The Care Act 2014, introduced a new statutory Independent Advocate role to facilitate a person’s involvement in relevant social care functions being undertaken by a local authority. Under the Act, local authorities have duties to arrange an independent advocate for adults, as part of their own assessment and care planning and care reviews and to those in their role as carers as well as for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review. The duties also apply to children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken.  

About the Independent Advocate Role under the Care Act 2014

What is a 'Care Act Advocate'?

Independent Advocates under the Care Act 2014 are statutory advocates providing a legal safeguard for people involved in one of several social care functions provided for by the Act. The Care Act 2014 is a significant piece of social care legislation that places a general duty on local authorities to promote the wellbeing of people when carrying out their social care functions. The Act encompasses a wide range of functions, including assessment and review of social care needs of adults in England (including carers), care and support planning functions and safeguarding enquiries and reviews. The Act places a duty on local authorities to involve people who are the subject of these functions and where the person experiences ‘substantial difficulty’ either understanding, retaining, using or weighing information or communicating their views, wishes or feelings, the local authority must  to an independent advocate to represent and support the person in order to facilitate their involvement.

How does a Care Act Advocate become involved?

Professionals representing the local authority should make efforts to involve the person in the relevant function, including by directly providing or signposting to relevant information and advice and supporting a range communication needs. Where it appears to the professional that the person is experiencing substantial difficulty, including where the person or someone else expresses that they are experiencing substantial difficulty, and where there is no appropriate person to represent and support the person for the purpose of facilitating their involvement, it is for the local authority to then arrange for an independent advocate to become involved under section 67. For more information on whether you may be entitled to or need to arrange for a Care Act Advocate, please see Care Act Advocate FAQs. 

What does an Care Act Advocate do?

In the course of their involvement, a Care Act Advocate will normally meet with the person and support them to understand:

  • how their care and support or support needs can be met by the local authority (or otherwise);
  • the relevant function that the local authority is undertaking, and;
  • the local authority’s duties as well as the person’s rights and obligations under the Care Act.

In all cases, a Care Act Advocate will determine how best to represent and support the person, acting with a view to promoting their well-being. This may involve the advocate assisting the person to make decisions about their care and support arrangements or to communicate their views, wishes or feelings to the local authority. Where it is appropriate to do so, the advocate will normally ask to speak with people who are or have been engaged in providing care or treatment for the person in a professional or paid capacity or other persons who may be in a position to comment on the person’s wishes, beliefs or values, for example the person’s family members, carers or friends. The advocate may make representations for the purpose of securing the person’s rights and support the person to challenge the local authority’s decisions if they wish to do so. Where the advocate has concerns about the manner in which certain functions have been exercised or the outcomes arising from them, they will prepare a report for the local authority outlining these concerns, to which the local authority must provide a written response.

Care Act Advocates may deliver non-instructed advocacy where a person does not have capacity or is not competent (if they are a child) to communicate his or her views, wishes or feelings or to challenge a decision made by a local authority. In such cases, an advocate will communicate the person’s views, wishes or feelings to the extent the advocate can ascertain them and challenge the decision if they consider it to be inconsistent with the local authority’s general duty under the Act to promote the person’s wellbeing.

In order to carry out these functions Care Act advocates may use their legal rights to examine and take copies of any relevant records relating to the person where they provide consent for the advocate to do so or where the person does not have capacity or are not competent to consent, the advocate considers it is in their best interests to do so.

Care Act Advocacy FAQs

1. What local authority functions does the Care Act provide statutory advocacy for?

Local authorities must arrange an independent advocate to facilitate the involvement of a person when:

          • carrying out an assessment of an adult’s needs for care and support under section 9. This function requires the involvement of the adult, any carer that the adult has and any  person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.
          • carrying out an assessment of a carer’s needs for support under section 10. This function requires the involvement of the carer and any person whom the carer asks the authority to involve.
          • preparing a care and support plan or support plan under section 25. For a care and support plan, this function requires the involvement of the same people as section 9, above. For a support plan, this function requires the involvement of the carer for whom it is being prepared, the adult needing care (if the carer asks the local authority to do so) and any other person the carer asks the local authority to involve.
          • revising care and support plan or support plan under section 27. This function requires the involvement of the same people as section 25, above.
          • undertaking a safeguarding adults enquiry under section 42. This function requires the involvement of the person whom the enquiry relates to.
          • undertaking a Safeguarding Adults Review (SAR) under section 44. This function requires the involvement of the person whom the SAR relates to.
          • carrying out a child’s needs assessment under section 59 (which involves the assessment of what the child’s needs for care and support are likely to be after the child becomes 18). This function requires the involvement of the child, the child’s parents and any carer that the child has, and any person whom the child or parent or carer of the child requests the local authority to involve.
          • carrying out child’s carer’s assessment under section 61 (which involves assessment of whether the carer is able and willing to provide care for the child and is likely to continue to be able to do so after the child becomes 18). This function requires the involvement of the carer and any person whom the carer asks the authority to involve.
          • carrying out young carer’s assessment under section 64. ‘Young carer’ means a person under 18 who provides or intends to provide care for an adult not under or by virtue of a contract of employment or as voluntary work.  This function requires the involvement of the young carer, the young carer’s parents, and any person whom the young carer or parent of the young carer requests the local authority to involve.

2. What does 'substantial difficulty' mean for the purposes of Care Act advocacy?

Substantial difficulty
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  • Further Reading: Chapter 7 of the Care and Support Statutory Guidance

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