The Duty to Provide an Independent Advocate

1. What is an Independent Advocate?

An Independent Advocate is an advocate working independently of the Local Authority and appointed under the Care Act. The role of an Independent Advocate is different to the role of a general Advocate because they are not just supporting the person to have a voice, but to facilitate and maximise their involvement in a whole range of adult Care and Support processes.

2. The Duty

Important to know
The advocacy duty under the Care Act applies equally to carers with Support needs and to people with Care and Support needs, regardless of where they live or the nature of the support they receive.
Important to know

There is a duty to make advocacy available under 2 sections of the Care Act-section 67 and section 68. An advocate may be referred to as a section 67 or 68 advocate so it is important to know the distinction.

Section 67: An advocate to support a Care and Support process not related to safeguarding;

Section 68: An advocate to support a safeguarding process.

Under the Care Act, the Local Authority must arrange for an Independent Advocate to be available to represent and support the person (or carer) if:

  1. There is no appropriate other person to support and represent them; and
  2. They feel that the person (or carer) would experience substantial difficulty being fully involved in the Care and Support process without support.

Substantial difficulty applies to one or more of the following areas:

  1. Understanding relevant information relating to the process or function taking place;
  2. Retaining that information;
  3. Using or weighing up that information as part of the process of being involved; or
  4. Communicating their views, wishes or feelings (whether by talking, using sign language or any other means).

3. The Care and Support Processes where the Duty Applies

The Local Authority duty applies when it is:

  1. Carrying out a needs assessment with a person (regardless of whether this is a face to face, telephone, online or supported self-assessment);
  2. Carrying out a carers assessment (regardless of whether this is a face to face, telephone, online or supported self-assessment);
  3. Preparing a Care and Support Plan with the person;
  4. Preparing a Support Plan with a carer;
  5. Revising a Care and Support Plan;
  6. Revising a Support Plan;
  7. Carrying out a child's needs assessment for transition purposes;
  8. Carrying out a child's carer's assessment;
  9. Carrying out a young carer's assessment; and
  10. Safeguarding Enquiry or Review.

4. Determining Substantial Difficulty

The Regulations state that when deciding whether a person would experience substantial difficulty in one of the listed Care and Support processes the Local Authority must have regard to:

  1. Any health condition the person has;
  2. Any learning difficulty the person has;
  3. Any disability the person has;
  4. The degree of complexity of the person's circumstances, whether in relation to their needs for Care and Support (or Support) or otherwise;
  5. Where the assessment or planning function is the carrying out of an assessment (regardless of whether the person or carer has previously refused an assessment or not); and
  6. Whether the person is experiencing, or at risk of, abuse or neglect.
A determination of substantial difficulty is not a determination about mental capacity. Where there are concerns about a person's capacity to be involved in the Care and Support Process or any likely decisions to be made the Local Authority should assess their capacity under the Mental Capacity Act and consider whether an Independent Mental Capacity Advocate (IMCA) should be appointed under the Mental Capacity Act. See Other Types of Advocacy Support that may be Appropriate for further guidance around this

5. An Appropriate Other Person

The duty to make an Independent Advocate available does not apply if the Local Authority is satisfied that there is somebody else who would be an appropriate person to represent and support the person or carer.

Somebody wishing to represent and support the person's (or carer's) involvement may only be deemed appropriate if:

