“You can’t get an advocate because we haven’t got any spare at the moment”

This is a myth, beyond any shadow of a doubt – however reasonable it may seem in the ‘real’ world, to say ‘we are so pushed’ or ‘there aren’t any’ at the moment, ….so ‘shall we just crack on?’.

That is because

a) the provision of advocacy under the Care Act is a statutory duty – availability or resources difficulties are no excuse for the breach of a statutory duty, and that’s the whole point of public law. Discretions are different, but duties are mandatory.

b) breach of a statutory duty like this doesn’t lead to any compensation or damages, but it does constitute a ground for judicial review, for an injunction

c) any process under the Care Act that should only have gone ahead WITH an advocate, will not be a valid legal process, and would have to be done again.

Safeguarding enquiries can begin without an advocate in place (presumably because the situation might be very urgent, and the people doing it will be person centred in any event and not making a decision, as such, that can make any difference to the vulnerable adult, unless the council goes ON to make a Care Act decision, which WOULD require an advocate, if one had been triggered.

Assessment, Care Planning, and Revisions cannot go ahead without an advocate in place and still be valid. This does not mean one has to wait until there’s one available, for one’s legal right to assessment.

It means that council commissioners must pull their fingers out and stimulate the market to generate more interest in the role in order to secure sufficient applications to the organisations that they’ve purchased advocacy from! And if those advocacy organisations were more legally literate, they would know that, and not sign up to an impossible task and accept risk transfer to themselves….

The Haringey case, is the authority for this assertion that the absence of available advocates under current commissioning arrangements is no excuse for breach of statutory duty. It cannot be gainsaid or ignored by councils, without that being maladministration, itself. If it’s in the law reports, it’s law, end of! (That’s one reason why CASCAIDr thinks that there need to be more precedents set in cases that involve principles that people are wasting time arguing about.)

Of course, a council might say that it did not think that a person gave the impression of substantial difficulty, and that THAT was why they did not get an advocate. That concept if a woollier one, as to which two or more people could take a different view, but nobody would have made a judicially reviewable mistake. But that’s a different question to the one we’re unpacking, today.

What is clear is this: it is unlawful to assess without one, when the duty could only conceivably be regarded as triggered by any reasonable council…as in the Haringey case.

The woman in question had severe memory difficulties, could not count, could not tell the time and had severe difficulty in learning her way to new places and using public transport. She had post-traumatic stress disorder and resulting anxiety and depression. She struggled with all manner of basic tasks, including self care, preparing and eating food, management of simple tasks and taking medication.

The judge said this:

  • “[Haringey Council] appears to accept the claimant was entitled to, but did not have, an independent advocate when she was assessed under the Care Act, but contends nonetheless that this did not “lead to a flawed assessment process” because referral for such an advocate was made at the time of the assessment, and since then an independent advocate has been appointed in the form of Mind.
  • [Haringey’s barrister] …says the claimant’s services have not been prejudiced as a result concerning the outcome of the assessment, but I agree with [SG’s barrister] that we simply do not know that.
  • I do accept the defendant’s submission that there may be cases in which it is unlikely the presence of an independent advocate would make any difference to the outcome. This is not one of them, because this appears to me the paradigm case where such an advocate was required, as in the absence of one, the claimant was in no position to influence matters.”

Of significance to ALL councils is the factor of resourcing an advocate, at a time when most will be stretched to capacity on working on the DoLS backlog. The council’s barrister suggested that “demand exceeded supply”, hopefully like, but the judge applied pure public law principles and held that that was no excuse in relation to a mandatory duty that had been acknowledged to have arisen.

So if there are not enough, a very relevant consideration is what is being offered by way of a fee, and are the terms reasonable? Could supply be being artificially suppressed by the fees factor? The council now has a duty specifically in relation to commissioning, to managing the market for all, and not just those for whom it is statutorily responsible, and the absence of a willing provider points directly to a commissioning fault or fetter, with regard to the sums the commissioner has sought to offer to the market…

This matters – just as it matters with ordinary Care Act care planning excuses that ‘nobody has come forward to provide the service’ that everyone agrees is needed.

If the duty has been triggered in relation to SERVICES, it’s understood that price being offered, not being enough to attract a provider, is not a discharge of the duty, however hard up the council is. The council or the CCG will generally be able to find an alternative, which is direct provision, as opposed to purchase of a service – or a grant of direct payments for a sum that strikes the client as good enough – but not in all cases. And not in the case of Advocacy, where there are requirements for fitness and appropriateness.

And the fact that there will always BE a case where no provider can be found, but the client is still owed a duty, is the reason CASCAIDr can say with real certainty that care planning and advocacy commissioning is DEMAND led, not budget limited. The same has to be said for the advocacy duty, we are sure.