the Special Educational Needs and Disability Regulations 2014. What did R (JSC) v Cambridgeshire County Council decide? The High Court found the council acted unlawfully by failing to complete an EHC needs assessment within the 16-week deadline, with the delay linked to an EP backlog. The court granted a declaration confirming the breach. Can I get my own EP report privately? Yes, and the council must consider it as part of the assessment. But responsibility for securing EP advice sits with the council, not the family. What should I do if my child's EHCP process is delayed because of an EP shortage? Request the reason in writing, track your statutory deadlines, document the impact on your child, and get support to challenge the delay if it continues.

Capacity assessments are often viewed as formal processes designed to determine whether an individual can make a particular decision. Whilst the Mental Capacity Act 2005 provides a clear legal framework for assessing capacity, there remains considerable discussion about how assessments should be conducted in practice. For many people, the thought of undergoing a capacity assessment can be intimidating. Individuals may worry that they are being tested, judged, or that someone else will decide what is best for them. Family members can also feel anxious, particularly when important decisions regarding finances, health, care arrangements, or legal matters are involved. The Mental Capacity Act 2005 was designed to empower individuals and protect their right to make their own decisions wherever possible. However, achieving this in practice requires more than simply applying a legal test. It requires an approach that is person-centred, supportive, and focused on maximising an individual’s ability to participate in the decision-making process. This is where the principles of Therapeutic Assessment may have an important role to play. The Purpose of Capacity Assessments Before exploring therapeutic assessments, it is important to understand the purpose of a mental capacity assessment. The Mental Capacity Act 2005 establishes a clear legal framework for determining whether an individual can make a specific decision at a specific time. Capacity is both decision-specific and time-specific. A person may have capacity to make one decision but not another, and capacity can fluctuate over time. The Act is underpinned by five statutory principles: ● Every adult must be assumed to have capacity unless proven otherwise. ● Individuals must be given all practicable support before being treated as unable to make a decision. ● People are entitled to make unwise decisions. ● Decisions made on behalf of someone lacking capacity must be in their best interests. ● Any intervention must be the least restrictive option available. These principles are familiar to professionals working within health and social care settings. However, translating them into meaningful practice can sometimes be more challenging than simply understanding them. The phrase “all practicable steps” is particularly important. It requires assessors to actively support individuals to make decisions before concluding that they lack capacity. This principle arguably sits at the heart of a therapeutic approach. What Is Therapeutic Assessment? Therapeutic Assessment was developed by psychologist Dr Stephen Finn and colleagues during the 1990s. Unlike traditional assessment models, which primarily focus on gathering information and reaching conclusions, Therapeutic Assessment views the assessment process itself as an opportunity for growth, understanding, and positive change. The model was originally developed within psychology, but many of its principles have relevance across a range of assessment settings. At its core, Therapeutic Assessment is based on collaboration. Rather than conducting an assessment to a person, the assessor works with them to understand their experiences, concerns, and goals. The individual becomes an active participant in the assessment process rather than simply the subject of it. This may sound like a subtle distinction, but it can fundamentally change the experience of assessment. The Problem with Traditional Assessment Approaches Historically, some assessments have adopted a highly structured question-and-answer format. Whilst structure is important, an overly rigid approach can create barriers. Many individuals become anxious when they feel they are being tested. Others may struggle because of communication difficulties, sensory impairments, cognitive challenges, cultural differences, or simply because they are unfamiliar with the assessment process. When assessments become focused solely on obtaining answers to predetermined questions, there is a risk that the assessor overlooks the person’s strengths, communication style, and preferred ways of understanding information. This can be particularly problematic in decision-specific mental capacity assessments, where the consequences of a finding of incapacity can be significant. A person-centred approach requires assessors to look beyond whether someone can immediately answer a question and instead consider what support may help them demonstrate their abilities. Therapeutic Principles and the Mental Capacity Act One of the most interesting aspects of Therapeutic Assessment is how closely many of its principles align with the ethos of the Mental Capacity Act. Collaboration The MCA places considerable emphasis on involving individuals in decisions affecting their lives. Similarly, Therapeutic Assessment promotes collaboration throughout the assessment process. Rather than positioning the assessor as the sole expert, both parties work together to develop a shared understanding of the situation. Respect The MCA begins with the presumption of capacity. This reflects a fundamental respect for individual autonomy. Therapeutic Assessment reinforces this by recognising individuals as experts in their own lives and experiences. Compassion Many people undergoing capacity assessments are facing difficult circumstances. They may be living with dementia, acquired brain injuries, learning disabilities, mental health difficulties, or neurological conditions. A therapeutic approach acknowledges the emotional impact of these experiences and seeks to create an environment where people feel comfortable enough to participate fully. This can be especially important where the assessment relates to sensitive issues such as capacity for health and welfare decisions, care arrangements, medical treatment, or contact with others. Curiosity Capacity assessments are not simply about identifying deficits. Assessors should be curious about what support may help a person understand, retain, use, weigh, or communicate information. Sometimes a small adjustment can significantly improve a person’s ability to engage in the assessment process. What Does a Therapeutic Capacity Assessment Look Like? It is important to recognise that Therapeutic Assessment is not a replacement for the Mental Capacity Act. The legal test remains exactly the same. An assessor must still determine whether there is an impairment or disturbance in the functioning of the mind or brain and whether that impairment prevents the person from: ● Understanding relevant information. ● Retaining that information. ● Using or weighing that information. ● Communicating their decision. However, a therapeutic approach influences how the assessment is conducted. For example, rather than immediately asking direct questions, an assessor may begin by exploring the person’s understanding of the situation through conversation. Visual aids, written information, diagrams, timelines, photographs, family trees, or practical examples may be used to support understanding. Information may be presented in different ways and revisited where necessary. The assessment becomes less about testing knowledge and more about supporting decision-making. This reflects the MCA’s requirement to take all practicable steps before concluding that someone lacks capacity. Why the Environment Matters One aspect of capacity assessment that is often overlooked is the impact of the environment. Individuals are more likely to demonstrate their abilities when they feel comfortable, respected, and understood. Anxiety can significantly affect communication, memory, concentration, and confidence. This is particularly relevant for older adults who may have undergone multiple assessments, medical appointments, or investigations. A therapeutic approach recognises these factors and seeks to reduce unnecessary stress wherever possible. Something as simple as taking additional time, using familiar language, or building rapport before formal questioning begins can make a considerable difference. This can also matter in more formal assessment contexts, including COP3 mental capacity assessments, where the report may need to explain not only the conclusion reached, but also what steps were taken to support the person’s participation. The Future of Capacity Assessment The Mental Capacity Act 2005 provides a strong legal framework, but there continues to be discussion about how assessments can become more person-centred and rights-based. Therapeutic Assessment offers an interesting perspective because it challenges the idea that assessments should focus solely on identifying difficulties. Instead, it encourages assessors to explore strengths, provide support, and maximise participation. Importantly, this does not weaken the robustness of the assessment. If anything, it strengthens it. An assessment is more likely to withstand scrutiny when there is clear evidence that every effort was made to support the individual before conclusions were reached. This is particularly important in complex decisions involving finances, property, LPAs, wills, litigation, care arrangements, or Court of Protection proceedings. In those situations, a well-reasoned assessment must remain legally robust while still respecting the person’s voice and individuality. Conclusion Capacity assessments are among the most important assessments undertaken within health and social care. The outcomes can affect where a person lives, how their finances are managed, what treatment they receive, and many other aspects of their life. The Mental Capacity Act 2005 provides the legal framework, but good assessment practice requires more than simply applying legislation. Therapeutic Assessment reminds us that assessments are ultimately about people. They are not merely exercises in information gathering but opportunities to understand how individuals think, communicate, and make decisions. By embracing principles such as collaboration, compassion, respect, and curiosity, assessors can create a process that is both legally robust and genuinely person-centred. In many ways, Therapeutic Assessment reflects the original spirit of the Mental Capacity Act itself: supporting people to make their own decisions wherever possible and ensuring that their voice remains at the centre of the process. Suggested CTA:If you need a decision-specific capacity assessment, Nellie Supports provides independent mental capacity assessments across England and Wales.

