Social workers have been urged to review their practice in light of figures revealing Care Act advocacy case numbers are far lower than expected.
Figures from 80 councils in England, obtained by Community Care under the Freedom of Information Act, found independent advocates were provided to 2.1% of 253,000 people assessed under the Care Act between April and September 2015. The government’s impact assessment estimated 7% would qualify for, and accept, support.
Legal experts and advocacy trainers said social workers, and other local authority assessors, needed better awareness of their statutory duties to make advocacy referrals (see box) and called on councils to improve support for staff.
Social work leaders said practitioners faced “complex” decisions over advocacy eligibility but warned of issues with advocacy providers’ capacity to take on referrals.
The Care Act requires local authorities to offer an advocate to anyone who has ‘substantial difficulty’ being involved in assessments, care planning, reviews and safeguarding cases and lacks an appropriate person to represent them. The figures obtained by Community Care only cover assessments.
One local authority’s failure to meet this duty led to the first successful legal challenge under the Care Act. The case saw Haringey council ordered to re-assess a woman’s needs. The judge threw out the council’s argument that an advocate had not been arranged for her because demand “outstripped supply”.
Kate Mercer, a leading advocacy trainer, said the case highlighted the importance of social workers and councils making the right decisions on advocacy.
“Haringey showed if you’re not offering advocacy when you should be, it can make all of your work with someone potentially invalid – the assessments, the care plan, all having to be redone. It’s something local authorities need to take seriously but there are signs some social workers aren’t getting the support and information they need on this.”
Belinda Schwehr, legal consultant at Care and Health Law, raised questions over professionals’ interpretation of the Care Act guidance when identifying the need for advocacy.
She said: “If council staff aren’t even allocating advocates according to the statutory triggers, then the potential benefits of the act will be still-born
“Councils are legally obliged to obtain the consent of the person with substantial difficulties to being supported by their own informal supporter – or any other that is offered – before the entitlement to an advocate is lost.
“How many care managers are simply saying ‘you’ll be fine with your dad helping you with your assessment won’t you?’ That is asking a closed question, rather than fully informed consent, and by saying ‘yes’ the person is about to give up all the help that an advocate who really knew the legal framework could provide.”
Schwehr said the low referral rates for Care Act advocacy so far also echoed slow take-up of the Deprivation of Liberty Safeguards (Dols) when it was introduced in 2009. It was largely emerging case law that drove greater use of the Dols, she added.
Sharon Cullerton, co-chair of the Advocacy Action Alliance, an umbrella body for advocacy providers, agreed: “Partly it is a slow burn, like we saw when IMCA and the Dols came in. But partly it’s because professionals aren’t judging properly whether a person has substantial difficulty or whether they’ve got an appropriate person to support them or not.
“That’s partly about training and understanding the guidance, because there’s a lot of guidance out there on the Care Act. But there’s sometimes also a reticence from professionals to get an advocate involved. They don’t always necessarily see advocacy as a contributory factor in safeguarding and ensuring full participation. Sometimes it’s seen as just another person to complicate the process.”
Maris Stratulis, England manager for the British Association of Social Workers, said practitioners had voiced concerns about how Care Act advocacy had been commissioned and the limited resources available to services.
“We are hearing about service users being placed on waiting lists for advocacy services and sensitive and complex issues about how social work practitioners determine whether a relative or friend meets the criteria for being an ‘appropriate person’,” she said.
“Training and workforce development is only part of the solution. Service users, practitioners, advocacy services, commissioners and organisational leaders need to come together and agree ‘what is good practice’ and make advocacy a working reality.”
Funding and commissioning
Advocacy providers have also raised “deep concerns” over commissioning and funding arrangements.
An Advocacy Action Alliance survey of providers covering 72 local authority areas showed almost two-thirds of Care Act advocacy contracts were for less than a year. Some councils had not commissioned any Care Act advocacy in time for the reforms coming into force in April 2015.
A report on the findings concluded: “Advocacy under the Care Act is vital in protecting and upholding the rights of people affected by the Act with care and support needs. It is itself a statutory right.
“The poor access to advocacy that this survey indicates imperils those rights, undermines the proper implementation of the Care Act, and results in local authorities not fulfilling their statutory obligations and advocacy providers being unable to provide a comprehensive service to everyone who is entitled to it.”
Local authorities have indicated a growing need for support in delivering Care Act advocacy. Quarterly stocktakes carried out by the Local Government Association and the Association of Directors of Adult Social Services showed 41% councils identified support needs in this area in May 2015, up from 25% three months earlier.
The government provided councils with £14.5m via the Better Care Fund to provide Care Act advocacy for 2015-16.
A Department of Health spokesperson said: “Statutory guidance makes clear that local authorities have a responsibility to consider a person’s need for an independent advocate from the first time they make contact and through all subsequent contacts.
“A whole range of support has been provided to LAs to support them in the introduction of this new duty and we will continue to provide support as this beds in.”