  1. They are not engaged in providing care or treatment for the person they wish to support (in either a professional or paid capacity);
  2. They are not implicated in any enquiry relating to abuse or neglect;
  3. The person they wish to support has capacity and is able to consent to being represented and supported by them; or
  4. Where the person lacks capacity or is not able to consent, the Local Authority is satisfied that being represented and supported by the person wishing to do so would be in their best interests;
  5. The person wishing to represent the person (or carer) has demonstrated that they have adequate direct contact with the person they wish to support in order to do so effectively;
  6. The person wishing to represent the person (or carer) has demonstrated adequate knowledge of the Care and Support process in which they will be supporting them to be involved in;
  7. The person wishing to represent the person (or carer) has demonstrated they are able to act independently from the Local Authority;
  8. The person wishing to represent the person (or carer) is not employed by or involved with the Local Authority in any way;
  9. There is no conflict of interest or dispute between the person (or carer) and the person wishing to represent them; and
  10. Where the person lacks capacity there is no conflict of interest or dispute between the person wishing to represent them and the Local Authority about what is best for the person.
Important to know
It is not sufficient for a person wanting to support and represent a person or carer under the Care Act to know them well or love them deeply. They must demonstrate that they are able to support the person to be actively involved with Local Authority processes.

The Local Authority has the final decision about whether someone is appropriate. If a person is deemed inappropriate this does not mean they cannot be involved in the Care and Support process and should still be consulted (where the person or carer consents or it is deemed by the Local Authority to be in their best interests to consult).

If the Local Authority feels a person may be appropriate but later finds otherwise (perhaps they have not had adequate contact with the person) then the duty to make independent advocacy applies because the person no longer has someone appropriate to support them.

If the Local Authority provides independent advocacy and later finds that a person who they thought was inappropriate is actually appropriate, then the duty to provide independent advocacy no longer applies. However, in this situation the statutory guidance in clear that consideration should be given to continuing the advocacy support if this would be of benefit to the person or carer.

6. Situations When an Independent Advocate must be appointed

In general under the Act, a person with a substantial difficulty in being involved in their assessment, plan or review will only become eligible for an Independent Advocate when there is no other appropriate person to support them. However, the Care Act does specify 3 exceptions to this. In each of the following cases if the Local Authority feels that the person requires support to facilitate and maximise their involvement in the Care and Support process an Independent Advocate must be made available:

  1. Where the person is likely to be accommodated in a NHS hospital for a period of 28 days or more;
  2. Where the person is likely to be accommodated in a residential home or care home for a period of 8 weeks or more; or
  3. Where there is a disagreement or dispute between the Local Authority and person wishing to represent the person or carer and both agree that the involvement of an Independent Advocate would be beneficial to the person.

7. The Appointment of an Independent Advocate

When to appoint an Independent Advocate

Under the Care Act consideration of an advocate should be made at the first point of contact with the person or carer. The Care Act is clear that this is the stage where the assessment begins as information starts to be gathered, and it is therefore where the duty to make independent advocacy available also begins. Where a need for independent advocacy is identified any referral should be made at this point. Not only does this prevent any delays in the Care and Support process and meeting of needs but it also supports the Independent Advocate to fulfil their role effectively. They have extensive and specific duties under the Act and need time to build up rapport with the person, in order to agree how best to support them to be as involved as possible in the Care and Support process.

Important to know
Where a need for an Independent Advocate is identified the Care and Support Process should not proceed without one being appointed. The Local Authority has a duty to ensure independent advocacy is available and it is breach of this duty if advocacy is not available when needed. Care and Support functions undertaken and decisions made in this situation are unlawful and subject to legal challenge. The only exception is where urgent Care and/or Support is being implemented without assessment to meet needs or reduce the risk of abuse and neglect.

Who can be an Independent Advocate

The Local Authority must not make arrangements for a person to be an Independent Advocate unless it is satisfied that the person:

  1. Has appropriate experience;
  2. Has undertaken appropriate training;
  3. Is competent to represent and support the person(or carer) for the purpose of facilitating that their involvement in any listed assessment and planning function (including having adequate knowledge of the persons or carers rights under the Care Act, of Local Authority processes and of support and service options available in the area);
  4. Has integrity and is of good character (including obtaining a Criminal Records Check as part of this test); and
  5. Has arrangements in place to receive appropriate supervision.

Where an Independent Advocate is employed by an advocacy organisation the Local Authority should seek evidence from the organisation to satisfy itself that the person meets the above requirements.

