The Care Act 2014 gives people the right to access an independent advocate to help them be involved in an assessment of needs, in the preparation of their care and support plan and in the review of their care and support plan if two conditions are met:
- The person has substantial difficulty in being fully involved in these processes and
- There is no one appropriate available to help them.
The person is also entitled to the support of an advocate to help them make use of advice and information or to make a complaint (see Feedback About Adult Social Care).
This right is substantially different to the right to an Independent Mental Capacity Advocate (IMCA) conferred by the Mental Capacity Act 2005 or an Independent Mental Health Advocate (IMHA) conferred by the Mental Health Act 1983.
A person may feel they would benefit from the services of an independent advocate in other areas of their life, but the local authority is only required to fund one if the conditions in the Care Act are met. Any agreement to fund further advocacy would depend on the person’s particular circumstances and would be the exception rather than the rule.
2. The Role of an Independent Advocate
The role of the independent advocate is to support and represent the adult and to facilitate their involvement in the key processes and interactions with the local authority. The ultimate aim is for the person’s wishes, feelings and needs to be at the heart of the assessment, care planning and review processes.
3. When and for whom an Advocate must be Appointed
The worker should use their professional skills to give all practicable support to the person to enable them to participate in the assessment, support planning and review process before concluding that the person is experiencing substantial difficulty.
A person experiences substantial difficulty if they cannot carry out a task even with support, or if doing so causes significant distress, anxiety or pain. The Care Act defines four areas where substantial difficulty in engaging with the care and support process may be found:
- Understanding relevant information;
- Retaining information;
- Using or weighing the information as part of engaging;
- Communicating their views, wishes or feelings.
The adult may have a friend or family member to support and represent them and this should be encouraged unless it appears that the representative is putting forward their own views and not those of the adult. In the interests of promoting independence and self-reliance, the adult should be encouraged to make use of their existing support networks wherever possible and only if there is no one available who is suitable, willing and able to support and represent the adult should an independent advocate be considered.
An adult who needs the support of an advocate is entitled to have one appointed to help them to engage with any part of the care and support process, but the decision about the need for advocacy is time specific; that is the person may need the support of an advocate at some times and not others. For example, an adult at the point of contact may be experiencing such a high degree of distress and anxiety about their condition and circumstances that it renders them unable to fully participate in the assessment and support planning process and leaving them in need of an independent advocate. By the time of the first review, their distress and anxiety may have lessened to the point that they are able to participate, meaning they no longer need an advocate. The need for advocacy should be reviewed as part of the usual process of reviewing the care and support plan.
4. Independent Advocacy and other forms of Representation
An adult who is entitled to the support of an independent advocate may also be entitled to the support of an IMCA, an IMHA or an interpreter. These roles are all very different and have different criteria governing their use, but if the adult wants the same person to fulfil multiple roles, then subject to qualification, this is perfectly acceptable.
5. Funding for Advocacy
If a person is likely to need an advocate for the foreseeable future, the funding for this should be identified and agreed as part of the personal budget setting process. If someone needs an independent advocate to support and represent them in the assessment and support planning processes, it is unlikely they would have a personal budget at that point; an application for funding for advocacy must be made to the Team Manager.