Statutory guidance establishes the importance of the individual participating as fully as possible in decisions about them (1.14(e)). There will be situations where an individual may require additional support to enable this to happen.
Through the provision of information and advice, local authorities must inform an individual of their right to and purpose of independent advocacy, which is to maximize the person’s involvement in the process and facilitate the ability to understand information and advice, retain it, use it to weigh up the options and communicate their preferences.
Section 67 contains statutory triggers to support an adult or carer who is identified as having ‘substantial difficulties’ with engaging in Care Act processes, for example, assessment of needs, care and support planning, revisions to care plans, and safeguarding (as well as transition assessments and related processes). The test is on the assumption that there was no independent advocate available, but even if this test is met, the duty gives way to help from an informal supporter, instead. So the support may be provided through identifying an appropriate individual or in default, the provision of independently funded advocacy.
To identify if an individual would have substantial difficulties, a local authority must have regard to the person’s circumstances including any health-related concerns, disability, the degree of complexity of the circumstances, and if the individual was subject to or at risk of abuse or neglect. (See The Care and Support (Independent Advocacy) no. 2 Regs (3)).
The Care Act presumes that an informal (free) but appropriate supporter is to be preferred, by the adult or carer, but only if that person is willing and appropriate for the role. This is expressed in s67 of the Act.
(5) The duty under subsection (2) [ie to provide the independent advocate] does not apply if the local authority is satisfied that there is a person—
- who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and
- who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration. [because this sets up an assumed conflict of interest]
(6) For the purposes of subsection (5), a person [ie one who is willing and not excluded by being paid for care and treatment – so an informal supporter, such as a friend, relative or volunteer] is not to be regarded as an appropriate person unless—
- where the individual has capacity or is competent to consent [this is referring to a child under 16], to being represented and supported by that person [so it is not the advocacy that needs to be consented to, but the informal support by the friend, relative or volunteer] the individual does so consent, or
- where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by that person would be in the individual’s best interests [so the local authority has a veto in the case of incapacity, or is otherwise the decision-maker whose approval is needed.].
To be deemed appropriate an individual will need to understand that the role is to facilitate and maximise the adult or carer’s involvement in the Care Act process. The person with substantial difficulties – where that is the situation, rather than lack of capacity – is only able to be helped in this way if they consent to their relative doing it.
That’s separate from whether the informal support is actually useful, and for maximum benefit they both need to understand why the appropriate individual is going to support the person, and accept their providing it.
The usefulness of the support will also rely upon the knowledge base of the friend, relative or volunteer, of course, regarding not just their knowledge of the person but their knowledge of the Care Act and Guidance, and how public law works.
There are provisions in the Care Act advocacy regulations where even if a person does have an informal supporter willing and able to help involve the client, who consents, the council is still virtually obliged and empowered to appoint a formal advocate in any event – as a sort of buffer – i.e. in situations of known ‘material disagreement’ between the council and the aspiring informal supporter, in advance. See regulation 4.
If an appropriate individual can not be identified, the local authority must provide independently funded advocacy of someone suitably experienced, competent and trained (regs 2(1)) with access to supervision, who must not be involved in any paid capacity with the individual concerned or their carer, (Regs 2(2)) NOR employed by, or otherwise working for, the local authority [this is somewhat ambiguous, in terms of whether that means personally, or through an organisation, or what…].
Failure to comply with ensuring appropriate support or an independent advocate in place would render invalid any decision made where advocacy was objectively obviously required to be in place or had not been considered. (Haringey, 2015). The duty is not one where a shortage of financial resources is a legal excuse or defense for not discharging the duty. It’s what the council’s ‘reserves’ are for, in legal terms, because it’s a duty for those acknowledged to have substantial difficulties, and for those people whom no reasonable council could regard as being without such difficulties, on the facts.
Reg 5(6) of the Care and Support (Independent Advocacy Support) Regulations 2014 stipulates that an Independent advocate may examine and take copies of any relevant records relating to the individual in circumstances where—
(a) the individual has capacity, or is competent, to consent to the records being made available to the independent advocate and does so consent; or
(b) the individual does not have capacity or is not competent to consent to the records being made available to the independent advocate but the independent advocate considers it is in the best interest of the individual.
[This is a statutory overriding of the data holder’s decision-making power, in the context of incapacity.
This right is not extended to a person acting in the capacity of an appropriate individual, so this is another good reason for stepping back from informal support, and saying ‘my son would need an advocate, because they have a right to access to all records, whereas I won’t, so it will be better for him to have an advocate as well as me through involvement as a carer or consultation as a best interests consultee.’].
Section 67(9) outlines relevant records means –
a) a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)),
b) a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the meaning given in section 1A of the Local Authority Social Services Act 1970) [which would include s117 Mental Health Act 1983]
c) a record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008, or
d) a record of such other description as may be specified in the regulations.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/part/1/crossheading/independent-advocacy-support
Secondary legislation: https://www.legislation.gov.uk/uksi/2014/2824/pdfs/uksi_20142824_en.pdf
Statutory guidance: Chapter 7 https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#Chapter7