Advocacy under the Care Act
Slides to accompany taught sessions
About the course
This course is for people who want to learn how to deliver
advocacy support introduced under the Care Act 2015.
It supports the delivery of Unit 313 Providing Advocacy under
the Care Act*:
*(City & Guilds 3610 Certificate and Diploma in Independent
Advocacy)
The Care Act 2014
What is well being?
Wellbeing
The Care introduces principles of wellbeing and prevention and
the recognition that an individual, their family, and/or carer must
be enabled to make decisions regarding their own care.
This means that local authorities will need to refocus their
activities from providing ‘one- size-fits-all’ services to promoting
wellbeing by paying attention to people’s strengths, personalities
and connections with the places they live.
What is wellbeing?
Having a sense of
PERSONAL DIGNITY
Having good PHYSICAL
AND MENTAL HEALTH
(EMOTIONAL WELLBEING)
Being able to
CONTRIBUTE TO SOCIETY
Having suitable LIVING
ACCOMODATION
Being PROTECTED FROM
ABUSE AND NEGLECT
Having CONTROL OVER
my DAY TO DAY LIFE
Being able to PARTICIPATE IN
WORK, EDUCATION,
TRAINING OR RECREATION
Having a sense of SOCIAL AND
ECONOMIC WELLBEING
Being able to experience DOMESTIC,
FAMILY AND PERSONAL RELATIONSHIPS
Advocates and wellbeing
• How can an advocate support a person to establish their own
definition of wellbeing?
• What are effective questions to use to help the person think
about what promotes and what threatens their wellbeing?
• How does this change if they cannot clearly instruct you or do
not understand ‘wellbeing’?
Eligibility
Who is eligible under the
Care Act to receive
Independent Advocacy support?
Advocacy under the Care Act
The duty to provide independent advocacy applies to:
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Adults who need care and support
Carers of adults (including young carers)
Carers of children in transition
Children who are approaching the transition to adult services
during the processes of assessment, care and support planning,
care and support review, safeguarding enquires and safeguarding
adult reviews
Advocacy under the Care Act
But not everyone is entitled to an independent advocate. Two
conditions must be met:
• The person has substantial difficulty in being fully involved
within assessment, care and support planning and review or
safeguarding AND
• There is no one appropriate and available to support and
represent their wishes
Lets look at ‘substantial difficulty’ and ‘who is appropriate’ in
more detail….
Substantial Difficulty
The Care Act defines four areas, in any one of which, substantial
difficulty might be found. These are:
• understanding relevant information
• retaining information
• using or weighing up the information (as part of being
involved in the key process)
• communicating their views, wishes and feelings.
Appropriate to support?
The local authority must decide if the individual has anyone who
can facilitate their active involvement within the decision making
process
It is not enough to know the person well, or to love them deeply,
the role of the appropriate person is to support their active
involvement. Paid people cannot undertake this role.
Not everyone can do this….
Appropriate to support?
Individuals may not have anyone appropriate to support their
involvement because they do not have family or friends who:
• Know them very well
• Agree to offer this support
• Are able to offer this support (they themselves could have a
learning difficulty or dementia which prevents them from
offering support)
• Are appropriate (they are suspected of abusing the person)
• Are not able to help the person put forward their own view
(they have strong feelings and views on what the decision
should be and do not support the person to express their
aspirations)
That’s not all….
