Briefing by Luke Clements ~ updated September 2017. For corrections or suggested additions please contact email@example.com
Although sections 181 – 183 of the 2014 Act provide for regulations to be made concerning the provision of ‘advocacy’, the Welsh Government has decided not to implement this statutory duty (in contrast to the position in England). The explanation for this failure is that a Code of Practice is sufficient as ‘advocacy is a golden thread throughout the Act’.
The Part 10 Code of Practice (Advocacy) is detailed and is something that authorities must ‘act in accordance with’. The Code specifies (chapter 10 para 47) that:
Local authorities must arrange for the provision of an independent professional advocate when a person can only overcome the barrier(s) to participate fully in the assessment, care and support planning, review and safeguarding processes with assistance from an appropriate individual, but there is no appropriate individual available;
The Code devotes time to describing the types of advocacy that exist, but fails to explain what forms of advocacy authorities must commission to satisfy their obligations and what it means by an ‘independent advocate’. The Act merely speaks about ‘services which provide assistance (by way of representation or otherwise) to persons for purposes relating to their care and support’ (section 181(2)).
The Part 10 Code para 7 sets out the requirements for local authorities to:
- ensure that access to advocacy services and support is available to enable individuals to engage and participate when local authorities are exercising statutory duties in relation to them; and
- to arrange an independent professional advocate to facilitate the involvement of individuals in certain circumstances.
It appears that some councils focus on the duty in 7(b) and fail to appreciate the breadth of the obligation in 7(a) in relation to other forms of advocacy. The general duty finds emphasis in the Part 10 Code para 31 which states ‘Each form of advocacy has its own benefits and local authorities should recognise and value all these forms.’
Annex 1 in the Part 10 Code of Practice provides further detail concerning the role of the independent professional advocate.
The right to an independent advocate only arises where (among other things) there is not an ‘appropriate individual’ and the Code’s explanation as to the necessary attributes of an ‘appropriate individual’ would appear to give an indication as to what the necessary attributes are of an independent advocate. At chapter 13 para 63 it states:
Appropriate individuals are expected to support, represent and to facilitate the individual’s involvement in securing their well-being outcomes. Whilst often this will be a family member, friend or someone in the wider support network it is likely that some people may not find it that easy to fulfil this role. For instance, a family member who lives at a distance and who only has occasional contact with the person; a spouse who also finds it difficult to understand the local authority processes; a friend who expresses strong opinions of their own prior to finding out those of the individual concerned. It is not sufficient to know the person well. The role of the appropriate individual is to support the individual’s full engagement and participation in determining their well-being outcomes.
Chapter 10 para 50 of the Code identifies those functions ‘where local authorities must consider individuals’ needs for advocacy support’, and these are wide ranging – including the provision of information and preventative services; assessments of need, care planning, meeting needs, direct payments, portability of support, reviews and safeguarding.