The Act requires local authorities to involve people in assessments, care and support planning, and reviews. In order to facilitate the involvement of people who would otherwise have difficulty, it introduces a new requirement to arrange independent advocacy for people who either have substantial difficulty in being involved in these processes or in being fully involved in these processes, and there is no one available to act on the person’s behalf.
There is also a separate requirement to arrange independent advocacy in connection with safeguarding enquiries and reviews.
The draft guidance on independent advocacy covers:
- matters which a local authority must consider in deciding whether an individual would experience substantial difficulty in engaging with certain aspects of the care and support process
- circumstances in which a local authority must arrange for an advocate during the care and support planning process
- the role of independent advocates and how they are to carry out their functions
- requirements for a person to be an independent advocate
- deciding whether someone has substantial difficulty
- when independent advocacy must be provided, even if there is someone available to represent and support someone
- the manner in which independent advocates are to carry out their role
In certain specified circumstances, regulations state that the local authority must provide independent advocacy to an individual who would experience substantial difficulty being ‘involved’, even if there is an appropriate person to act on their behalf. The specified circumstances relate to where the assessment, planning or review might result in NHS-funded provision in a hospital for a period exceeding four weeks or in a care home for a period exceeding eight weeks; and where there is a disagreement between the local authority and the appropriate person relating to the individual.
During production of the regulations, stakeholders have suggested that these circumstances should also include people undergoing an assessment or planning which results in joint provision by social care and the NHS due to the complexity of these processes.