8.68R (SG) v Haringey LBC [2015] EWHC 2579 (Admin), (2015) 18 CCLR 444
The failure to appoint an independent advocate, under section 67(2) of the Care Act 2014, for a vulnerable adult, who spoke no English and was illiterate, and who suffered from PTSD, insomnia, depression and anxiety, rendered the assessment unlawful
Facts: SG was an asylum-seeker provided with asylum support. She spoke no English and was illiterate, and suffered from post-traumatic stress disorder (PTSD), insomnia, depression and anxiety. She needed help with self-care, preparing and eating food, simple tasks and medication. Haringey declined to provide residential accommodation to SG under section 21 of the National Assistance Act 1948 and then, later, under the Care Act 2014.
Judgment: Deputy High Court Judge Bowers held that the assessment under the Care Act 2014 was unlawful because (i) Haringey failed to ensure that SG was offered an independent advocate, under section 67(2) of the Care Act 2014; and (ii) Haringey failed to ask itself the correct question as to whether accommodation was required. On the issue of the independent advocate, the Deputy High Court Judge said this:
(1) Absence of an independent advocate
53. The defendant 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 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.
54. Section 67(2) of the Act could not be clearer:
‘The authority must … arrange for a person who is independent of the authority (an ‘independent advocate’) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement.’
55. There are detailed criteria for being an independent advocate, as set out in the Care and Support (Independent Advocacy Support) No 2 Regulations 2014 SI No 2889, together with the manner in which they are to carry out their functions. This testifies to the importance of this protection for essentially vulnerable persons.
56. Ms Okafor points to the fact that Mind has now accepted a referral and she 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 Mr Burton 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. I keep particularly in mind the account given by Ms Mohr-Pietsch. I think the assessment was flawed as a result and must be redone. This is the first of only two grounds of unlawfulness which I find in this case.
Comment: such is the importance of involving service users in assessment and care planning in this statutory scheme (see para 7.53 above) that it is hard to believe there will be many, if any, cases where the court declines to grant relief in a case where a local authority has failed to offer an independent advocate to a person who it accepts will experience ‘substantial difficulty’ in participating in the process. It is likely that more difficult cases will arise should a local authority assert that, in its view, the service user was able to participate in the assessment and planning process without ‘substantial difficulty’ but again, given the fundamental importance of participation and that the bar is set very low, the courts can be expected to scrutinise the rationality of such decisions with considerable intensity.