The local authority must arrange an Independent Advocate, even
if the person has someone appropriate where:
• A placement is being considered in NHS funded provision in a
hospital (for a period exceeding 4 wks) or a care home (for a
period exceeding 8 wks) and the LA believes that it would be
in the best interests of the individual to receive advocacy
• There is disagreement between the LA and the appropriate
person, and they both agree that the involvement of an
independent advocate would be beneficial to the individual
In addition, there are proposals to offer independent advocacy
to people who wish to appeal against the LA decision
The Advocacy Role
Independent advocates will offer support to the person in:
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Understanding processes
Understanding rights
Making decisions
Communicating views, wishes and feelings
Understanding plans
Challenging decisions
Accessing records
Supported Decision Making
Supported decision making
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A model to support people to make their own decisions
Draws on people (natural allies) to offer support
Advocates can play an important part
You support the individual to gather, understand and consider
information they feel is relevant
• Goal is for the person to make the decision
Supported decision making
Is important because it:
• Promotes rights (UN Convention on Rights of People with
Disabilities)
• Helps people to take risks
• Recognises that you know what is best for you
• Helps people to take control of their life
Substituted decision making
• The Mental Capacity Act provides a framework for others to
make decisions when a person is unable to make some or all
decisions for themselves
• 5 guiding principles
• There are some concerns that the MCA is not compatible with
the UNCPRD
Example of practical resource
• Think Local Act Personal have produced a booklet advocates
can use with individuals when using supported decision
making
• http://www.thinklocalactpersonal.org.uk/_library/Resources/
Personalisation/london/Supported_Decision_Making.pdf
Assessment
The Advocacy Role within the
Assessment Process
What is the assessment process
An assessment is how a local authority decides whether a person
needs care and support to help them live their day-to-day life.
The assessment must be carried out by an appropriately trained
assessor, for instance a social worker, who will consider a
number of factors, such as:
• the person’s needs and how they impact on wellbeing – e.g a
need for help with getting dressed or support to get to work
• the outcomes that matter to the person – for example,
whether they are lonely and want to make new friends
• the person’s other circumstances - for example, whether they
live alone or whether someone supports them
What are the requirements for assessment?
The assessment:
• must be provided to all people who appear to need care and
support, regardless of their finances or whether the local
authority thinks their needs will be eligible
• must be of the adult’s needs and how they impact on their
wellbeing, and the outcomes they want to achieve
• must be carried out with involvement from the adult and,
where appropriate, their carer or someone else they
nominate, including an independent advocate
Additional requirements:
• The local authority must consider other things besides
services that can contribute to the desired outcomes.
• The assessment must be appropriate and proportionate
• Assessors must have appropriate training, for instance experts
should carry out complex assessments such as for people who
are deafblind.
• If the person agrees and has capacity, they may also carry out
a self-assessment, where the person takes the lead in
identifying their needs and outcomes.
Ruth is 78 years old and lives alone in a house that she used to share with her
husband (who died 6 months ago). She suffers from serious respiratory problems,
is frail and has restricted mobility. She has been referred by the GP for pulmonary
rehabilitation but her care needs are being assessed because the GP has
expressed concern about her ability to continue to manage at home on her own.
Trudi lives at home with her husband who provides care and support for most of her
needs. She is unable to get out of bed and uses the only downstairs room as a bedroom.
She is having an assessment after a neighbour called the local authority and asked for help.
Felipe is 42 and has motor neurone disease (MND). Whilst he has full mental capacity the
MND makes communication very difficult. He has requested an assessment as he feels his
needs have recently increased. He has a clear idea about his needs and how these can be
met and is meeting an advocate to help him express these.
John has fluctuating needs and is looked after by his son who has mental health needs.
They get on very well together and appear to be asking for the same things: respite
support and employing a PA to help with cooking and cleaning
Krista is the early stages of dementia. She can communicate well but has some
problems remembering information. Her son contacted the local authority to ask
for help after Krista scolded herself and kept forgetting to turn the oven off.
Eligible needs
In considering whether an adult with care and support needs has
eligible needs, local authorities must consider whether:
• The adult’s needs arise from or are related to a physical or
mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve
two or more of the specified outcomes (which are described
next slide)
• As a consequence of being unable to achieve these outcomes
there is, or there is likely to be, a significant impact on the
adult’s wellbeing.
An adult’s needs are only eligible where they meet all 3 conditions
Outcomes
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Maintain and maintaining nutrition
Maintain personal hygiene
Managing toilet needs
Being appropriately clothed
Being able to make use of the home safely
Maintaining a habitable environment
Developing and maintaining relationships
Accessing and engaging in work, training, education or
volunteering
• Making use of facilities and services in local community
• Carrying out caring responsibilities
Carers (eligible needs)
The Act also introduces a national carers’ eligibility threshold as
carers can be eligible for support in their own right regardless of
whether the person for whom they care has eligible needs.
