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.”