A recent Supreme Court decision involving the Attorney General for Northern Ireland, often referred to as the AGNI decision, has significantly changed the legal test used to determine whether a person is deprived of their liberty. Much of the discussion surrounding this decision has focused on adults who live in care homes, supported living placements, hospitals or other settings where they require ongoing supervision and support due to disability, illness or a lack of capacity to make certain decisions independently. However, I believe the decision may also raise important questions for young people aged 16 to 25 with Education, Health and Care Plans, particularly those attending specialist residential placements named in Section I of their EHCP. Whilst the Supreme Court’s decision was not specifically concerned with SEND law, it touches on issues that are often central to discussions about residential placements, including supervision, living arrangements, decision-making and the rights of vulnerable young people. It also raises important questions about the safeguards available to young people living in those settings and the role that consent may now play in those decisions. At Little Nellie’s, we regularly support families navigating EHCP processes, including applications, reviews and disputes involving specialist residential placements. Because these placements involve both educational provision and living arrangements, the implications of these changes to the legal framework surrounding deprivation of liberty are difficult to ignore. From Cheshire West to AGNI Before the recent Supreme Court decision, the legal test for determining whether a person was deprived of their liberty was largely based on the Supreme Court judgment in Cheshire West. Under what became known as the “acid test”, a person would generally be considered deprived of their liberty if they were under continuous supervision and control and were not free to leave. Importantly, factors such as whether the person appeared happy with the arrangements, whether they objected, or whether the restrictions existed for a positive purpose were generally considered irrelevant. The focus was on the objective reality of the restrictions. Where this threshold was met, deprivation of liberty safeguards applied. These safeguards exist to protect vulnerable individuals whose liberty needs to be restricted in order to keep them safe, ensuring that any restrictions are necessary, proportionate and in the person’s best interests. The GOV.UK explanation of the 2026 Supreme Court judgment confirms that the legal position has now changed. The AGNI ruling replaces the relatively straightforward Cheshire West approach with a broader, multi-factorial assessment. Rather than focusing solely on supervision and freedom to leave, decision-makers must now consider a wider range of factors, including the nature of the restrictions, their duration and overall effect, the purpose of the arrangements, the person’s wishes and feelings, and whether the individual appears to be consenting to the arrangements. This represents a significant shift from the Cheshire West approach. Factors that were previously considered largely irrelevant may now play a much greater role in determining whether a deprivation of liberty exists. The consequence is that some individuals who may previously have met the threshold for a deprivation of liberty under Cheshire West may no longer do so under the AGNI approach. Where this happens, the safeguards associated with a deprivation of liberty would no longer apply. Why Residential Placements Are Relevant In This Discussion Whilst many people assume education ends at 18, young people with EHCPs can continue to receive educational support up to the age of 25 where it remains appropriate to do so. As a result, some young people with complex special educational needs or disabilities may move from secondary school into specialist residential placements. Residential placements are very different from traditional educational settings. Whilst they provide education, they also provide accommodation, support with daily living, therapies, social opportunities and preparation for adulthood. In many cases, a residential placement may be the most appropriate option because it can provide a level of support, structure and specialist provision that may not be achievable within the family home or a local setting. However, the same factors that make a residential placement appropriate can also result in a high degree of supervision, routine and support. Young people may receive support with daily living activities, require supervision throughout the day, have restrictions placed on their movements, or rely on staff to manage risks and ensure their safety. In some cases, this level of supervision and control may previously have meant that deprivation of liberty safeguards applied. For young people living in residential settings, these safeguards helped ensure that restrictions were properly considered, necessary and implemented in the person’s best interests. For families trying to understand whether a placement is suitable, it is also important to look carefully at the EHCP itself. The wording in Section B, Section F and Section I can be critical because the plan should clearly connect the young person’s needs, the provision required and the placement being named. Our EHCP guides for parents explain how families can start reviewing these issues in a structured way. The Role of Consent One of the most significant aspects of the AGNI ruling is the greater emphasis now placed on a person’s wishes, feelings and apparent consent to their living arrangements. This means that a person’s apparent acceptance of where they live may become an important factor when determining whether a deprivation of liberty exists, and therefore whether the associated safeguards apply. This is where I believe important questions begin to arise for young people living in residential placements. Many young people with SEND are highly trusting of the adults around them. They may accept what professionals tell them, rely heavily on the support provided, or assume that the arrangements put in place for them are the only realistic option available. A young person may appear content because they have been reassured that the placement is the safest option, because they have settled into a familiar routine, or because they trust the professionals responsible for their care. None of these factors necessarily indicate that they have made a fully informed and independent decision about where they live. This is not to suggest wrongdoing on the part of professionals or residential settings. In many cases, the placement may genuinely be the most appropriate option available and may be delivering excellent outcomes for the young person. However, apparent contentment and meaningful consent are not necessarily the same thing. A young person may appear settled, compliant or accepting of their living arrangements without having made a fully informed and independent decision about where they live. This is especially important where a young person has difficulty understanding abstract consequences, weighing alternatives or challenging adult authority. Those issues may also be relevant when professionals are considering mental capacity under the Mental Capacity Act 2005, particularly for young people aged 16 and over. The Potential Implications If apparent contentment is sufficient to establish consent, some young people who may previously have benefited from deprivation of liberty safeguards could potentially fall outside of that protection. The significance of this is not simply that a legal label may no longer apply. The safeguards exist to ensure that restrictions placed upon a person are necessary, proportionate and in their best interests. They also provide a framework for ongoing oversight where significant supervision and control are involved. This does not only affect the young person in isolation. The loss of formal oversight may also affect the role that families, representatives and advocates can play where concerns arise. These safeguards do not simply authorise restrictions. They also provide important protections. These can include having a family member, friend or advocate formally involved in representing the person’s interests, the ability to request reviews of the arrangements in place, and the right to challenge those arrangements where appropriate. For families who have concerns about a residential placement, the loss of these protections could create a difficult situation by removing formal opportunities to challenge or review arrangements that would previously have fallen within the safeguards framework. Families may still have routes available within the EHCP process, particularly where the dispute concerns the suitability of the named placement, the provision in the plan, or whether the evidence supports a residential setting. Where that is the issue, it may be necessary to consider EHCP appeal options alongside any wider safeguarding, capacity or deprivation of liberty questions. I appreciate that this is a developing area of law and the practical implications of the AGNI ruling remain uncertain. However, it is difficult to ignore the possibility that some young people may find themselves with fewer formal protections available, despite the underlying arrangements remaining largely unchanged. Final Thoughts The AGNI decision has introduced a significant shift in the way deprivation of liberty is assessed. Whilst the ruling was not specifically concerned with SEND law or residential educational placements, it raises important questions for some young people with EHCPs who live in specialist residential settings. Residential placements can provide life-changing opportunities for young people with complex needs, offering specialist education, support, structure and preparation for adulthood. In many cases, they are the most appropriate and beneficial option available. However, the same factors that make these placements appropriate may also result in restrictions which, whilst necessary and in a young person’s best interests, may previously have engaged deprivation of liberty safeguards. The increased emphasis now placed on apparent consent has the potential to affect whether those safeguards continue to apply. If fewer young people fall within the safeguards framework, there is a possibility that some may lose protections that were previously available to them, despite the nature of their care and support arrangements remaining largely unchanged. For that reason, I believe it is important that discussions surrounding the AGNI ruling do not overlook the potential implications for the SEND sector, particularly for vulnerable young people living in specialist residential placements. If you are concerned about the wording of an EHCP, the suitability of a named placement, or whether the evidence properly supports a residential placement, Little Nellie’s EHCP support can help you review the plan, identify evidence gaps and prepare for the next stage of the process.

When someone makes a will, one of the most important questions is whether they had the mental capacity to make that decision at the time. For over 150 years, the courts have relied on the legal principles established in Banks v Goodfellow (1870). These principles remain the foundation of testamentary capacity assessments today. They require a person to understand that they are making a will, the nature of their estate, the people who may have a claim on that estate, and the effect of the decisions they are making. But while the legal test has remained largely unchanged, the science behind mental capacity assessments continues to develop. A recent review of the Testamentary Capacity Assessment Tool (TCAT) by Voskou, Douzenis, Ekonomou and Papageorgiou (2026), published in the Journal of Dementia and Alzheimer’s Disease, highlights how researchers are working to make testamentary capacity assessments more structured, transparent and evidence-based. Looking Beyond Memory One of the most common misunderstandings about testamentary capacity is that it is simply about memory. In reality, making a will is a complex decision. A person may remember their family members and know what assets they own, but still struggle with judgement, reasoning or understanding the consequences of their choices. The researchers behind the TCAT argue that a thorough testamentary capacity assessment should consider several important abilities, including: Memory and recall. Understanding of financial matters. Decision-making and judgement. Awareness of relationships and family circumstances. The ability to reason through situations involving trust and influence. These findings reflect what many experienced assessors already know: capacity is rarely determined by a single answer or a single test score. Why Structure Matters One of the most interesting aspects of the research is its focus on structured assessment. The TCAT uses carefully designed questions and practical scenarios to explore how a person thinks about financial decisions, relationships and everyday problems. Rather than simply asking factual questions, it encourages assessors to explore the reasoning behind a person's answers. This approach is important because courts often need to understand not only what a person decided, but how they reached