These questions were posed by practitioners at a recent Community Care webinar, delivered by Belinda Schwehr, on advocacy rights and reviews under the Care Act. Subscribers to Community Care Inform Adults can access the webinar here. Belinda’s answers are in bold.
We have been told that people can only have an advocate if they lack capacity. The people who we support have a learning disability and are not fully involved in the Care Act processes etc. Should they still be able to access an advocate? Yes, because the test is whether they have substantial difficulty in being involved in the process, which means that they do not have to lack capacity. But they have to meet the other criteria as well.
If a person has a severe learning disability and has no understanding of the assessment process how can an independent advocate help them? Surely the advocate would just gather information from care staff just as we would. How would this benefit the service user? I agree that it is hard to see the point, but the theory is that the advocate will do it from the person’s point of view, not the statutory sector’s point of view. In the old days it would have been offensive to suggest that social workers would not be able to do this in an objective professional way, but now it is not feasible to expect it, given the pressure, perhaps?
How can the client challenge their right to a revision of their care plan if they’re not entitled to an advocate at the review stage? They have a right to a review, and to reasons if they are refused one; and the review is meant to be so straightforward, that they do not need an advocate. The review stage just identifies whether anything has changed or might need to change, and the outcome of the review is what triggers the need for a revision, and hence an advocate.
If someone has got capacity, surely, if they don’t want an advocate we can’t force them? Yes you can, if you believe that the person will face substantial difficulty without one. By force, I mean that you can appoint one, who must make a conscientious attempt; but the person cannot be made to co-operate, of course, and if they have capacity they can refuse consent to the advocate in relation to the advocate’s access to records. So in practical terms, a person can make it impossible for the advocate to do anything helpful; I cannot see any council believing that a person is actually facing substantial difficulty if they are that determined not to have an advocate, myself.
Advocacy and the NHS
How does the role of advocacy impact on hospital delayed discharge? Are there any duties created to ensure the advocate and the assessment occur in a timely manner? The role of the advocate is for assessments, which might be done in hospital, and care planning, which is often done in hospital. So the obvious implication is that the advocates should be available speedily.
Is the advocacy right for continuing healthcare assessments triggered independently of the right that relates to social care revisions? Yes – in so far as it is appropriate to call this possibility a right – please see the advocacy regulations. Any assessment or care planning function that would be likely to lead to a person being accommodated by the NHS gives rise to this right in respect of the council side of that process. The right to an advocate for a revision of a care plan is found in section 67 of the Care Act.
I work in hospital as a social worker. We attend continuing healthcare decision support tool meetings a lot and was wondering whether individual service users should have advocacy representing their interest during this very important meetings? Yes I think that they should, because the council is either meant to be assessing or contributing to a multi-disciplinary assessment and I think that the regulation mentioned above applies to enable this to happen. It is only any good though if the advocate knows about continuing healthcare law!
When waiting for a decision support tool (DST) to assess eligibility for continuing healthcare in an acute hospital bed and needing an advocate, where do we stand on delayed discharge? When someone has been positively checklisted for continuing healthcare, and is in an acute bed awaiting a DST decision, then if they trigger an advocate because the underlying social services assessment needs to be done, and there is no advocate, in my view the local authority is responsible for the delay. Fines for delayed discharge are not now mandatory, but the clinical commissioning group could justifiably say that the council is responsible – it’s a duty.
The advocacy system
I am an advocate but we haven’t received any additional funding to provide advocacy under the Care Act. We have very limited resources. Should the local authority be providing us with additional funding? It depends on what you are contracted or funded to provide advocacy, and if contracted, what you agreed to at the time. If you are merely grant funded, and not commissioned to deliver any particular amount of Care Act advocacy, and no other body is either, then there is no proper commitment to the duty, in my view.
Can personal assistants or paid supporters be advocates? A personal assistant would be providing care for money so they are excluded, automatically. What is different about a support worker is that what they are providing might not be seen as care. That makes them appropriate as informal supporters, and appropriate, potentially, as paid independent advocates, but only if the council is choosing to contract in that way.
Can the council give the money for the advocate in a personal budget so that councils understand the role is truly independent? No. Money in a personal budget is for meeting needs, after assessment, not to fund a due process right that has to be paid for before eligibility has been assessed.
Reviews and cuts
As I understand it from the webinar, a local authority can consider all factors in the hope of finding a viable cut when reviewing a care plan, but they must also not use reviews routinely to make cuts – which is what councils seem to be trying to do to a lot of people. So, is it not arbitrary if they look at all factors and make a cut every time? It’s not arbitrary, no, it is planned, on account of the pressure to save money. It is logical to try to save money, if you are paid less by central government, but it has to be done lawfully. Arbitrariness is making a cut on a whim, or making a cut of a specific amount without regard to whether you can make that cut, lawfully, in the person’s particular situation.
How far can a local authority go in its insistence on reviewing when a client is intent on putting off the local authority from visiting them/contacting them for fear that their care package will be cut? The council has an absolute legal right to review the client, regardless of whether they wish to cooperate or not. The client is not entitled to obstruct the council in its statutory duties and must remain willing to satisfy the council as to an ongoing duty to meet assessed eligible needs, which would not be easy if one was saying no to review or reassessment!
Reviews and the law
My local authority is telling us that we have a legal duty to review within 6 weeks (even if this is for a very low-level service such as a pendant/day centre/carer respite allowance) and that we have a legal duty to review/re-assess annually. Is this not the case? No it isn’t a duty. The statutory guidance says that the expectation is that review should be no less frequent than annual; and it does recommend a review soon after a service is commenced, but it isn’t a legal duty. It is a virtual duty, unless there’s a very good reason not to follow guidance. Direct payment clients do have to be reviewed annually, however, because the regulations say so, explicitly.
If there is a need to review eligible need, am I right to assume that this also means reviewing needs which are not met by the local authority, ie via informal carers? What is reviewed is whether the care plan is working to meet the assessed eligible needs last time round; if a person’s situation has changed in any relevant sense, the person’s eligibility might be reassessed. In that case, the fact that informal help is meeting those needs does not mean those needs don’t count. If carers are also meeting needs that are not eligible, it may well be relevant to their ability to go on, so yes, if there is a reassessment, needs that aren’t within the eligibility regulations will also need to be identified.
I work for a review team – there are only four of us and thousands of service users. There is no way it is feasible to have annual reviews. We are still working our way through people who have no assessment at all never mind a Care Act one. Under the old law, this would be a breach of the public law duty to furnish the director of social services with sufficient staff for the discharge of the council’s social services functions, and a council could be judicially reviewed for not providing for sufficient staff – which would be a shock to members. I think, although I am not sure, that that duty has been repealed by the Care Act!
Belinda Schwehr provides legal consultancy and training on adult social care through her service, Care and Health Law. She also runs the blog, SchwehronCare, where you can find information about her new webinar series on the Care Act.