Carers will be eligible for support if:
• they have needs due to providing necessary care for an adult
• as a result of those needs they are unable to achieve one or
more specified outcomes (see next slide) or their health is (or
is at risk of) deteriorating; and
• as a consequence there is a significant impact on their
wellbeing.
Outcomes (carers eligible needs)
• Carrying out any caring responsibilities the carer has for a
child
• Providing care to other persons for whom the carer provides
care
• Maintaining a habitable home environment
• Managing and maintaining nutrition
• Developing and maintaining family or other significant
personal relationships
• Engaging in work, training education or volunteering
Following assessment (eligible needs)
The person must be given a copy of the assessment. A copy
must also be shared with anyone else the individual requests the
local authority to share a copy with.
If the local authority is required to meet needs or decides to do
so it must:
• prepare a care and support plan or, or support plan,
• tell the person which (if any) of the needs that it is going to
meet in the person’s case may be met by direct payments,
and
• help the person with deciding how to have their needs met.
Following assessment (ineligible needs)
If the local authority has completed the needs or carer’s
assessment but is not required to meet those needs and decides
not to, it must give the person concerned
• written reasons for not meeting needs,
• advice and information about what can be done to meet or
reduce the needs;
• what can be done to prevent/delay development of needs in
the future.
The advocate can remain involved under the Act to help the
person understand the decision, support a person who wants to
appeal or to challenge the decision if the advocate feels the
process or decision was not in line with legislative frameworks.
Making the advocacy offer
• At the point of first contact, the local authority must consider
if the person should be offered advocacy support
• If local authority decides the person is not eligible they should
provide the person with information about this decision and
where to go for further advice
Care and Support Planning
Advocacy role within the care
and support planning process
Person centred planning
Under the Care Act, care planning can be undertaken in flexible
and proportionate ways led by the adult concerned. It can be
undertaken by the adult themselves, their carer, family or
friends, or by a specialist broker or support organisation as
requested/ organised by the person accessing services.
However, whilst the care and support plan can be worked on by
any of the above people in conjunction with the Council, the
decision as to the appropriateness of the plan (sign-off) rests
with the Council.
Person centred care and support
planning
• Everyone’s needs for care and support are different, and
needs can be met in many different ways
• The process must involve the the person, any carer they have
and any other person they ask the authority to involve,
including the advocate
• The local authority must produce a plan that sets out the
detail of what was agreed.
Personal budget
Plans must include information about the personal budget
Local authorities must provide information to the person about
their right to request direct payment – and which eligible needs
the DP can be used against
Meeting needs
Meeting needs’ is an important concept under the Act and
moves away from previous terminology of ‘providing services’
Some examples of how the LA can meet needs could include:
• the local authority directly providing some type of support,
for eg a reablement or short-term respite service;
• the local authority arranging for a care and support provider,
for eg by commissioning or contracting with a provider;
• making a direct payment, which allows the person to
purchase their own care and support; or
• some combination of the above
What is included within the plan
The following elements must always be included in the final plan.
• the needs identified by the assessment;
• whether, and to what extent, needs meet eligibility criteria;
• the needs that the authority will meet, and how it will do so;
• for a person needing care, which of the outcomes care and
support could be relevant;
• for a carer, the outcomes the carer wishes to achieve,
• the personal budget
• information and advice on how to reduce needs or delay the
development of needs in the future;
• Information on the direct payment
Planning for people without capacity
• Principles of the Care Act and Mental Capacity act apply if the
person lacks capacity
• Capacity must be assumed unless otherwise established
• All practicable support must be offered
• People have a right to make unwise decisions
• Decisions must be taken to promote best interests
Role of advocate
When supporting a person who lacks capacity to agree or
consent to the care plan, the role of the independent advocate is
to:
• support and represent the person to facilitate their
involvement in decision-making in the care planning process;
• assist the person in communicating their wishes, feelings,
value and aspirations where possible; and
• to challenge the local authority’s decisions if necessary to
represent the person’s wishes or to promote the person’s
wellbeing and rights to security, liberty and family life.