that decision. A well-structured assessment helps ensure that important areas are explored consistently and that conclusions can be clearly explained if they are later challenged. This is one reason why choosing a suitably experienced mental capacity assessor can be so important in complex or disputed will-making situations. Capacity Is Not the Same as Diagnosis Another important message from the research is that a diagnosis of dementia does not automatically mean a person lacks testamentary capacity. Many people with mild cognitive impairment or early-stage dementia continue to understand their wishes, relationships and financial circumstances well enough to make a valid will. Equally, some people may have difficulties with judgement or decision-making that require closer examination. This is why good assessments focus on the person's abilities rather than their diagnosis alone. The question is not whether someone has dementia. The question is whether they can make the specific decision that is being assessed. The Importance of Evidence At Nellie Supports, we believe that professional opinions should be supported by evidence. Recent research reinforces this principle. The authors of the TCAT model emphasise that specialist assessment tools should support professional judgement, not replace it. No assessment tool can determine testamentary capacity on its own. Instead, tools and structured interviews help assessors gather evidence, identify relevant strengths and difficulties, and explain how they arrived at their conclusions. This is particularly important in situations where family members disagree, concerns have been raised about undue influence, or a will may later be challenged. In higher-risk or contested cases, a more detailed Enhanced Capacity Assessment Service may be appropriate where wider evidential work is needed. What This Means for Families and Professionals The most significant lesson from this research is not that there is a new test for testamentary capacity. It is that good assessments are becoming increasingly evidence-led. Modern practice is moving towards assessments that are: Structured. Transparent. Based on relevant evidence. Focused on the person's actual decision-making abilities. Capable of being explained and scrutinised. These are principles that benefit everyone involved, including the person making the will, their family, legal professionals and ultimately the courts. Where a person is no longer able to make or change a will themselves, families and professionals may need to consider whether a statutory will assessment package is required instead. The Future of Testamentary Capacity Assessment Research in this area continues to develop, particularly in understanding how memory, judgement, social understanding and vulnerability to influence affect will-making decisions. While no single assessment can provide all the answers, studies such as these are helping professionals build more reliable and consistent approaches to evaluating testamentary capacity. At Nellie Supports, we welcome developments that strengthen evidence-led practice and improve the quality of assessments. The goal is not simply to reach a conclusion, but to ensure that conclusions are supported by clear evidence, sound reasoning and a process that can withstand scrutiny. Because when important decisions about a person's wishes and legacy are involved, the quality of the assessment matters. You can also explore our wider mental capacity assessment guides for further information about decision-specific capacity. Further Reading Voskou, P., Douzenis, A., Ekonomou, A., & Papageorgiou, S. G. (2026). State-of-the-art Testamentary Capacity Assessment Tool (TCAT) in dementia: A review of studies and update report. Journal of Dementia and Alzheimer’s Disease, 3, 25. https://doi.org/10.3390/jdad3020025

Starting a new job can be both exciting and daunting. Whether you are entering a profession for the first time or bringing years of experience with you, there is always a period of adjustment. New systems, new colleagues, different ways of working and unfamiliar expectations can all make those first few days feel overwhelming. A Good Induction matters in Mental Capacity and Social Work, regardless of how much experience you have. Having worked in social care for nearly two decades, I have started a number of new roles throughout my career. More recently, when I joined Nellie Supports in 2023, I was reminded just how important a good induction process can be. There is sometimes a misconception that induction is mainly for people who are new to a profession. In reality, I would argue that induction is equally important for experienced professionals. Every organisation develops its own standards, values and expectations. Whilst experience provides us with knowledge and skills, a good induction helps us understand how those skills fit within a new organisation. I still remember my first day at Nellie Supports. Despite my years of experience, I had the same thoughts that many people have when starting somewhere new. Would I settle into the team? Would I understand the systems quickly enough? Would I meet expectations? Like most people, I wanted to make a positive impression whilst also trying to take in a large amount of new information. From the moment I arrived, Ben and Kerry made a genuine effort to make me feel welcome. They took the time to introduce me to colleagues, explain how the organisation operated and discuss my previous experience. Rather than simply handing me a stack of documents and pointing me towards a desk, they spent time understanding my background and how my skills and experience could contribute to the work being undertaken. What stood out to me was how thoughtful the process felt. It was clear that consideration had been given to what a new starter might be feeling on their first day. Even experienced professionals can feel uncertain when joining a new organisation, and there was a genuine effort to make that transition as comfortable as possible. It felt less like attending an induction and more like being welcomed into a team. One thing I particularly remember was going out for lunch together. This might sound like a small detail, but it was not really about the food. It was about creating an opportunity to get to know people in a relaxed setting and helping a new colleague feel included. Starting a new role can sometimes feel isolating, especially when everyone else already knows each other. Taking the time to sit down, have a conversation and build relationships outside of a formal office environment helped me feel much more at ease. As Nellie Supports proudly uses the elephant as its symbol, I remember feeling like I was being welcomed into the herd rather than simply joining another workplace. Of course, induction is not just about making people feel comfortable. There is also a practical purpose. During those early days, I was provided with guidance documents, policies and procedures which helped me understand the organisation’s expectations and standards. Whilst policies may not be the most exciting part of any induction, they provide an important foundation. They give employees a clear understanding of how an organisation operates and what is expected of them. One of the things I quickly recognised was the emphasis placed on consistency and quality. As professionals, we all develop our own approaches throughout our careers. We learn from experience, training, colleagues and the people we support. However, if everyone works entirely to their own standards, there is a risk that service users and clients receive different experiences depending on who they happen to work with. A good induction helps ensure that everyone understands the standards expected within the organisation. This is particularly important when working within social care and completing assessments and reports that may be relied upon by families, solicitors, healthcare professionals, local authorities and sometimes the courts. Consistency does not remove professional judgement; rather, it helps ensure that all clients receive the same high standard of service. The nature of the work undertaken at Nellie Supports also makes induction especially important. Much of our work involves visiting people in their own homes, care homes, hospitals and other settings to complete assessments. Unlike many office-based roles, assessors are often working independently whilst representing the organisation. This means that confidence, competence and a clear understanding of standards are essential before somebody begins working alone. For this reason, induction is not limited to reading policies or attending meetings. Whenever possible, new assessors are given opportunities to shadow experienced colleagues across different assessment types. Observing assessments in practice provides valuable insight that cannot always be gained from guidance documents alone. It allows new starters to see how assessments are structured, how rapport is developed with clients and how professional judgement is applied in real-life situations. Equally important is the opportunity to reflect on what has been observed and learned. Feedback from mentors, together with discussions with supervisors, helps identify strengths and any areas where further support may be beneficial. This process helps determine when a new assessor is ready to undertake work independently whilst ensuring that quality and professional standards are maintained. I think this highlights another important aspect of induction. The objective is not simply to get somebody working independently as quickly as possible. The aim is to ensure that they feel confident, supported and equipped to deliver a consistent and high-quality service. Given the importance of the mental capacity assessments we undertake and the impact our reports can have on the lives of clients and families, this approach is essential. Another important lesson I learned was that induction is not something that should end after the first day, first week or even first month. In some organisations, induction can feel like a checklist exercise that is completed and then forgotten. My experience at Nellie Supports was very different. The induction process continued beyond those initial introductions. There were regular opportunities to ask questions, discuss work, seek feedback and identify any areas where additional support might be beneficial. This ongoing approach helped me build confidence and gradually become more independent within my role. Knowing that support was available when needed made a significant difference during those early months. I also think it is important to recognise that no two employees are the same. People join organisations with different levels of experience, different strengths and different learning needs. What works well for one person may not be what another person requires. This is why I believe the best induction programmes are tailored to the individual. Some employees may need additional support with systems and processes. Others may require more guidance around report writing, assessments or organisational procedures. A well-designed induction should recognise these differences and adapt accordingly. This was certainly my experience. Whilst support was readily available, there was also recognition of the experience I already brought to the role. I was not treated as though I was entirely new to social care and did not need every task explained step by step. Instead, there was a balance between providing guidance and respecting existing professional knowledge. For me, this created a sense of being part of a professional team rather than simply filling a vacancy. Another benefit of induction is that it helps employees understand the wider organisation. It is not only about learning your own responsibilities. It is also about understanding the services provided, the company’s values and how different teams work together. Having that broader understanding helps people see how their role contributes to the overall work of the organisation and, ultimately, the outcomes achieved for clients and families. Looking back now, I can see that induction is about far more than policies, procedures and training sessions. It is about helping people understand the culture of an organisation, develop confidence in their role and build relationships with colleagues. It is about creating an environment where people feel supported and able to succeed. Most importantly, it is about recognising that learning never stops. Even after many years working in social care, I continue to learn from colleagues, clients and new experiences. A good induction provides the foundation for that ongoing learning journey. Three years later, I still believe that one of the most important investments an organisation can make is supporting people properly from day one. Whether someone is new to social care or brings decades of experience with them, a thoughtful and well-structured induction can make all the difference. It helps people feel welcomed, valued and equipped to succeed, and ultimately that benefits everyone, including the people we support. At Nellie Supports, that sense of support, consistency and shared professional responsibility is not limited to induction. It is part of how the team approaches its wider work with clients, families and professionals across England and Wales.

