What to Say If: you’re told that you aren’t eligible for a funded advocate under the Care Act

People have a right to advocacy – independent funded advocacy – under the Care Act, if they have substantial difficulty with regard to the processes in the Act where councils are required to INVOLVE people before making a decision.

So it’s not an absolute right, as such, but a right that flows from a professional judgement about someone’s cognitive impairment in relation to the purpose of the process – and only in a given context of a Care Act decision needing to be made. 

Generic advocacy or non statutory advocacy is something else: the council may well pay for it, but you can go straight to that organisation and get an advocate, if you are lucky, whereas independent funded advocacy can only be called off or allocated/granted, etc, by a local authority decision-maker. 

The processes are assessment, care planning, the thinking at the end of a review, and any revision of a care plan (as well as safeguarding).

There are other facts that can negate the right to have an independent funded advocate. 

Consenting to one’s own relative or friend, acting for one, informally, is one way to miss out on an advocate. 

Don’t let yourself be manoeuvred into missing out. There aren’t enough advocates and they aren’t paid enough for the job they do, but most of them are really ethical and moral people who want to see good being done. 

So, if someone says you’re not entitled to an advocate, say this: 

  • Why, please? I think the statute says that I don’t have to have a relative do it for me, and I’d prefer to have an expert in the process. I think that you may have just assumed I’ll be happy having my relative supporting my involvement but that is not in fact correct. I will involve them as carers or best interests consultees, thanks, but I want the support of an advocate. 
  • I know that an advocate has rights to records, which my own relatives won’t find easy to assert. 
  • Do you not think that I would have substantial difficulty, being fair and taking everything you know about my impairment, into account? It’s not legal to say that I only get an advocate if I lack mental capacity in some way.
  • The law is clear that a Care Act process, where there should have been an advocate, but there wasn’t one, is not a valid legal delivery of the duty to do that process. 

If someone says “We’d like to give you an advocate, but we haven’t got any available at the moment”, say this:

  • The Haringey case says that lack of resources is not an excuse for not doing a statutory duty, and I think that the council has a duty to find the resources, with all due respect. Because otherwise, my assessment would be delayed. And the eligibility decision would be delayed, and care planning and signing off of a budget might be delayed, and that wouldn’t be right, would it?

If someone says you HAVE to have an advocate, ask them very carefully why they are saying that, and what the source of their power is to say that, if you think you know your own mind and don’t want one. The reason may have something to do with your relatives, and you need to get the explicit reason out of the council, before doing anything further.