The Duty to Provide an Independent Advocate

An Independent Advocate is a professional advocate appointed by but independent of the Local Authority. Under the Care Act, the Local Authority must appoint an Independent Advocate when it is carrying out certain statutory functions with a person (or carer) that it feels will find engaging in processes difficult and is without other appropriate representation (see section 2 below). The role of an Independent Advocate is different to the role of a general Advocate because they are not just supporting the person (or carer) to have a voice, but to facilitate and ensure their involvement in a whole range of adult Care and Support processes.

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

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).

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;
4. Preparing a Support Plan;
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. Carrying out a Safeguarding Enquiry or a Safeguarding Adults Review.

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 consideration should be given to 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. In some cases, the duty to appoint an Independent Advocate will arise under both the Care Act and the Mental Capacity Act. If appropriately qualified, the same Independent Advocate can fulfil both roles if they are willing to do so and it is deemed in the person’s best interests.

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 will only be 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 consents to being represented and supported by them; or
4. Where the person lacks capacity to consent, the Local Authority is satisfied that being represented and supported by them would be in their best interests;
5. They have sufficient direct contact with the person (or carer) they wish to support in order to do so effectively;
6. They understand the relevant Care and Support processes taking place;
7. There is no conflict of interest or dispute with the person (or carer) they wish to represent.

It is also important that there is no conflict of interest or dispute between the individual wishing to support the person (or carer) and the Local Authority. Where there is a disagreement on a material issue, consideration must be given to appointing an Independent Advocate.

If the Local Authority initially agreed that a person was appropriate but later finds otherwise (perhaps because they have not had adequate contact with the person or carer) then the duty to arrange an Independent Advocate will apply because the person (or carer) no longer has someone appropriate to support them.

If the Local Authority appoints an Independent Advocate and later finds that a person who it initially 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.

In general, under the Care Act, a person or carer 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 and represent them. However, the Care Act does specify 3 exceptions to this:

1. Where a person is likely to be accommodated in a NHS hospital for a period of 28 days or more;
2. Where a 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.

In each of the above cases, an Independent Advocate must be appointed if the Local Authority:

1. Feels that the person requires support to facilitate and ensure their involvement in the Care and Support process; and
2. Is satisfied that it would be beneficial (or in the best interests of a person that lacks capacity) to appoint 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.

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, or meetings with, 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.

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.

However, the Local Authority must provide different advocates when:

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

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. If appropriately qualified, the same Independent Advocate can fulfil multiple roles if they are willing to do so and the person consents (or it is deemed in their best interests if they lack capacity to consent).

In all cases, the Local Authority must make sure that all 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 flexibility and be able 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.

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 (or carer) will choose not to engage with the Independent Advocate and help to ensure their involvement in the Care and Support process.