The Court of Protection judgment in London Borough of Camden v BW & Anor (Capacity Decisions; Reasons) [2026] EWCOP 26 (T3) is an important reminder that mental capacity assessments must be rooted in the person’s actual circumstances, not just in a generic understanding of the decision. The case concerned BW, a 27-year-old woman with a complex presentation, including autism, a history of mental health detention, supported accommodation, periods of serious dysregulation, and vulnerability to exploitation. The Court of Protection had to consider whether BW had capacity to make decisions about two specific matters: whether to consent to psychotropic or depot medication; and whether information about her should be shared with her sister, AW. An independent expert, Dr Sheehan, had assessed BW as having capacity in both areas. Senior Judge Hilder disagreed and found that BW lacked capacity in relation to both decisions. The local authority appealed, arguing that the judge had given inadequate reasons, particularly because she had departed from the expert evidence. Mrs Justice Lieven dismissed the appeal. The key issue: did the assessment consider the right consequences? The central point in the judgment was not whether BW could say something about medication, side effects, anger, aggression, arrest, hospital or prison. She could. Nor was the issue whether Dr Sheehan had carried out a detailed assessment. He had. The issue was whether the assessment had identified and explored all of the relevant information BW needed to understand and use or weigh in making the decision. Under section 3(4) of the Mental Capacity Act 2005, relevant information includes information about the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision. In BW’s case, the court found that one highly material consequence had been missed: if BW did not continue with the depot medication, there was a reasonably foreseeable risk that her aggression would increase, which in turn could lead to the breakdown of her current placement. Senior Judge Hilder described this as information that was “wholly missing” from Dr Sheehan’s assessment. Mrs Justice Lieven agreed. At paragraph 64, she held that a reasonably foreseeable consequence of BW not taking the medication was that she would lose her current placement. At paragraph 65, she described that consequence as “obvious, direct and reasonably foreseeable”. That mattered because the possible loss of the placement was not a minor or remote issue. Given BW’s history of homelessness, imprisonment and detention under the Mental Health Act, the loss of accommodation was potentially a serious and grave consequence. The court is not bound by the expert This case is also a useful reminder that the decision on capacity is ultimately for the court, not the expert. Mrs Justice Lieven referred to the principle that the roles of the court and expert are distinct. Expert evidence may be very important, but the judge must make the final decision after considering all of the evidence. At paragraph 75, the court stated: “There is no doubt that the decision as to capacity is one for the Judge, and the Judge is fully entitled to depart from the capacity assessment, whoever it is undertaken by.” This does not mean expert evidence can be ignored. Far from it. Where a judge disagrees with an expert, the judge must explain why. But in this case, the explanation was clear: the expert had not considered a highly material matter, namely the likely impact of refusing medication on BW’s placement. This is particularly important in COP3 mental capacity assessments and other court-facing capacity reports, where the assessment must be more than clinically detailed. It must answer the correct legal question. The court was not substituting welfare for capacity. It was not saying that because medication was beneficial, BW therefore lacked capacity to refuse it. Rather, the court found that BW had not been assessed against the correct body of relevant information. That distinction is crucial. Unwise decisions are still allowed, but the person must be able to weigh the consequences The Mental Capacity Act is clear that a person must not be treated as unable to make a decision merely because they make an unwise decision. This principle is especially important in cases involving medical treatment, family relationships, contact, residence and care. People are entitled to make decisions that others consider risky, unusual or contrary to professional advice. However, the right to make an unwise decision presupposes that the person has capacity to make that decision. That requires the person to understand, retain, use or weigh the relevant information, and communicate the decision. In BW’s case, the relevant information included the likely effect of not taking medication on her behaviour, the risk of further aggression, and the possible loss of her placement. The concern was not simply that BW might refuse medication. The concern was that she was not able to understand or weigh a serious, foreseeable consequence of that refusal. This is why capacity for health and welfare decisions must be assessed by reference to the person’s real-world care, treatment, accommodation, safeguarding and support arrangements. Mrs Justice Lieven addressed this directly at paragraph 70, citing the well-known warning against allowing “the tail of welfare to wag the dog of capacity”. She concluded at paragraph 71 that there was nothing to suggest Senior Judge Hilder had confused an unwise decision with lack of capacity. The finding was based on BW’s inability to understand the reasonably foreseeable consequences of her decisions. Information-sharing with family: a separate but connected decision The second issue was whether BW had capacity to decide whether information should be shared with her sister, AW. This is a particularly interesting part of the judgment because information-sharing decisions can sometimes be assessed too narrowly. The assessment may focus on privacy, confidentiality and the person’s wishes, without sufficiently exploring the practical consequences of excluding a family member or advocate from the flow of information. In BW’s case, AW had played a significant role in advocating for her and supporting her. The court found that Dr Sheehan had not properly explored the consequences of AW not receiving information, particularly where BW’s care arrangements had to be made by others in her best interests. At paragraph 68, Mrs Justice Lieven held that the same analysis applied to information-sharing. Dr Sheehan had not explored with BW the likely consequences of AW being unable to advocate on her behalf, nor the impact this could have on the provision of the care BW needed. At paragraph 69, the court noted that BW’s family, and AW in particular, had been critical in ensuring BW received the care and support she needed and was entitled to. BW was clear that she did not want AW to be given information, but the judge was entitled to conclude that BW could not weigh the consequences of that decision. This is an important point for practitioners. A person may be able to say, “I do not want my sister involved” or “I can speak for myself”. But the assessment must still consider whether the person can understand and weigh what may happen if that family member or advocate is excluded from information-sharing, particularly where the person already lacks capacity in relation to care, support or residence. These issues also arise frequently in support for deputies and attorneys, where family members, attorneys, deputies and professionals may need to understand what information can be shared, why it matters, and how it affects the person’s care and protection. No enhanced “reasons burden” because of the presumption of capacity The local authority argued that because the Mental Capacity Act starts with the presumption of capacity, there was a heightened obligation on the judge to explain why BW lacked capacity, especially when the expert had reached the opposite conclusion. Mrs Justice Lieven rejected that argument. At paragraph 63, she held that the standard of reasons remains the same whatever the issue or where the burden lies. The reasons must be clear and intelligible, but there is no special enhanced standard simply because the court is finding that a person lacks capacity. The court accepted that reasons must explain why the decision was reached, address the principal issues, and show why the judge departed from the expert evidence. But they do not have to be lengthy, nor do they have to recite every part of the evidence. This is a practical and sensible approach. The court must give enough reasons to allow the parties to understand the decision. But capacity judgments are not required to become lengthy academic exercises where the essential reasoning is already clear. Practical lessons for mental capacity assessors This judgment has several important lessons for anyone completing mental capacity assessments. 1. Identify the specific decision Capacity is decision-specific and time-specific. The assessment must be clear about the exact decision under consideration. In this case, the relevant decisions were not simply “medication” and “family involvement”. They were decisions about depot psychotropic medication and information-sharing with AW in BW’s specific circumstances. 2. Identify the real-world relevant information The assessor must identify the information relevant to this person, in this situation, at this time. Generic information is not enough. For medication, this may include: the purpose of the medication; the expected benefits; the possible side effects; alternatives; what may happen if the medication is refused; whether refusal may affect care, support, accommodation, risk, relapse, admission or safeguarding. For information-sharing, this may include: what information may be shared; who it may be shared with; why sharing is being considered; the benefits and risks of sharing; the consequences of not sharing; whether the person would lose practical support, advocacy or safeguarding input. 3. Explore reasonably foreseeable consequences The key lesson from BW is that reasonably foreseeable consequences must not be treated as an afterthought. They are part of the statutory test. The assessor does not need to explore every remote possibility. But where a consequence is obvious, direct, serious and grounded in the evidence, it must be addressed. In this case, the possible loss of BW’s placement was not too remote. It was a direct consequence of the likely chain of events: refusal of medication, deterioration, increased aggression, and placement breakdown. 4. Do not focus only on what the person says they want Wishes and feelings matter. They should be taken seriously. But capacity is not established simply because the person can express a clear preference. The assessment must examine whether the person can understand and weigh the relevant information. A capacitous person can make a decision others consider unwise, but they must be able to engage with the salient consequences of that decision. 5. Be careful where care decisions and information-sharing overlap Where a person lacks capacity in relation to care and support, but is said to have capacity to exclude a family member or advocate from information-sharing, the assessor should examine the relationship between those two domains carefully. The person may still have capacity to make the information-sharing decision. But the assessment must address whether they understand and can weigh the practical impact of excluding someone who helps professionals understand their needs, risks, history and preferences. 6. Experts must address the statutory test, not just clinical presentation An expert report may be detailed and clinically sophisticated, but it can still be flawed if it does not address the relevant legal question. The Court of Protection is concerned with the statutory test under the Mental Capacity Act 2005. That means the expert must identify the decision, the relevant information, the reasonably foreseeable consequences, the person’s functional ability to make the decision, and the causative nexus between any inability and the impairment or disturbance in the functioning of the mind or brain. A robust mental capacity report must therefore explain not only what the person said, but how they engaged with the information that mattered to the actual decision. Why this case matters London Borough of Camden v BW is not a case that lowers the threshold for finding lack of capacity. Nor does it dilute the presumption of capacity. Instead, it reinforces a more precise point: capacity assessments must be properly anchored to the specific factual context. The question is not: “Can the person give some relevant answers?” The better question is: “Can the person understand and use or weigh the salient information, including the reasonably foreseeable consequences, of this decision in their actual circumstances?” For practitioners, the judgment is a reminder to slow down at the stage of identifying relevant information. A capacity assessment can appear thorough, but if it misses a material consequence, its conclusion may be unsafe. The decision also reminds us that courts will respect expert evidence, but they will not be bound by it. Where an expert has not considered a central statutory factor, the court may reach a different conclusion. In practice, this judgment should encourage assessors to ask more grounded questions: What is likely to happen if the person says yes? What is likely to happen if the person says no? Are any of those consequences serious or grave? Are those consequences specific to this person’s situation? Has the person actually been supported to understand and weigh them? Is any inability to understand or weigh those matters caused by an impairment or disturbance in the functioning of the mind or brain? That is the discipline required by the Mental Capacity Act. This case shows why it matters. If you need an independent, decision-specific mental capacity assessment service for a Court of Protection matter, health and welfare decision, information-sharing issue or complex professional dispute, Nellie Supports provides structured assessments across England and Wales.