Deprivation of Liberty
Advocates will need to:
• Check compliance with principles of the MCA
• Check if any restrictions or restraints lead (or may lead) to a
deprivation of liberty
• Raise concerns directly with the LA if they are concerned
there is a risk of deprivation of liberty which has not been
authorised
• The advocate may make an application to the COP
The advocates’ role within planning
Potentially 4 approaches the advocate can take:
Instructed:
• Supporting a person to write the plan themselves
• Representing a person (with capacity)
Non instructed:
• Representing a person (without capacity)
• Gathering information to inform the plan on behalf of the
person (without capacity)
What people want in care and support
planning taken from TLAP
The process from assessment through to review is transparent
and clear. I know what to expect and when to expect it, and
people do what they say they will do.
Can an advocate help deliver this?
What people want in care and support
planning
If I need help to plan, I can choose who supports me to plan and
put the plan into practice.
Can an advocate help deliver this?
What people want in care and support
planning
People who support me to plan have a flexible, open, honest,
positive, solution-focused attitude
Can an advocate help deliver this?
What people want in care and support
planning
I am trusted to write my own care and support plan with
whatever help I need
Can an advocate help deliver this?
What people want in care and support
planning
I can involve friends and family if I choose
Can an advocate help deliver this?
What people want in care and support
planning
I have all the information I need to plan, when I need it, in an
accessible way, including signposting to what is available locally
Can an advocate help deliver this?
What people want in care and support
planning
I am supported to take risks, and know it is okay to make
mistakes and change my mind
Can an advocate help deliver this?
What people want in care and support
planning
My care and support plan is about the whole of my life and not
just about assessed needs or money
Can an advocate help deliver this?
What people want in care and support
planning
I am encouraged and supported to think creatively about ways to
achieve my outcomes
Can an advocate help deliver this?
What people want in care and support
planning
My review is person centred, focused on me and my life, my
outcomes and what is working and not working, not just the
money. Through my review I can also contribute my views to
improving the system.
Can an advocate help deliver this?
Review process
Advocacy role within the
review process
Review processes
Reviewing plans regularly is an essential element of the planning
process.
Without a system of regular reviews, plans can become quickly
out of date meaning that people do not obtain the care and
support they require to meet their needs.
Review processes
Plans must be kept under review
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First reviewed (‘light touch’) review after 6-8 weeks of
being agreed
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No later than 12 months (planned review)
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Can be requested (unplanned review)
Good review processes (1 of 2)
The review should be a positive opportunity to consider:
• Have the person’s circumstances and/or needs changed?
• What is working in the plan, what is not working, and what
might need to change?
• Have the identified outcomes been achieved or not?
• Does the person have new outcomes they want to meet?
Good review processes (2 of 2)
The review should be a positive opportunity to consider:
• Does the personal budget meet their needs and outcomes
• Is the current method still the best one option what they want
to achieve, e.g. should direct payments be considered?
• Has there been any changes which might mean they are at
risk of abuse or neglect?
• Is there a need to request a re-assessment
Safeguarding
The Advocacy role within
Safeguarding processes
Safeguarding
The Care Act puts adult safeguarding on an explicit statutory
footing
Each local authority must:
– set up a Safeguarding Adults Board (SAB)
– make enquiries, or cause others to do so, if it reasonably
suspects that an adult is subject to, or at risk of, abuse or
neglect
– arrange, where appropriate, for an independent advocate
to represent and support the adult
When do duties apply?
The safeguarding duties apply to an adult who:
• has needs for care and support (whether or not the local
authority is meeting any of those needs) and;
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to
protect themselves from either the risk of, or the experience
of abuse or neglect.
What is abuse?
Exploitation, in particular, is a common theme in the following
list of types of abuse and neglect.
• Physical abuse
• Domestic violence
• Sexual abuse
• Psychological abuse
• Financial or material abuse
• Modern slavery
• Discriminatory abuse
• Organisational abuse
• Neglect and acts of omission
• Self-neglect
Safeguarding Enquiry
Where a local authority has reasonable cause to suspect that an
adult has care or support needs or is at risk of neglect or abuse
and is unable to protect themselves from neglect or abuse, it
must make whatever enquiries it thinks necessary (or cause, by
instructing, others, to make enquiries), to inform decisions about
what actions should be taken and by whom.