Local Policies for the Appointment of Advocates

Under the Care Act the Local Authority should have specific local policies clarifying arrangements for the:

  1. Appointing of advocates outside of their local area;
  2. Appointing of advocates where people are placed out of the area temporarily; and
  3. Appointing of advocates to support people who move from their area to another area following assessment.

8. The Role of an Independent Advocate

The Care and Support (Independent Advocacy Support (No2)) Regulations 2014 set out clear requirements in relation to the role and function of any Independent Advocate appointed by the Local Authority. Independent advocates must perform their functions to these requirements.

In all Cases

An Independent Advocate must determine in all circumstances how best to represent and support the person, and at all times must act with a view to promoting their Wellbeing.

To the extent that it is practicable and appropriate to do so an Independent Advocate must:

  1. Meet the person in private; and
  2. For the purpose of promoting Wellbeing, and provided that the person has consented, consult with;
    • People who are, or have been, engaged in providing care or treatment for the person in a professional capacity or for remuneration; and
    • Other people who may be in a position to comment on the person's wishes, beliefs or values (e.g. family members, carers or friends).
  3. For the purpose of promoting Wellbeing, where the person lacks capacity to consent, and the Independent Advocate is satisfied it is in their best interests to consult, consult with;
    • People who are, or have been, engaged in providing care or treatment for the person in a professional capacity or for remuneration; and
    • Other people who may be in a position to comment on the person's wishes, beliefs or values (e.g. family members, carers or friends).

An Independent Advocate must assist the person in;

  1. Understanding the purpose of the Care and Support process they are involved in;
  2. Communicating their views, wishes or feelings;
  3. Understanding how their Care and Support needs, (or Support needs in the case of carers) could be met by the Local Authority or otherwise;
  4. Making decisions in respect of Care and Support (or Support) arrangements; and
  5. Challenging the local authorities decisions if the person (or carer) so wishes.

An Independent Advocate must also:

  1. So far as is practicable, make sure the person understands the duties of the Local Authority under the Care Act;
  2. So far as is practicable, make sure the person understands their own rights and obligations under the Care Act;
  3. In the case of carers, to make sure the carer understands their own rights and obligations under the Act, and also the rights and obligations of the person they provide care for;
  4. Make representation as necessary to ensure that the person (or carer's) rights are upheld; and
  5. Where they have concerns about the manner in which the Care and Support function has been completed, prepare a report for the Local Authority outlining the concerns they have. 

An Independent Advocate may examine and take copies of any relevant records (health or social care records) relating to the person when:

  1. The person has capacity, is able to consent and does consent to the records being made available to the Independent Advocate; or
  2. The person does not have capacity and is not able to consent but the Independent Advocate considers it in their best interests for the records to be provided.

Specific Roles when People Lack Capacity

Where the person does not have capacity, or is not able to communicate their views, wishes or feelings, the Independent Advocate must do so to the extent that they can ascertain them.

Where the person does not have capacity, or is not able to challenge a decision made by the Local Authority in relation to the Care and Support function the Independent Advocate must challenge the decision if they consider the Local Authority to be in breach of their general responsibility to promote individual Wellbeing.

Specific Issues for the Independent Advocate to Address in Safeguarding

When supporting a person to maximise their involvement in safeguarding the Independent Advocate should assist the person to:

  1. Decide the outcomes and/or changes they want;
  2. Understand the abusive or neglectful behaviour of others;
  3. Understand the way in which their own actions may have exposed them to the abuse or neglect;
  4. Understand what actions they can take to safeguard themselves;
  5. Understand what advice and help they can expect from others, including the police;
  6. Understand what parts of the process are completely or partially within their control; and
  7. Explain what help they want from others to avoid further abuse or neglect and recover from their experience.