As a mental capacity assessor, I am often asked why multiple assessments are needed for the same individual. From the outside, it can seem repetitive, even unnecessary. However, one of the most fundamental principles of capacity is that it is decision-specific. This means that a person may have the capacity to make some decisions, but not others. For example, an individual may be able to decide what to wear, what to eat, or where to live. At the same time, they may lack the capacity to make more complex decisions, such as investing money, purchasing property, or taking out a loan. These are not contradictions, they reflect the reality that different decisions require different levels of understanding and reasoning. The Legal Framework Behind Capacity All capacity assessments are grounded in key legal principles. These include: The presumption of capacity, meaning every adult is assumed to have capacity unless proven otherwise. The requirement to take all practicable steps to support an individual in making their own decision before concluding they lack capacity. The recognition that individuals are entitled to make unwise decisions. A poor decision does not, in itself, indicate a lack of capacity. The requirement that any inability to make a decision must be caused by an impairment or disturbance in the functioning of the mind or brain. This impairment may be evidenced through a formal diagnosis, clinical findings or other observable indicators of cognitive disturbance. The Functional Test: The Core of Every Assessment Most capacity assessments are structured around the functional test set out in the Mental Capacity Act 2005. This requires us to consider whether a person can: Understand the information relevant to the decision. Retain that information long enough to make the decision. Use or weigh that information as part of the decision-making process. Communicate their decision by any means. While these criteria remain constant, the information relevant to the decision changes every time. What Counts as “Relevant Information”? Relevant information is not generic, it is tailored to the specific decision being assessed. In litigation capacity assessments, for example, relevant information may include: How the case is being funded. The risks of losing, including potential costs. The nature of the claim. The decisions that may arise throughout proceedings. These points are often drawn from formal guidance, such as a certificate of capacity to conduct proceedings. However, how this information is explored depends entirely on the individual. Questions might include: “What are you asking the court to decide for you?” “What does no win, no fee mean?” “What could happen if the case is unsuccessful?” These are not fixed scripts and every assessment is person-specific, requiring the assessor to adapt language, pace and questioning in real time to ensure the individual is supported to demonstrate their ability. Why One Assessment Isn’t Enough I was once asked to complete a testamentary capacity assessment, to determine whether an individual had the capacity to make a will. Testamentary capacity is governed not by the Mental Capacity Act, but by the long-standing case of Banks v Goodfellow. This requires that the individual understands: The nature of making a will. The effects of making a will. The extent of their estate. The claims of potential beneficiaries. Any moral obligations they may have. Following the assessment, I was satisfied that the individual had the capacity to proceed and the will was signed. However, immediately afterwards, I was asked to sign additional documents confirming that the same individual had capacity to: Add a personal assistant as a cardholder on their bank account. Appoint a Lasting Power of Attorney for property and finances. This is where the principle of decision-specific capacity becomes critical. Why Capacity Does Not “Carry Over” The relevant information required to appoint a Lasting Power of Attorney is significantly more complex than that required to make a will. To appoint an LPA, an individual must typically understand: The legal effect of the LPA. Who the attorneys are. The scope of their powers and any restrictions. When those powers can be used. The range of assets they may control. The ability to revoke the LPA while capacitous. The risks and benefits of creating, or not creating, the LPA. When compared to testamentary capacity, there is minimal overlap. Although the individual had the capacity to make a will, this did not automatically mean they had the capacity to grant a Lasting Power of Attorney. These are distinct legal decisions, requiring separate assessments. Why This Can Feel Frustrating For individuals and families, this process can understandably feel repetitive. It may involve multiple assessments, additional time and increased cost. However, this approach exists for an important reason. A thorough, decision-specific assessment protects the individual at the centre of the decision, their family and support network and the professionals involved. Most importantly, it ensures that decisions are made lawfully, safely and in the person’s best interests where required. When Things Go Wrong The importance of this approach is highlighted in case law. In The Public Guardian v RI & Others (2022), an individual with a lifelong learning disability and chronic schizophrenia had executed an LPA. However, following safeguarding concerns, retrospective review concluded that he was unlikely to have had capacity at the time. As a result, the LPA was declared invalid and cancelled. Had a proper capacity assessment been undertaken at the time, concerns may have been identified earlier and alternative safeguards could have been put in place to protect the individual. This is also why capacity evidence can be so important in Court of Protection matters, particularly where there are disputes, safeguarding concerns, deputyship issues or questions about whether a previous legal document should be relied upon. Final Thoughts Capacity assessments are not about restricting autonomy, they are about protecting it. By recognising that capacity is decision-specific, we ensure that individuals are supported to make their own decisions wherever possible, while also safeguarding them where they cannot. It may take more time and may require more than one assessment, but ultimately it is a process designed to get the right decision, for the right person, at the right time. Genevieve Walls

The local authority has made a decision about your child's EHCP. You think the plan does not properly reflect their needs, especially around social care, daily support, or provision beyond the school day. This guide explains when an independent social work report can help your appeal, what it should cover, and when you may need wider SEND Tribunal preparation and representation. Key statistics 99% of SEND appeals decided by the tribunal were in favour of the appellant in 2024/25 There were 25,000 registered SEN appeals in the 2024/25 academic year 61% of registered SEN appeals in 2024/25 were related to EHCP contents SOURCE: Ministry of Justice Tribunal Statistics Quarterly, July to September 2025. Check the latest quarterly release before publishing. What is the SEND Tribunal? The First-tier Tribunal (Special Educational Needs and Disability), commonly called the SEND Tribunal or SENDIST, is an independent judicial body that hears appeals from families and young people against decisions made by local authorities about Education, Health and Care Plans (EHCPs). For the full step-by-step appeal process, see How EHCP appeals work. You can appeal to the SEND Tribunal if the local authority has: Refused to carry out an EHC needs assessment Completed an assessment but refused to issue an EHCP Issued an EHCP but you disagree with its contents - including the named school or provision Refused to amend the EHCP following an annual review Decided to cease maintaining your child’s EHCP Deadline: You have two months from the date of the local authority decision letter to register your appeal or one month from the date of mediation. You must also contact a mediation adviser before filing in most cases, even if you decide not to proceed with mediation. You will receive a mediation certificate, which is normally needed with the appeal form. Always check the exact deadline on your decision letter and tribunal paperwork. What is a SEND Tribunal report? A SEND Tribunal report is an independent evidence pack that can be produced by a qualified, registered social worker who has no connection to the local authority involved in the case. It evaluates the child or young person's care, social care, and support needs in the context of their EHCP, and makes evidence-based recommendations about what the plan should say. It is submitted to the SEND Tribunal as part of the family’s evidence bundle. Tribunal panel members - including a legally qualified judge and a specialist - will weigh the independent report alongside the local authority’s own assessments when reaching their decision “An independent report helps the tribunal understand the child’s needs from a professional who is separate from the local authority decision being challenged.” The report can be commissioned by the family directly or through their solicitor. At Little Nellies, we work with both families and legal professionals and produce reports that are clear, evidenced, and accessible to parents, professionals and the tribunal panel. EHCP sections the report covers An EHCP has eleven sections, A through K. An independent social work report for SEND Tribunal usually focuses on the parts where social care evidence and daily support needs matter most. For wider EHCP support across applications, draft plans, mediation and appeals, visit the Little Nellies EHCP support hub. Section What it covers Role of independent report B Special educational needs Describes the child's special educational needs. An independent report can identify needs the LA has missed or understated. D Social care needs Where an independent social work assessment carries most direct weight. The social worker identifies needs, evidences them, and recommends what this section should say. F Special educational provision Must be specific, detailed, and quantified per the SEND Code of Practice. An independent report challenges vague provision and proposes evidenced, concrete wording. H Social care provision (H1 and H2) H1 covers provision the LA must arrange under the Care Act or Children Act. H2 covers other desirable provision. An independent report distinguishes these and ensures neither is omitted. SEND Code of Practice: EHC Plans should be clear, concise, understandable and accessible to parents, children, young people, providers and practitioners. A well-prepared independent social work report should follow the same standard. When do you need a report? Not every tribunal case requires one - but in most disputes about the social care content of an EHCP, an independent assessment significantly strengthens the family’s position. Here is a practical guide: Scenario Independent report recommended? Disputing Section D, F, or H content Yes - essential Local authority has no social care assessment on file Yes - fills the evidential gap Child's needs span children's and adult social care Yes - specialist expertise needed Arguing for a waking day curriculum Yes - almost always required Dispute is only about named school (Section I) Not always - depends on whether social care needs are in dispute Dispute is purely about educational provision and LA has a full assessment May not be necessary - an Ed Psych report may suffice What makes a good report? Not all independent reports are equal. Here is what separates a report that strengthens your case from one that makes no difference: LOOK FOR: • Written by a registered expert • Genuinely independent - no connection to the local authority or school in dispute • Based on direct assessment - the expert should have met your child and reviewed existing documentation • Specific and quantified - type, frequency, duration, and who is responsible for each provision • Covers the right sections - D, F, and H, not just one • Accessible to non-specialists - clear enough for a lay tribunal panel member to follow AVOID: • Reports written without meeting the child • Reports that simply restate the local authority’s position • Reports with no specific recommendations for EHCP wording • Reports from someone without experience of EHCP law or SEND Tribunal process FAQs What is a SEND Tribunal report? A SEND Tribunal report is an independent social work assessment produced by a qualified, registered SEND expert (oftentimes, an independent social worker). It evaluates a child or young person's care, support, and social care needs in the context of their EHCP, and is submitted as evidence to the First-tier Tribunal (Special Educational Needs and Disability) when appealing a local authority decision. Which sections of an EHCP does a social work report cover? An independent report typically makes recommendations in relation to Section B (special educational needs), Section D (social care needs), Section F (special educational provision), and Section H1/H2 (social care provision). It can also address whether provision should extend beyond the school day - a waking day curriculum. Can we commission a report directly, without a solicitor? Yes. A SEND Tribunal report can be commissioned directly by a family or through their solicitor. Either route carries the same evidential weight at tribunal. Nellie Supports works with both families and legal professionals. How long does a SEND Tribunal report take? At Nellie Supports, SEND-related assessments and reports are delivered within 10 to 14 working days of instruction, subject to availability and case complexity. Tribunal timetables are strict - instruct as early as possible once your appeal is registered. Can a report cover both children's and adult social care? Yes - and this matters. Because EHCPs can be maintained until a young person is 25, cases can span children's and adult social care. Nellie Supports has registered social workers with experience across both. Does Wales use the same SEND Tribunal process? The First-tier Tribunal (SEND) covers England. In Wales, appeals about Statements of Special Educational Needs are heard by the Special Educational Needs Tribunal for Wales (SENTW). Contact Nellie Supports directly for guidance on the process applicable to your location.

