Local authorities must involve people in decisions made about them and their care and support. Involvement requires the local authority helping people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support planning and review, or safeguarding. The duty to involve applies in all settings, including those people living in the community and in care homes, and also in prisons for example.
The aim of the duty to provide independent advocacy is to enable people who have substantial difficulty in being involved in these local authority processes to be supported in that involvement as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf. The Care Act defines four areas in any one of which a substantial difficulty in being involved might be found:
In general, a person who has substantial difficulty in being involved in their assessment, plan or review, will only become eligible for an independent advocate where there is no one else appropriate to support their involvement. However, the provision of an advocate, even where they have family or others who can facilitate the person’s involvement, may be required by the Care Act and appropriate in certain circumstances, for example where they are at risk of harm. There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or safeguarding adults review (SAR).
The Care Act places a duty on local authorities to provide an information and advice service that is available to all people. Prior to an assessment with the local authority, there may be some people who require independent advocacy to access information and advice. Local authorities will need to consider such needs in ensuring that the information and advice service is accessible.
The Care Act extends the range of situations and people to whom there is a duty to make advocacy available. Nothing in the Care Act prevents advocacy being provided in other circumstances.
Independent advocates have two main functions: to support the person to make their own decisions and be as involved as possible; and to represent them, which may involve speaking on their behalf. The independent advocate must ‘advocate’ on the person’s behalf, to put their case, to scrutinise the options, to question the plans if they do not appear to meet all eligible needs or do not meet them in a way that fits with the person’s wishes and feelings, or are not the least restrictive of people’s lives, and to challenge local authority decisions where necessary. The ultimate goal of this representation is to secure a person’s rights, promote the person’s well-being and ensure that their wishes are taken fully into account.
The local authority is expected to recognise that an advocate’s role incorporates challenge on behalf of the person, and the local authority must take into account any representations made by an advocate. The local authority should take reasonable steps to assist the independent advocate in carrying out their role.