9. How to Work with an Independent Advocate

Where the Local Authority has arranged for an Independent Advocate under the Care Act it must:

  1. Take into account any representations the Independent Advocate makes on behalf of the person (or carer) in relation to how the Care and Support function is being completed and the impact on the person (or carer);
  2. Take reasonable steps to assist the Independent Advocate to fulfil their role, represent and support the person or carer (for example by referring early, setting a timeframe for assessment or review that allows the advocate time to consult with the person and others beforehand or providing records requested by the advocate);
  3. Keep the Independent Advocate informed of any developments and of the outcome of any assessments carried out; and
  4. Provide the Independent Advocate with a written response to any report they have prepared that raises their concerns about the manner in which the Care and Support function has been completed by the Local Authority.
Where the Local Authority has cause, it may make reasonable requests for information from the Independent Advocate in relation to their performance and the functions they have carried out in relation to a particular person or carer. The Independent Advocate must comply with such requests.

10. Combined Advocacy

Where the Local Authority is completing a combined assessment (for example a joint assessment for a person and their carer) and both people being assessed require an Independent Advocate under the Act, the Local Authority can appoint the same Independent Advocate to represent and support both when:

  1. There is no conflict of interest or dispute between the people being assessed; and
  2. There is no conflict of interest or dispute between the Independent Advocate and either of the people being assessed.

Regardless of whether the Local Authority deems the same Independent Advocate appropriate it must provide different advocates when:

  1. Either of the people requests it; or
  2. Any Independent Advocate already supporting one of the people being assessed requests it.

11. Other Types of Advocacy Support that may be Appropriate

Many of the people who are eligible for an Independent Advocate under the Care Act will also be eligible for an Independent Mental Capacity Advocate (IMCA) under the Mental Capacity Act 2005. Some people may be eligible for an Independent Mental Health Advocate (IMHA) under the Mental Health Act 1983.

It is the responsibility of the Local Authority to decide which advocacy support is most appropriate in each situation. In doing so, it must make sure that statutory duties are fulfilled in relation to any specialist advocacy support a person may be entitled to receive under any legislation that affects them.

Independent Advocacy under the Care Act is a lot broader than advocacy under the other Acts and allows more scope for the advocate to support the person with a range of decisions and through a range of processes. To this end an Independent Advocate under the Care Act is often the most appropriate in supporting a person through a Care and Support function.

When a person has substantial difficulty being involved in the Care and Support process being carried out but the Local Authority anticipates that at some point a major decision will be required (for example about medical treatment or where a person lives) that the person lacks capacity to make, it may be prudent to refer instead for an IMCA under the Mental Capacity Act to support the Care and Support process leading up to that decision.  Many advocates that provide a service under the Care Act will also be able to provide advocacy under the Mental Capacity Act. The commissioning arrangements in place for advocates should support some flexibility and ability to adapt the nature of advocacy to best meet the support needs of the person or carer.

Where an IMCA or IMHA is already supporting a person with a particular decision or through a particular process and the need for Care Act advocacy is identified the statutory guidance states that the Local Authority may liaise with the advocate already involved to establish whether they are appropriate and able to support the person under the Care Act. This enables a seamless advocacy service for the person and prevents them having to repeat their story to different advocates.

12. The Advocacy Duty where the Person or Carer Does not engage with the Advocate

The Local Authority has a duty to arrange independent advocacy under the Care Act whenever it is needed. This is regardless of whether the person or carer wishes to be supported by an Independent Advocate. If the person or carer chooses not to engage with the Independent Advocate they do not have to do so but the Local Authority must still make one available to them.

When the Local Authority becomes aware that a person or carer may be eligible for an Independent Advocate they should provide them with information about the advocacy role in an accessible and positive way, to support the person or carer to understand the benefits of an Independent Advocate in their situation and what to expect from their involvement. This will reduce the risk that the person will choose not to engage with the Independent Advocate and ensure their involvement in the Care and Support process is maximised.