On 2 June 2026, the Challenging Behaviour Foundation published its response to the Supreme Court judgment on deprivation of liberty. For social workers, this is not a remote legal issue. It goes directly to how we understand liberty, consent, restriction, safeguarding and human rights in the lives of disabled people. The judgment concerns a Supreme Court reference brought by the Attorney General for Northern Ireland about deprivation of liberty, mental capacity and whether a person who lacks capacity can give valid consent to confinement through their wishes and feelings. In practical terms, it revisits the legal territory shaped by P v Cheshire West and Chester Council, the landmark 2014 case that gave practitioners the well-known “acid test”: is the person subject to continuous supervision and control, and are they not free to leave? That test mattered because it gave a clear, practical safeguard. It meant that a person’s right to liberty did not depend on whether they could object, whether they appeared happy, whether they were compliant, or whether others viewed the placement as kind, necessary or normal. For many disabled people, particularly people with learning disabilities, autistic people, people with complex needs and people who communicate distress or disagreement in non-verbal ways, that safeguard was profoundly important. At Nellie Supports, our work in mental capacity assessments, Court of Protection reports and wider independent social work services frequently sits at the point where legal rights, care arrangements and real-world restrictions meet. This is why the judgment matters so much in practice. Why Cheshire West mattered Cheshire West was never perfect in its practical consequences. The Deprivation of Liberty Safeguards system became overloaded, under-resourced and, in many places, deeply delayed. Families often found the system confusing. Professionals were often left trying to apply complex legal principles in pressured, underfunded services. But the principle at the heart of Cheshire West was simple and powerful: liberty is universal. A person does not have fewer human rights because they are disabled. A person does not lose the protection of Article 5 of the European Convention on Human Rights because they are compliant. A person does not stop being deprived of liberty simply because the arrangements are described as care, support, supervision or protection. That principle was particularly important because restrictive care arrangements can become normalised. Locked doors, constant supervision, restrictions on contact, control over movement, limited access to the community, restraint, seclusion, medication, environmental restriction and institutional routines can all become part of someone’s daily life. Without proper scrutiny, those restrictions can become invisible. This is why deprivation of liberty safeguards have never just been a legal process. They are a human rights checkpoint. They ask whether the arrangements are lawful, necessary, proportionate, in the person’s best interests, and whether there is a less restrictive way to meet the same need. What has changed? The Supreme Court has now considered whether the Cheshire West approach should continue to determine when a person is deprived of their liberty, particularly where a person lacks capacity under domestic law but appears to express wishes and feelings indicating consent to their living arrangements. That is a significant shift in focus. The concern is not that wishes and feelings are irrelevant. They are central to good social work practice. The Mental Capacity Act 2005 requires us to take them seriously. Any person-centred assessment should give proper weight to the individual’s voice, communication, preferences, history, relationships and emotional response to their circumstances. The concern is whether expressed happiness, apparent compliance or lack of objection may now be used to reduce legal scrutiny in situations that are still highly restrictive. That risk should concern every social worker. Why this matters for disabled people Many disabled people, particularly people with severe learning disabilities, autism, complex communication needs, acquired brain injury, dementia or profound cognitive impairment, may not object in ways that services recognise. Some people may not use speech. Some may have learned compliance after years of institutional care. Some may express distress through behaviour that is then framed as “challenging” rather than communicative. Some may appear content because they do not know alternatives exist. Some may be happy with aspects of their care, while still living under restrictions that would be unthinkable for a non-disabled person. This is where human rights practice becomes real. The right to liberty is not an abstract legal concept. It is protection against institutionalisation. It is protection against coercion. It is protection against restrictive practice becoming routine. It is protection against people being placed out of sight, without meaningful challenge, advocacy or review. The Challenging Behaviour Foundation has rightly highlighted the potential impact on people with learning disabilities and their families. If legal safeguards are narrowed without robust alternatives in place, the people most at risk will not usually be those who can complain loudly, instruct solicitors, contact journalists or challenge public bodies. They will be people who may not be able to clearly object. That is why this judgment is so concerning. The problem was the system, not the principle It is important to be honest about the existing DoLS framework. It has not worked as it should. There have been unacceptable delays. Local authorities have carried heavy backlogs. Families have experienced delay and confusion. Best Interests Assessors and mental capacity professionals have often been left carrying the consequences of a system that was never resourced properly. The Government has already recognised wider problems in the system, including through its work on Liberty Protection Safeguards. Reform is needed. But the answer to an imperfect safeguarding system cannot be to leave people with fewer protections. The answer should be a better system: clearer guidance, proper resourcing, skilled assessment, independent advocacy, regular review, meaningful family involvement, better training and a genuine commitment to least restrictive practice. A safeguard that is delayed needs fixing. A safeguard that is bureaucratic needs reform. A safeguard that is inconsistently applied needs investment and leadership. But a safeguard that protects people from unlawful restriction should not simply be narrowed because the system built around it has been allowed to fail. What social workers need to do now After my conversation last week with Sam, the interim CEO of BASW UK, it feels more imperative than ever that social workers understand human rights not just in theory, but in practice. This judgment makes that even more urgent. Social workers need to be confident in the Mental Capacity Act. We need to understand deprivation of liberty, Article 5, proportionality, necessity, best interests, advocacy, supported decision-making and least restrictive practice. But more than that, we need to know how to apply these principles in real life. That means asking difficult questions: Is this person really free to leave? Who controls their day-to-day life? What restrictions are in place? Are those restrictions necessary? Are they proportionate? Has the person been supported to understand and express their views? How does this person communicate objection, distress, fear, resignation or disagreement? Is the person’s apparent happiness being treated too simplistically? Could there be a less restrictive option? Has independent advocacy been considered? Are family concerns being heard? Is this genuinely care, or has care become control? These questions are not anti-care. They are good care. They are the questions that prevent restrictive arrangements from becoming normalised. They are the questions that protect people from being hidden in plain sight. Wishes and feelings must not become a shortcut One of the most delicate issues following this judgment will be how professionals interpret wishes and feelings. A person’s wishes and feelings must always matter. They should never be dismissed simply because the person lacks capacity for a particular decision. Social workers should be leaders in ensuring that disabled people’s voices are heard, respected and acted upon. But wishes and feelings must not become a shortcut around legal protection. There is a difference between genuinely understanding and respecting a person’s expressed will, and using apparent contentment to avoid scrutiny of restrictive arrangements. There is also a difference between a person being happy with trusted staff, familiar routines or a preferred home environment, and that person giving meaningful consent to restrictions on liberty. Social work practice must be alert to that distinction. This is particularly important in complex cases involving capacity to decide where someone lives, care arrangements, contact with others, safeguarding concerns, family disagreement or potential Court of Protection involvement. Liberty, safeguarding and professional courage This judgment lands at a time when adult social care is already under strain. Services are stretched. Placements are limited. Community support is inconsistent. Families are exhausted. Professionals are pressured. Restrictive options can sometimes appear easier to organise than creative, rights-based support. That is precisely why social workers must remain anchored in human rights. The core question is not simply “is this placement working?” It is also “is this person free?” And if they are not free, we must ask whether that restriction is lawful, necessary, proportionate, reviewed, challengeable and genuinely the least restrictive option. Safeguarding is not only about responding after harm has happened. It is also about identifying the conditions in which harm becomes more likely. Reduced scrutiny, unclear legal thresholds, weak advocacy and normalised restriction are all safeguarding risks. A call to social workers Social workers have a vital role in what happens next. We must not wait passively for new guidance. We must continue to practise in a way that recognises disabled people as rights-holders. We must challenge restrictive practice. We must record clearly. We must involve advocates. We must listen to families. We must understand communication. We must apply the Mental Capacity Act properly. We must be prepared to ask uncomfortable questions when care arrangements become controlling. Above all, we must remember that liberty matters most when a person is least able to defend it for themselves. Disabled people’s rights are not optional. They are not dependent on convenience, resources, compliance or professional assumptions. They are not removed because a person appears settled, quiet, happy or unable to object. Human rights belong to everyone. Liberty matters. Safeguards matter. And social workers must be ready to defend them in practice. How Nellie Supports can help Nellie Supports provides independent mental capacity assessments across England and Wales, including decision-specific assessments where questions arise about care, residence, contact, finances and Court of Protection matters. For Court of Protection evidence, our COP3 mental capacity assessment service supports families, deputies, attorneys, solicitors and professionals who need clear, structured and decision-specific capacity evidence. We also provide wider independent social work services where families or professionals need a social care perspective on restrictive arrangements, care planning, safeguarding concerns or complex support needs.