Aims of safeguarding
The aims of safeguarding are to:
• establish facts;
• ascertain the adult’s views and wishes;
• assess the needs of the adult for protection, support and
redress and how they might be met;
• protect from the abuse and neglect, in accordance with the
wishes of the adult;
• make decisions as to what follow-up action should be taken
with regard to the person or organisation responsible for the
abuse or neglect; and
• enable the adult to achieve resolution and recovery.
Safeguarding Review
Local authorities must carry out a review of an individual’s care
and support where
- there is reasonable cause for concern about how the SAB,
members of it or other persons with relevant functions
worked together to safeguard the adult where an adult has
died and and the SAB knows or suspects that the death
resulted from abuse or neglect
OR
- if the adult has not died, the SAB knows or suspects the adult
has experienced serious abuse or neglect
Advocacy role
In terms of safeguarding, an advocate can assist a person to:
• Decide what outcomes/changes they want
• Understand the behaviour of others that are
abusive/neglectful
• Understand which actions of their own may expose them to
avoidable abuse or neglect
• Understand what advice and help they can expect from others
(inc criminal justice system)
• Understand what parts of the process are completely or
partially within their control
• Explain what help they want to avoid reoccurrence and also
recover from their experiences
Modern context of advocacy
How does advocacy under the
Care Act interact with other
forms of advocacy?
Modern Context of Advocacy
Children and Adoption Act
2002
• Right when making a complaint under the Children Act 1989
Mental Capacity Act 2005
• Duty to instruct to represent a person lacking capacity and
unbefriended
Mental Health Act 2007
Deprivation of Liberty
Safeguards (2009)
NHS complaints
Care Act 2014
Non statutory advocacy
• Offers support to ‘qualifying patients’
• IMCA instructed to represent a person subject to DoLS authorisation
• Right when accessing and using the NHS complaint system
• Available to people who face substantial difficulty and have no-one
appropriate to support
• Advocacy has a long tradition of supporting vulnerable or seldom
heard groups (carers, people from BME groups, LD etc)
When is an IMCA instructed?
The LA/NHS must consult the IMCA where
• a decision is being made about either serious medical
treatment or long term moves and
• the person does not have capacity to make that decision and
• there are no family or friends appropriate to consult
The LA/NHS may consult an IMCA where the person does not
have the capacity to agree to the arrangements for;
• accommodation reviews, where there are no family or friends
able to support and represent the person
• adult protection proceedings, for victim or alleged perpetrator
regardless of family/friend involvement
Overlap
• If an assessment, care and support plan or review leads to a
change in accommodation, an eligible person could receive
both types of advocacy
• People subject to safeguarding concerns (alleged perpetrators
who lack capacity can be offered IMCA support)
• Different emphasis within role….
• …with some similarities
Similarities?
• Aim of the role
• Audit function (checking decision making processes follow
legislative requirements)
• Both reflect advocacy principles
• Supported decision making
• Challenging decisions and systems
Differences?
• The point within the decision making process the advocate is
appointed
• The types of decision
• Producing reports
• Differences in capacity
• Differences in instruction
Raising concerns
The advocacy role in
raising concerns and
challenging decisions
Raising Concerns
• An important part of supported decision making is helping a
person to raise concerns
• The Care Act allows advocates to independently challenge or
raise concerns when a person is unable to do so.
• The Act requires advocates who are supporting a person who
does not have capacity, or is not otherwise able, to challenge
the decision on the person’s behalf where the advocate
believes the decision does not promote the individual’s
wellbeing.
Writing a report
• If the advocate has concerns about the LA has acted, the
decision or outcome the advocate must write a report.
• The local authority should convene a meeting with the
advocate to consider those concerns
• The local authority must provide a written response to the
advocate following the meeting
Different concerns – different routes?
Choose the most appropriate method to deal with your
concerns:
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Ask simple questions
Raising informal concerns
Accessing formal complaints process
Accessing the Court of Protection
Working with HealthWatch or CQC (to raise systemic
concerns)
• Appeals (from April 2016)
Appeals process (proposed)