What is Independent Advocacy?

This resource provides information on advocacy within the context of social care and the Care Act 2014. Advocacy support should also be provided in other situations, such as Deprivation of Liberty Safeguards. 

In certain situations, local authorities must arrange independent advocacy support to facilitate the involvement of a person in their assessment , in the preparation of their care and support plan, review of their care and support plan as well as in safeguarding enquiries. 

People with a learning disability may sometimes find it difficult to understand the intricacies of the care and support processes and voice their own beliefs and concerns. The role of an independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required.

There are two criteria for eligibility for an independent advocate. A person should meet both criteria to qualify for support through independent advocacy.

1. That the person would have ‘substantial difficulty’ in being fully involved in the process without the provision of an independent advocate, and
    
2. That there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. An appropriate individual may be a family member or friend who is able to understand the complexities of the social care processes.

A local authority is under a duty to provide an independent advocate if both criteria 
are met.

Prior to making contact with the local authority, there may be some people who require independent advocacy to access any information and advice. Local authorities will need to consider such needs in ensuring that the information and advice service is accessible . The advocacy duty therefore applies from the point of first contact with the local authority and continues throughout the processes.

Once a person has contacted the local authority, or come to the local authority’s attention as a result of a safeguarding concern, they must be actively involved in identifying their needs through assessment, in developing their care and support plan, and in leading their care reviews, where relevant, and being involved in any safeguarding enquiry or Safeguarding Adults Review.

The aim of the duty to provide advocacy is to enable people who have substantial difficulty in being involved in these 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 main processes involved under the Care Act 2014 are: 

• A needs assessment under section 9 of the Care Act
• A carer’s assessment under section 10
• The preparation of a care and support plan or support plan under section 25
• A review of care and support plan or support plan under section 27
• A child’s needs assessment under section 58
• A child’s carer’s assessment under section 60 (therefore some people below 16 years of age)
• A young carer’s assessment under section 63
• Safeguarding under section 68

Yes. The duty applies in all settings, including for those people living in the community , in care homes or, apart from safeguarding enquiries and Safeguarding Adult Reviews, in prisons. Prisons have a separate and internal policy on safeguarding advocacy.

The Care Act defines four areas, in any one of which a substantial difficulty might be found, which are set out below.

1. Understanding relevant information
   Many people can be supported to understand relevant information if it is presented appropriately and if time is taken to explain it. Some people, however, will not be able to understand relevant information.
    
2. Retaining information 
   If a person is unable to retain information long enough to be able to weigh up options and make decisions, then they are likely to have substantial difficulty in engaging and being involved in the process.
    
3. Using or weighing the information as part of engaging
   A person must be able to weigh up information in order to participate fully and express preferences for or choose between options. 
   
   For example, they need to be able to weigh up the advantages and disadvantages of moving into a care home or terminating an undermining relationship. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.
    
4. Communicating their views, wishes and feelings
   A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process. 
   
   For example, a person with significant learning disabilities may be considered to have substantial difficulty in communicating their views, wishes and feelings. But equally a person with Asperger’s may be considered, as may a frail older person who does not have any diagnosis but is confused as a result of an infection, or a person who is near the end of their life and appears disengaged from involvement and decision-making. Within this context, it is the person’s ability to communicate their views, wishes and feelings which is fundamental to their involvement rather than the diagnosis or specific condition. 
   
   Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate in order to communicate their views, wishes and feelings.

That is correct. It is a common misconception that a person must be deemed as lacking mental capacity in order to qualify for an independent advocate. As long as the person has substantial difficulty, and there is no appropriate individual to assist them, the person should be appointed with an independent advocate. 

If it has been concluded that a person has substantial difficulty in being involved, a local authority must then consider whether there is an appropriate individual to facilitate the person’s involvement.

This involves three considerations:

1. It cannot be someone who is already providing the person with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them). That means it cannot be, for example, the person’s GP, nurse, key worker or care and support worker .
    
2. The person’s wish not to be supported by that individual should be respected.
   Where a person does not wish to be supported by a relative, for example, perhaps because they wish to be moving towards independence from their family, then the local authority cannot consider the relative appropriate.
    
3. The appropriate individual is expected to support and represent the person and to facilitate their involvement in the processes. It is unlikely that some people will be able to fulfil this role easily, for instance a family member who lives at a distance and who only has occasional contact with the person, a spouse who also finds it difficult to understand the local authority processes, a friend who expresses strong opinions of her own prior to finding out those of the individual concerned, or a housebound parent.

If there is no appropriate individual available, an independent advocate must be appointed.

Jacinta is 26 and lives with her mother and father. She has 2 siblings aged 28 and 23 who have left the family home. Jacinta would also like to move to living more independently. Jacinta has moderate learning disabilities and finds it hard to retain information. Jacinta’s parents are very worried that she won’t be able to cope living in her own home and are against her doing so. In these circumstances Jacinta’s parents would not be ‘an appropriate person’ who could effectively represent and support her involvement.

In this situation, an independent advocate would be appointed for Jacinta. 

Source: Care and Support Statutory Guidance