A family member may be told that visits must be supervised. Telephone calls may be limited. Visits may be reduced to a fixed time each week. In some cases, contact may be stopped altogether. This can be deeply distressing, particularly where the family member believes the restrictions are unfair, based on misunderstanding, or imposed because they raised concerns about care. At Nellie Supports, we provide independent mental capacity assessments, capacity assessments about care and support decisions, COP3 mental capacity assessments, and Court Reports and Expert Assessments for families, solicitors and professionals involved in disputes about care, residence, capacity and contact. Where contact with a loved one has been restricted, supervised or removed, we can provide an independent social work assessment that considers the person’s wishes and feelings, the evidence of risk, and whether the current restrictions are necessary, proportionate and in the person’s best interests. Need help with restricted contact? Contact Nellie Supports to discuss whether an independent assessment may help. Why contact restrictions are a serious issue Restrictions on family contact are not just a practical inconvenience. They can affect a person’s emotional wellbeing, identity, relationships and family life. Where the person may lack capacity to make decisions about contact, the decision should usually be considered under the Mental Capacity Act 2005. Section 4 of the Act sets out the best interests checklist, including the need to consider the person’s wishes and feelings and consult people involved in their care or interested in their welfare. If there is uncertainty about whether the person can make their own decision about contact, a mental capacity assessment may be needed. Where the issue relates to where someone lives, how they receive care, or who is involved in their care arrangements, Nellie Supports can also assist with capacity assessments about care and support decisions. Contact restrictions should not be imposed simply because a family member is viewed as difficult, challenging or inconvenient. There may be legitimate reasons to restrict contact, such as safeguarding concerns, distress, coercion, or risks to the person’s care. However, any restriction should be based on evidence, proportionate, reviewed regularly, and as least restrictive as possible. If the situation is complex, disputed or likely to involve solicitors, an Enhanced Mental Capacity Assessment may be more appropriate than a straightforward assessment. If you are unsure which assessment is needed, make an enquiry with Nellie Supports. What did the Court of Protection say about restricted contact? A recent Court of Protection case, PB, Re (Appeal: Best Interests: Restrictions on Contact in a Care Home) [2026] EWCOP 21, considered restrictions on contact between a mother and daughter in a care home setting. The Court recognised that restrictions on contact between a vulnerable adult and close family members engage Article 8 rights to private and family life. The judgment also considered the practical difficulty where a care provider says that unless contact is restricted, the placement may break down. The judgment is important because it shows that the Court may sometimes accept restricted or supervised contact where the alternative could be the loss of the person’s placement. However, the Court also made clear that contact arrangements are not static and should remain under active review. For families, this creates a difficult situation. It may not be enough simply to say: “The restriction is unfair.” Families may need independent evidence addressing: what the person wants; whether the alleged risks are properly evidenced; whether the restriction is proportionate; whether less restrictive options have been considered; whether contact could safely increase; whether a structured contact plan could reduce conflict. This is where Nellie Supports’ Court Reports and Expert Assessments, mental capacity assessments, and wider social care and case management services may help. If you are involved in a dispute about contact, residence or care, contact our team to discuss the best assessment route. Care homes, visiting rights and human rights In care home settings, visiting is also affected by Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 9A says that, unless there are exceptional circumstances, people whose care involves accommodation in a care home, hospital or hospice must be facilitated to receive visits. The Regulation also refers to taking necessary and proportionate precautions so visits can take place safely. In the PB case, the Court discussed Regulation 9A in the context of restrictions on visits, proportionality, safety and care home obligations. In addition, section 73 of the Care Act 2014 can mean that certain registered care providers are treated as exercising a public function for the purposes of the Human Rights Act 1998 when providing publicly arranged or funded care. The Court in PB accepted that this meant the care home had to comply with Article 8 rights when interfering with family life. This does not mean that all contact must always be unrestricted. It does mean that restrictions should be properly justified. Families are entitled to ask: What specific risk is being relied on? Is there evidence of that risk? Has the person’s own view been assessed? Has a best interests decision been completed? Have less restrictive options been considered? Is the restriction being reviewed? Could contact safely increase with a plan in place? An independent capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, or Court Report and Expert Assessment can help answer these questions in a structured, evidence-based way. How Nellie Supports can help Nellie Supports is an independent private social work practice. We do not provide care home placements or domiciliary care packages. Our role is to provide independent social work evidence where there are concerns or disputes about mental capacity, care, contact or best interests. In cases where contact has been restricted, supervised or stopped, we can provide a structured assessment that considers the full picture. This may include: speaking with the family member; reviewing relevant correspondence and records; assessing the person’s wishes and feelings; considering the importance of the relationship; reviewing the stated reasons for the restriction; considering safeguarding concerns; identifying whether less restrictive options are available; preparing a staged contact plan; producing an independent report for professionals, solicitors or the Court of Protection. This work may sit alongside our existing mental capacity assessment service, COP3 mental capacity assessments, Court Reports and Expert Assessments, and wider social care and case management services. To discuss whether Nellie Supports can assist, contact us here. What an independent contact assessment considers Every case is different, but our assessment may consider the following. The person’s wishes and feelings Where possible, we seek to understand what the person wants, how they experience contact, and whether they appear distressed, reassured, settled or unsettled by contact. If the person has difficulty communicating, we consider alternative ways of understanding their wishes and feelings. This may be especially important where a person has dementia, acquired brain injury, learning disability, mental disorder or communication difficulties. Where required, this can be considered alongside a formal mental capacity assessment. The family relationship We consider the history and importance of the relationship. For many people, contact with a spouse, child, sibling or close relative is central to their identity and wellbeing. Where there is a dispute about family contact, an independent assessment may help professionals and the Court understand the person’s welfare in a fuller context. If the case is already in legal proceedings, a report under our Court Reports and Expert Assessments service may be appropriate. The evidence behind the restriction We review what has actually been alleged or recorded. There is a difference between: a genuine safeguarding risk; a disagreement about care; a communication breakdown; a family member raising legitimate concerns; a provider finding a relative difficult to manage. This distinction is important. A contact restriction should be based on evidence, not simply on conflict between family members and professionals. Whether the restriction is proportionate A complete ban on contact is a significant step. Supervision, shorter visits, structured communication, agreed boundaries or a staged contact plan may sometimes be less restrictive alternatives. Where Court of Protection proceedings are ongoing or anticipated, our Court Reports and Expert Assessments can address whether restrictions are necessary, proportionate and in the person’s best interests. Whether the contact plan can be safely improved In some cases, our recommendation may be that restrictions remain necessary. In other cases, we may recommend a gradual increase in contact, clearer expectations, independent supervision, or a review meeting. The focus is always on the person’s welfare, rights, safety and best interests. Examples of situations where we may be able to help Families, solicitors or professionals may contact Nellie Supports where: a care home has reduced visits; contact has been made supervised; a family member has been banned from visiting; telephone or video contact has been restricted; a local authority says contact is not in the person’s best interests; there is a dispute about whether contact causes distress; a family member is accused of disrupting care; a person has been moved into care and family contact has changed; Court of Protection proceedings are being considered; an independent report is needed. These cases often overlap with wider questions about capacity, care needs, residence, safeguarding and family involvement. Nellie Supports can advise whether the most appropriate route is a mental capacity assessment, capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, COP3 mental capacity assessment, Court Report or Expert Assessment, or broader social care assessment. If contact with your loved one has been restricted, make an enquiry today. We are independent, not partisan It is important to be clear: Nellie Supports does not simply produce reports saying that contact should be restored. Our role is to provide an independent professional opinion. Sometimes the evidence may support increased contact. Sometimes it may support supervised or structured contact. Sometimes there may be genuine risks that need to be managed before contact can change. What we provide is a careful, evidence-based assessment that can help families, professionals and the Court understand what is happening and what options may be available. This independent approach is central to our mental capacity assessment, COP3 assessment, Enhanced Mental Capacity Assessment, and Court Reports and Expert Assessments work. You can also read more about our wider approach to independent practice on our Private Social Work and Professional Standards pages. Can our reports be used in Court of Protection proceedings? Yes, where appropriate. Nellie Supports can provide reports for solicitors, families, deputies, attorneys or professionals involved in welfare disputes. Our reports may be relevant where the Court of Protection is considering: contact; residence; care arrangements; best interests; family involvement; whether less restrictive options are available; whether further assessment is required. Where a report is required for court proceedings, instructions should usually be provided by a solicitor, and we can work within a formal letter of instruction. You can learn more about this work on our Court Reports and Expert Assessments page. If the court requires a specific COP3 form, our COP3 mental capacity assessment service may also be relevant. For solicitor instructions, contact Nellie Supports to discuss timescales, fees and suitability. What should families do if contact has been removed? If contact with a loved one has been restricted or stopped, it is important to act carefully. You may wish to: Ask for the reasons in writing. Ask what evidence the decision is based on. Ask whether a best interests decision has been completed. Ask when the restriction will be reviewed. Ask whether less restrictive options have been considered. Keep your own written record of events. Seek legal advice where necessary. Consider an independent social work assessment. A well-prepared independent assessment can help move the issue away from conflict and towards evidence, risk management and practical planning. Nellie Supports can help families and solicitors decide whether a mental capacity assessment, capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, COP3 mental capacity assessment, Court Report or Expert Assessment, or broader social care assessment is most appropriate. Need an independent assessment? Nellie Supports provides independent social work assessments for families, solicitors and professionals where contact with a loved one has been restricted, supervised or stopped. We can help by assessing the person’s wishes and feelings, reviewing the evidence of risk, considering best interests, and recommending practical options for safe and meaningful contact. Contact Nellie Supports today to discuss whether an independent contact restriction assessment may help. Has contact with a loved one been restricted or stopped? Nellie Supports provides independent social work input, mental capacity assessments, COP3 assessments, social care assessments, and Court Reports and Expert Assessments for families, solicitors and professionals. Our reports can consider whether restrictions are necessary, proportionate and in the person’s best interests, and whether less restrictive contact arrangements may be possible. Make an enquiry

At Nellie Supports, we have always believed that professional work should do more than sound confident. It should be clear, evidence-led, properly reasoned, and strong enough to stand up to scrutiny. That belief now has a name: the Nellie Standard. The Nellie Standard is the framework we use across mental capacity assessments, court reports and expert assessments, NHS Continuing Healthcare support, advocacy, reporting, and evidential work. It sets the standard we believe professional work should meet before a family, solicitor, deputy, local authority, NHS body, tribunal, or court is asked to rely on it. In simple terms, it reflects a straightforward idea: professional conclusions should not rest on assumption, vague opinion, or generic wording. They should be based on the right test, supported by visible evidence, and explained with enough clarity that others can follow the reasoning behind them. That matters because the work we do often sits alongside significant decisions. Whether the issue is mental capacity, care funding, NHS Continuing Healthcare appeals, COP3 evidence, retrospective analysis, or another evidence-led service, the quality of the assessment and the quality of the reasoning both matter. A conclusion is only as strong as the process behind it. The seven principles behind the Nellie Standard The Nellie Standard gives us a clear framework for that process. It is built around seven principles: Evidence before opinion The correct test first Specific analysis, not generic description Supportive process Transparent reasoning Clear conclusions Capable of scrutiny These principles shape how we accept instructions, how we gather and review evidence, how we structure reports, and how we explain conclusions. They also reflect something important about how we see professionalism: not as presentation, but as method. For example, in a mental capacity assessment, the question is not whether someone has capacity “in general”. The assessment must focus on the specific decision, the relevant information, the practicable steps taken to support the person, and the evidence that explains how the conclusion was reached. That is why we place emphasis on decision-specific work, including assessments for managing finances, COP3 applications, trustee decisions, litigation-related matters, and other complex situations where a clear evidential framework is needed. Why the standard matters Professional evidence is often relied on by people who are making serious decisions. A solicitor may need a report that can support legal advice. A family may need a clear explanation of why a conclusion has been reached. A deputy or attorney may need evidence that shows proper reasoning. A court or tribunal may need a report that is structured, balanced and capable of scrutiny. In those situations, vague wording is not enough. The Nellie Standard is designed to reduce ambiguity. It asks: Has the correct legal or professional test been identified? Is the evidence visible? Has the person been supported to participate where possible? Are the limits of the evidence explained? Is the reasoning clear enough for someone else to follow? Does the conclusion answer the actual question asked? This approach also informs our wider guidance for families and professionals, including our resources on how to prepare for a mental capacity assessment, what makes a capacity report court-ready, and common mistakes in mental capacity reports. Independence is part of the standard The Nellie Standard is also about independence. Good professional work should not be shaped around the outcome someone hopes for. Where evidence is limited, mixed, or incomplete, that should be identified honestly. Where a conclusion can be reached, it should be reached clearly and proportionately. That applies whether we are completing a capacity assessment, reviewing care records, preparing an expert-style report, supporting a CHC challenge, or helping a family understand a complex decision-making process. Independence does not mean being detached from the people involved. It means being fair, evidence-led, and clear about the basis for any conclusion. A practical framework, not a slogan For us, this is not a slogan. It is a practical framework for how we work and the standard we hold ourselves to. The Nellie Standard affects: how we review instructions; how we decide what evidence is needed; how we identify the relevant legal or professional test; how we support participation; how we record reasoning; how we explain uncertainty; how we structure conclusions. Over time, we will be sharing more about what the Nellie Standard means in practice and how it informs the work we do across Nellie Supports. For now, this introduction marks an important step: making our approach explicit, accountable, and easier for others to understand. Because when people are being asked to rely on professional work, the standard behind it should be visible. Need evidence-led support? If you need a clear, properly reasoned assessment, report, or review, you can explore our main services here: Mental Capacity Assessments COP3 Mental Capacity Assessments NHS Continuing Healthcare Funding Support CHC Appeal Support Court Reports and Expert Assessments If you are unsure what type of assessment or report is needed, contact Nellie Supports and we can help identify the right route before work begins.

