Page 5/9

Advocacy In Practice in Cardiff

Statutory Advocacy

Statutory Advocacy

When does someone have a legal entitlement to advocacy

Most professionals working in health and social care are aware that advocacy exists. Fewer are clear on when it becomes a legal duty rather than a matter of good practice. This page sets that out.

Statutory advocacy is advocacy that must be offered, and some cases, must be provided. The offer is not discretionary, not "if time/resources allow," but mandated by law. Understanding which piece of legislation applies in any given situation is one of the most important skills you can develop as a practitioner. It also protects you professionally. When the right to advocacy has been missed, decisions become vulnerable to challenge.

In practice, a person may meet the criteria for more than one statutory advocacy route at the same time. Someone subject to a safeguarding enquiry who also lacks capacity may have entitlements under both the Mental Capacity Act 2005 and the Social Services and Well-being (Wales) Act 2014 simultaneously. Where a person is dealing with multiple issues, different advocates can work in parallel, or can become involved at different times.

💡
You do not need to map this out entirely on your own.

This is one reason why the Cardiff and Vale Advocacy Gateway exists as a single point of contact. A referral to CVAG ensures the person's situation is properly triaged and that the right advocacy support, or combination of support, is identified. If you are ever unsure, you can contact CVAG.

The Statutory Routes

Select each legal route below to read the full criteria and understand how it applies to your practice.

Mental Capacity Act 2005 - Independent Mental Capacity Advocate (IMCA)

The Independent Mental Capacity Advocate role was created to safeguard people who lack the mental capacity to make a specific decision and who have nobody appropriate to consult on their behalf. The advocate does not make the decision for the person. Their role is to gather information, represent the person's interests and past wishes, and ensure those are formally considered.

When instruction is mandatory
  • Serious medical treatment decisions
  • Long-term hospital admission (28 days or more)
  • Long-term care home placement (8 weeks or more)
When instruction should be considered
  • Care reviews where no appropriate person is available
  • Adult safeguarding enquiries, including where family are present but not appropriate
  • Deprivation of Liberty decisions
In Practice Capacity is decision-specific and time-specific. Always apply the Mental Capacity Act 2005 principles, including the presumption of capacity, before concluding an advocate is required. The presence of family does not automatically remove the duty if those family members cannot be appropriately consulted.
Safeguarding Under the Mental Capacity Act 2005 (which applies alongside Welsh social services law), there is a specific exception for adult protection cases. In these situations, an Independent Mental Capacity Advocate (IMCA) may be instructed to support and represent a person who lacks capacity even if they have family or friends available to be consulted. This is unique to safeguarding; in most other major decisions (like moves or serious medical treatment), an IMCA is only provided if the person has no one else to support them.

Mental Health Act 1983 and Mental Health (Wales) Measure 2010 - Independent Mental Health Advocate (IMHA)

The Independent Mental Health Advocate role exists for people subject to certain provisions of the Mental Health Act 1983. In Wales, the Mental Health (Wales) Measure 2010 extends these rights, including to some informal hospital patients considering treatment decisions.

Who qualifies?
  • People detained under the Mental Health Act 1983
  • People on Community Treatment Orders
  • People subject to guardianship
  • Informal inpatients receiving assessment or treatment for a mental health disorder whilst in hospital (Wales only)
What an IMHA can help with
  • Understanding rights and legal provisions
  • Participating in care and treatment decisions
  • Accessing records (with consent)
  • Representation in managers' hearings
  • Supporting appeals to the Mental Health Tribunal
In Practice People in mental health settings are often the least likely to feel able to ask for advocacy. The right to an Independent Mental Health Advocate should be actively explained, not simply left in written information that may not be read or understood.

Social Services and Well-being (Wales) Act 2014, Part 10 - Independent Professional Advocacy (IPA)

Independent Professional Advocacy under the Social Services and Well-being (Wales) Act 2014 is a Wales-specific statutory duty. It covers adults with care and support needs (and carers) who are involved in assessments, care planning, reviews, or safeguarding enquiries and who would have difficulty participating without support.

