At last, a judicial review challenge (a winner) about advocacy. Legal literacy has a future!

Community Care readers will have spotted that Haringey has managed to set the first legal precedent of principle, under the Care Act, about the mandatory nature of the duty to appoint an advocate if the threshold is met, or no reasonable council could possibly consider the person to be without substantial difficulties, in relation to any of the involvement stages of the customer journey (assessment, care planning, review and safeguarding, to name the most common).

This means it is unlawful to assess without one, and that the assessments made without one, when the duty has been triggered, are prone to be declared invalid!

Of significance to ALL councils is the factor of resourcing an advocate, at a time when most will be stretched to capacity on the DoLS backlog. The barrister suggested that demand exceeded supply, 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.

More analysis of this case later, but for now, a focus on the advocacy aspect of the 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] …contends that as a result of the new Care Act “demand currently outstrips supply.” She 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.”

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

One thought on “At last, a judicial review challenge (a winner) about advocacy. Legal literacy has a future!”

  1. Imran Mohammed

    This is certainly an interesting case in that it raises an important question such as: Are local authorities fully prepared to deal with the challenges that the Care Act presents? If so, how proactive have commissioning departments been in responding to the need of employing extra advocates and who is given priority according to those waiting on a list for an advocate. If a person is in hospital awaiting discharge they will understandably be seen first, due to the nature of the setting, and doctors and consultants urging for a discharge, equally, if a crisis erupts in the community and an emergency assessment needs to be undertaken, how quickly can an advocate be arranged? Also, what is interesting is the language being used, for example, the judge stated: “mandatory duty”, but, this also is also about duty of care and the responsibility to ensure safe discharges to a place of safety. Furthermore with the customer journey practitioners are required to hold onto cases as part of good practice which means the on-going need to involve the advocate at the assessment, support planning and review stage. This case is just the beginning of many more to come and organisations and local authorities really do need to take note!

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