Much to the delight and relief of numerous campaigning organisations, the Care Act 2014 introduced ‘independent advocates’ when it came into force in April 2015. The ‘no decision about me without me’ principles of the Act reflected the intention for individuals to fully engage with and contribute to their care through early engagement and independent support.
As is the case throughout the Care Act, the language in ‘Section 67: Independent Advocacy support’ is user-friendly and the obligation on the local authority is non-negotiable.
“The authority must arrange for an independent advocate to be available to represent and support the individual for the purpose of facilitating the individual’s involvement” where, in their absence, the individual would “experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means)”.
Indeed, in September 2015, a High Court judge criticised the London Borough of Haringey for failing to provide an independent advocate to a resident of the borough when, in his opinion, the requirement to provide one “could not be clearer”.
The only exception to the requirement is where there is a person present, not providing professional care to the individual, who would be appropriate and to whom the individual does not object. Even then, where there is a conflict between the appropriate person and the local authority, an independent advocate should be brought in to resolve the issue. Likewise, the local authority must bring in an advocate if it would be in the individual’s best interests when considering NHS funding of a 4 week plus stay in hospital or an 8 week plus stay in a care home.
The Care Act came into force in the midst of the Government’s austerity drive and at a time of great pressure on local authorities. Unlike with the introduction of Independent Mental Capacity Advocates, the Government did not offer additional budget allocation for independent advocates. The clear implication was that the already overstretched local authorities would have no choice but to find the money from existing funding streams.
The concern from the same organisations who had campaigned for its introduction was that independent advocacy was being brought in without any realistic chance of success. Commentators pointed to how unlikely it would be that local authorities could be held to account; that the Courts would be sympathetic to the simple fact that resources were spread thin enough and that additional duties could not be met.
So far, however, the introduction of independent advocacy provision is being viewed with cautious optimism. Local authorities who fail in their duties are being held to account – the aforementioned case involving the London Borough of Haringey was in fact the first legal challenge to any aspect of the Care Act and successfully reinforced local authorities’ non-negotiable duties. Another example, Merton Council’s swift u-turn after releasing a consultation paper on adult social care (which stated that ‘significant savings’ had to be made which would impact on their ability to meet their Care Act obligations), demonstrated the power of an Act which had the heavy burden of being described as “the biggest change to the law in 60 years”.
That it may just succeed in being that change, and that this success is demonstrated by the provision of a resource which gives voice to the most vulnerable, is surely worth celebration. Prepared to scrutinise and challenge when obligations aren’t met, certainly, but for now we remain cautiously optimistic.