Advocacy, representation and consent

The regulations say that councils must ensure ‘complainants receive, so far as is reasonably practical… assistance to enable them to understand the procedure in relation to complaints’. This can be achieved through information provided about services online or in printed material. Complainants may also need support from others such as family members, advocates or other representatives.

The Care Act 2014 requires councils to provide independent advocates to individuals who would experience significant difficulties in:

• understanding relevant information;
• retaining information;
• using or weighing information as part of being involved in care and/or support planning; and
• communicating their views, wishes or feelings.

Councils should consider whether these individuals also need to be similarly supported to raise complaints about decisions made about their care or the standard of care they are receiving.

Councils may offer advocacy to others who complain where appropriate. A representative for people without substantial difficulties could be a friend or family member as well as a professional such as an advocate or solicitor.

Having a representative can be helpful for many people, not just people who experience difficulties in communicating or substantial difficulty in being involved in decision making. Complainants in adult social care services may need to disclose intimate personal information as part of their complaint or relive experiences they found distressing. Having someone to help them make a complaint can help them to voice their concerns in a way that reduces their distress.

Councils should generally ensure any representative has consent or other lawful basis for acting on another individual’s behalf (e.g. power of attorney). However, if a complaint is made on behalf of a person who lacks capacity to give consent and there is no one who can legally act on their behalf (e.g. deputy or power of attorney), the council should not automatically decline the complaint but consider whether the person raising the complaint is suitable to act on their behalf.

Councils should not place restrictions on the actions of representatives unless there are good reasons for doing so. For example, if a person wants to attend a meeting with a friend or family member for support the council should not prevent that person from speaking in the meeting without good reason (e.g there are concerns about the representative exerting coercive control over the person complaining).

Representatives should be expected to act with the best interests of the complainant in mind. Our guidance on managing unreasonable actions contains information about how councils can respond to concerns about the actions of a representative.

Councils may decide to maintain an active list of advocacy and support services available in their area that can be shared with officers and members of the public. Councils could explain they are not affiliated with the organisations but that the information is provided to support people to access support when needed.