Why councils risk breaching the Care Act and failing people entitled to independent advocacy

By Martin Coyle

From 1 April 2015, a number of people will be entitled to the support of an independent advocate as a result of the Care Act 2014. Long fought for by disabled people’s groups, this right to support is vital, if limited in scope.

In his introduction to the Social Care Institute for Excellence’s guide to commissioning independent advocacy, its chair, Michael Bichard, states that: “Access to independent advocacy lies at the very heart of the Care Act”.

Local authorities can easily access Scie’s commissioning guidance. Released in October 2014, it contains some useful notes on how to go through the commissioning process, including a self assessment checklist with a red/amber/green scoring system. There is also statutory guidance on implementing the Care Act,also  published in October 2014, with one chapter on implementing the advocacy provisions. Furthermore, the impact assessment for the act, released at the same time, not only clarifies the ways in which advocacy is useful, it even includes a clear methodology for assessing likely need and costing advocacy provision for the Care Act.

Wealth of information

With such a wealth of information one might expect commissioning to run smoothly; particularly as there was the ability to learn from the previous roll out of independent mental health advocacy in 2009, independent mental capacity advocacy in 2007, and independent NHS complaints advocacy, which councils took responsibility for in 2013.

But things are running anything but smoothly. 

My organisation, True Voice, ran a survey from 15 to 31 January this year to hear how advocacy providers felt that commissioning was going. Thirty four responses were received from organisations that provide advocacy in more than 60 local authority areas. The results are worrying. In brief, they suggest that less than one third of respondents believe that people who work for local authorities will be able to identify and refer people to Care Act advocacy, despite this being a legal requirement.The decision on who will be providing Care Act advocacy has only been made in 20% of cases. Only one in ten advocacy services knows what level of funding is available – for a statutory function. Two thirds of respondents said there was no relationship between funding and expected uptake. One in nine respondents said that there was absolutely no relationship to need, only a statement from commissioners that “this is what we have in the budget”.

Insufficient funding 

Unsurprisingly then, only one in nine respondents think that funding might be sufficient to ensure sufficient access; and none of those would go so far as to say they are confident about this.

And yet, paragraph 7.50 of the Care Act statutory guidance couldn’t be clearer, stating that “All local authorities must ensure that there is sufficient provision of independent advocacy to meet their obligations under the Care Act. There should be sufficient independent advocates available for all people who qualify, and it will be unlawful not to provide someone who qualifies with an advocate.”

Using the information from the survey to go through the commissioning checklist left me literally seeing red. No amber, no green, just red. One respondent stated that the tender for Care Act advocacy will go out in July – but the duty exists from April! Another suggested that commissioning was based on two hours per case, an estimate so wildly below common sense that it is little wonder that people are despairing.

Poor commissioning not only risks people’s access to advocacy to which they are entitled, it also places local authorities in breach of the law. Why then, despite guidance, tools and a legal imperative, are local authorities commissioning so poorly?

I’ve been trying to think of possible reasons, and I’ve listed five below. Though some are understandable, none of them is particularly pleasant.

There’s no new money and local authorities are overstretched

When IMCA services were being commissioned there was a clear statement of financial allocation for developing the new service, specified for each local authority. The funding could be identified, it wasn’t directly in conflict with other parts of LA budgets. This has not been the case with the Care Act, and it was not the case with IMHA services. Problems with IMHA commissioning were identified in 2009 and have been noticeable ever since.

Local authority commissioners aren’t held to account

Under-provision of IMHA services has been identified by a number of sources, including the Care Quality Commission. Nothing has changed. DoLS cases have increased massively in the aftermath of Cheshire West, funding for IMCA hasn’t. There is a strong case for saying that local authority commissioners know that they will not be held accountable for breaches of the law. If this is the case, we must ask how rights enshrined in the law mean anything.

Local authorities are ignoring their potential legal liabilities

The way in which some commissioners have been described by respondents suggest that there is a fundamental misunderstanding of the law. If a local authority commissions only a low level baseline of CAA, expecting the advocacy provider to then meet any extra demand through spot purchase, they better have a formal agreement to this effect. They also need to have made sure that the provider will be able to train, maintain and supervise these advocates. Unless there is a clear contract that the provider is not living up to, it is the local authority that is responsible for ensuring sufficient advocacy is available, and the legal liability for breach of this duty also falls to them. Under-commissioning might prove to be a very risky money saving measure.

Commissioners genuinely don’t know what level of demand to expect

This excuse was mentioned by a lot of survey respondents, but it is a poor excuse at a best. Combining the data in the Impact Assessment with local needs identified in the authority’s JSNA should give at least a workable baseline. I managed to perform such an estimate of demand for one organisation that I support, using public data, in under 2 hours. If local commissioners can’t do better than that something is going badly wrong.

They really don’t want it to happen

The role of the Care Act Advocate includes making a formal report of times when a local authority is not operating within the Care Act. Some have argued that this makes it in the best interests of local authorities to under-commission and under-refer. From a good practice point of view, this is nonsense. When even the Department of Health impact assessment praises advocacy for maintaining and supporting relationships, delivering greater control, supporting safeguarding processes and making social care spending more effective, under-provision cannot be in anyone’s interest. And from a personal level, most people I come across are definitely not against increasing people’s abilities to be heard and in control of their care and support.

It’s important that we learn lessons from what’s happened in this commissioning round, and countless others. It’s important that a mechanism is put in place to ensure that commissioners are accountable, and that funding for statutory advocacy is demonstrably related to eligibility and need. However, most pressing of all is the need to make sure that adequately-resourced, high-quality advocacy provision is in place for those who need it to deal with assessment, care planning, review and safeguarding processes. That is their right. People with a right to advocacy should not be placed in a situation where decisions feel out of their control, confused, frightened or frustrated; seeing red, but not seeing their advocate.

Martin Coyle is director of True Voice