Social workers urged to review practice given low Care Act advocacy case numbers

Figures from local authorities reveal advocacy take-up was less than a third of expected level in first six months of the reforms

Care Act
Photo: Gary Brigden

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.

Legal challenge

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.”

Practice questions

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.

Professional judgement

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.”

Waiting lists

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.”

Care Act advocacy: What you need to know

Local authorities must firstly consider whether a person has ‘substantial difficulty’ in engaging with the care and support process. The Care Act defines four areas where substantial difficulty may be found. These are:
• understanding relevant information
• retaining information
• using or weighing information
• communicating views, wishes and feelings.

If a person does have substantial difficulty being involved in their care and support then councils must consider whether there is an ‘appropriate individual’ in their network who can support them. Local authorities must consider that:
• The appropriate individual cannot be someone already providing care and treatment on a paid basis,
• The person must agree to the appropriateness of the individual proposed to support them, if they have capacity to do so.
• The appropriate person be someone who can support and represent the person’s active involvement with local authority processes.

Subscribers to Community Care Inform Adults can find out more by accessing our guide to advocacy under the Care Act. Advocacy provider VoiceAbility has also produced a checklist for professionals on identifying appropriate individuals.

2 Responses to Social workers urged to review practice given low Care Act advocacy case numbers

  1. PeteFeldon January 13, 2016 at 2:44 pm #

    This debate is very welcome as there is very little sharing of experience in the public arena of implementation of the Care Act.

    Another concern I would add is that where people who have substantial difficulty in involvement are not sufficiently involved in decisions about their own care and support, their needs may not be met in a way that has the impact on their wellbeing that they really want. This could also mean that the opportunities to prevent, reduce or delay the development of needs are insufficiently addressed.

    Whilst the figures on independent advocacy are a useful indicator, I think the focus should be on ensuring that there is good practice in relation to identifying people who have substantial difficulty in involvement. It would be useful to know the proportion of people who have been identified with substantial difficulty in involvement, as well as those who have received an independent advocate.

  2. charles huddleston January 18, 2016 at 8:28 am #

    The big issue is of course the guidance. It’s worded almost exactly like the MCA, and therefore social workers are jumping to the conclusion that the threshold is the same. It’s not.

    We’ve seen a drastic reduction in the number of referrals for advocacy from social workers. The classic, though, was the referral for advocacy AFTER the assessments had been done.