When someone may be struggling to make an important decision, one of the first questions families and professionals often ask is: Who is allowed to complete a mental capacity assessment? There is a common misconception that mental capacity assessments must always be completed by a doctor. In reality, this is not always the case. The right assessor depends on the decision being assessed, the reason the assessment is needed, and the type of evidence required. Mental capacity is not assessed in a general way. A person is not simply found to “have capacity” or “lack capacity” for everything. Capacity is decision-specific and time-specific. This means the assessment must focus on the actual decision that needs to be made, at the time it needs to be made. For more formal or complex decisions, it is important that the assessment is completed by someone with the right knowledge, training and practical experience in applying the Mental Capacity Act 2005. Does a mental capacity assessment have to be completed by a doctor? No. A mental capacity assessment does not always have to be completed by a doctor, GP or psychiatrist. Doctors can be important in some cases, especially where there are complex medical or psychiatric issues. Medical evidence may help explain a diagnosis, condition or impairment that could affect the person’s decision-making. However, a mental capacity assessment is not simply a medical opinion . The assessment is about whether the person can make a specific decision for themselves. That means looking at whether they can understand the relevant information, retain it long enough to make the decision, use or weigh it as part of the decision-making process, and communicate their decision. Because of this, doctors are not always the best suited professionals for every capacity assessment. Some decisions are more closely linked to care, welfare, safeguarding, family relationships, finances, property, communication, or the person’s everyday circumstances. In those cases, a suitably qualified social worker or specialist mental capacity assessor may be better placed to complete the assessment. The better question is not: “Is the assessor a doctor?” The better question is: Does this assessor have the right experience for this specific decision? Mental capacity assessments should use the functional test first A good mental capacity assessment should not start with a diagnosis and then work backwards. The correct approach under the Mental Capacity Act is to look first at the person’s ability to make the specific decision. This is often described as the functional part of the test. The assessor should consider whether the person can: understand the information relevant to the decision retain that information long enough to make the decision use or weigh that information as part of the decision-making process communicate their decision by talking, signing, using gestures, assistive technology or any other means Only if the person cannot do one or more of these things does the assessor then consider whether that inability is because of an impairment of, or disturbance in the functioning of, the mind or brain. This distinction matters. Someone may have dementia, a brain injury, a learning disability, a mental health diagnosis or another condition and still be able to make a particular decision. A diagnosis alone does not prove that a person lacks capacity. Equally, someone may be unable to make one decision but able to make another. For example, they may be able to decide what they want to eat, but not be able to make a complex decision about selling a property or managing a large sum of money. This is why capacity assessments must be decision-specific, evidence-based and clearly reasoned. Can a social worker complete a mental capacity assessment? Yes. A social worker can complete a mental capacity assessment where they have the right training, knowledge and experience for the decision being assessed. Social workers often complete mental capacity assessments in relation to care, residence, safeguarding, contact with others, family circumstances, property and financial affairs, Court of Protection matters and deputyship applications. A social worker may be particularly well suited to capacity assessments because they usually look at the person in the context of their real life. They consider the person’s support network, risks, communication needs, wishes, relationships, environment and practical circumstances. This can be especially important where the decision is not purely medical. For example, a decision about where someone should live is not just about diagnosis. It may involve understanding the person’s care needs, safety, relationships, routines, housing options, risks and what support could help them make the decision. Similarly, a decision about managing finances may involve understanding the person’s actual money arrangements, bills, risks, debts, family pressures, vulnerability and ability to weigh consequences. Why experience in mental capacity assessments matters The quality of a mental capacity assessment depends heavily on the assessor’s experience. Professional title alone is not enough. An assessor needs to understand how to apply the Mental Capacity Act test properly, how to identify the specific decision, how to decide what information is relevant, and how to support the person to take part in the assessment. At Nellie Supports, completing mental capacity assessments is one of our team’s main roles. Our assessors regularly complete assessments across a wide range of decisions, including care, residence, finances, property, lasting power of attorney, COP3 forms, deputyship, litigation capacity and Court of Protection matters. That level of practical experience is important because capacity assessments are often nuanced. The assessor must avoid common mistakes such as relying only on diagnosis, assuming a person lacks capacity because they make an unwise decision, or writing a conclusion without explaining the reasoning. In some cases, a GP or doctor may know the person’s medical background well, but may not have the time, format or specialist capacity-assessment experience needed to produce a detailed decision-specific report. Medical evidence may still be useful, but it is not always the same as a full mental capacity assessment. Who can complete a COP3 form? A COP3 form is used in Court of Protection proceedings. It provides evidence about whether a person has capacity to make the decision or decisions in the application. A COP3 form does not have to be completed only by a doctor. The current COP3 form refers to an “appropriate assessor” and gives examples including medical practitioners and social care professionals. This is an important change in emphasis. It recognises that the right professional will depend on the decision being assessed and the expertise needed. For example, some COP3 assessments may involve property and financial affairs. Others may involve welfare, care, contact, residence, litigation or another Court of Protection issue. In some cases, a medical professional may be appropriate. In others, a social worker or specialist mental capacity assessor may be better suited. The assessor completing the COP3 should be able to explain their qualifications, training and practical experience. They should also be able to show that they understand the Mental Capacity Act 2005 and can apply the test properly. Why the assessor’s reasoning matters A mental capacity assessment should not simply state the final answer. A good report should explain how the assessor reached their conclusion. This is especially important where the assessment may be relied on by a solicitor, the Court of Protection, a financial institution, a public body, or family members who disagree. A clear assessment should explain: what decision was being assessed what information was relevant to that decision what support was given to help the person decide what the person said or demonstrated during the assessment whether the person could understand, retain, use or weigh the relevant information whether the person could communicate their decision whether any inability to decide was because of an impairment or disturbance in the functioning of the mind or brain Without this reasoning, a report may be too weak, too general or too unclear for the situation it is being used for. Common mistakes about who can assess capacity There are several common misunderstandings about mental capacity assessments. One is the belief that only a doctor can assess capacity. This is not correct in many situations. Another is the belief that a diagnosis automatically means the person lacks capacity. It does not. Capacity must be assessed in relation to the specific decision. A third mistake is assuming that an unwise decision means the person lacks capacity. People are allowed to make decisions that others disagree with. The key question is whether they can make the decision for themselves, not whether others think the decision is sensible. A further mistake is using someone who does not have enough experience in the type of decision being assessed. For complex, disputed or formal matters, the assessor’s experience can make a significant difference to the quality of the assessment. When might you need a specialist capacity assessor? A specialist capacity assessor may be needed where the decision is complex, disputed, high-value, urgent or likely to be scrutinised. This may include situations involving: Court of Protection applications COP3 forms deputyship property sale or transfer financial decisions lasting power of attorney wills or estate planning litigation capacity care or residence disputes safeguarding concerns family disagreement concerns about undue influence In these cases, the assessment often needs to do more than record a brief opinion. It needs to be structured, decision-specific and capable of being understood by others. So, who is the best person to complete a mental capacity assessment? The best person to complete a mental capacity assessment is the professional with the right expertise for the decision being assessed. Sometimes that will be a doctor. Sometimes it will be a social worker. Sometimes it will be another professional with specialist knowledge of the person’s communication, care, circumstances, risks or decision-making needs. For formal assessments, the assessor should understand the Mental Capacity Act 2005, be able to apply the functional test properly, and be able to explain their reasoning clearly. The key point is this: Mental capacity assessment is not about job title alone. It is about decision-specific expertise, proper application of the MCA test, and clear evidence-based reasoning. Need support with a mental capacity assessment? Nellie Supports provides independent, decision-specific mental capacity assessments for families, solicitors, deputies, attorneys and professionals. Our team regularly completes mental capacity assessments as a core part of our work. This gives us extensive practical experience in applying the Mental Capacity Act test across a wide range of decisions and preparing clear, structured reports for legal, financial, care and Court of Protection purposes. You can learn more about our mental capacity assessment services, or visit our COP3 mental capacity assessment page if the assessment is needed for the Court of Protection.