When the duty arises
  • Needs assessments and carer's assessments
  • Care and support planning and reviews
  • Adult safeguarding enquiries and conferences
Who qualifies?
  • Adults with care and support needs facing substantial difficulty participating
  • Carers with needs who would similarly struggle
  • No appropriate person available to support and represent them
In Practice The substantial difficulty test is functional, not diagnostic. Difficulties understanding, retaining, using or weighing information, or communicating views can all trigger this entitlement, regardless of formal diagnosis. An Appropriate Person is someone (a family member, friend, or person from the wider support network) who is willing and able to facilitate an individual's involvement in assessment, care and support planning, review, or safeguarding processes, and cannot be someone the individual does not want to support them, someone unable or unavailable to adequately support that involvement, or someone implicated in an enquiry into abuse or neglect.

NHS and Social Care Complaints (Llais Cymru)

Llais Cymru are commissioned by the Welsh Government to provide advocacy for anyone who wishes to make a formal complaint about National Health Service care or Social Care in Wales. Other advocates can support someone during a complaint process, but this universal pathway is separate from other advocacy routes such as Independent Professional Advocacy, Independent Mental Capacity Advocacy, and Independent Mental Health Advocacy.

What it covers
  • Navigating the NHS and/or social care complaints process
  • Attending complaint resolution meetings
  • Supporting written correspondence
What it does not cover
  • Complaints to other services or bodies
  • Clinical negligence claims
  • General care and support planning
In Practice People may need complaints advocacy and care and support advocacy at the same time. These are parallel pathways that can operate together. 
⚠️

Statutory Advocacy Grey Areas

The situations below frequently cause confusion. These are common situations where people often have need of professional advocacy, but where the issue or circumstance does not necessarily fall under the current legislation. Select each heading to read the practical guidance.

Financial issues - when does statutory advocacy apply?

Advocacy can be appropriate where a financial matter is directly connected to a person's care and support. If someone is significantly struggling to understand a financial assessment as part of their care planning, is facing complex decisions about how their care is funded, or is subject to safeguarding because of their finances, that would usually fall within scope.

However, statutory advocacy does not extend to general financial issues that sit outside care and support - such as debt management, benefit appeals, or broader money advice. These are better supported through Citizens Advice or specialist welfare rights services.

If you are unsure whether a financial issue brings an advocacy entitlement with it, contact CVAG to discuss before concluding it falls outside scope. Non‑statutory professional advocacy options may also exist.
Housing - when is it a care and support issue?

Advocacy can be appropriate where housing is directly connected to a person's care and support needs - for example, where a housing decision forms a significant part of a care and support assessment, or where a person's living situation is central to a review of their needs.

Statutory advocacy does not extend to general social housing matters such as allocations, tenancy disputes, or homelessness applications that are independent of care and support. The line can be genuinely difficult to judge when someone's housing situation is both a social housing issue and a care and support issue at the same time.

In those cases, do not assume advocacy does not apply. Contact CVAG to explore the situation fully before drawing a conclusion. Again, there may be non-statutory advocacy options, as well as alternative support pathways like the Supporting People programme.  
Parents in child protection proceedings - a gap in the law

This is one of the most significant gaps in the current legislative framework. Under the Social Services and Well‑being (Wales) Act 2014, parents involved in child protection proceedings are generally not considered eligible for Independent Professional Advocacy in relation to those proceedings, because the Act focuses on the individual's own care and support needs rather than their role as a parent. Some parents may have care and support needs and potentially qualify for advocacy, but Independent Professional Advocates may still limit their involvement in child protection processes due to the long-term commitment these often have. 

This can feel deeply counterintuitive considering the Act's core values of participation and voice, particularly when the child has care and support needs and the parent is clearly struggling to participate in meetings with no one appropriate to support them. It is important to be honest with colleagues and with families about this gap, and to engage with services early to look at all potential options.

In Practice: the Parental Advocacy Project (Cardiff) In Cardiff there is a specific Parental Advocacy Project delivered by NYAS Cymru for parents entering the Public Law Outline (PLO) stage of child protection proceedings. The project has narrow eligibility and applies specifically at the PLO stage, not earlier or later in the process. Referrals must come directly from the child's social worker.

🔎 Test Your Understanding

Consider the scenarios below and think about which legislation applies. Tap each card to reveal the answer. There are no trick questions, but more than one route may sometimes apply.

Scenario 1

An older person with early-stage dementia but capacity to make an informed decision is being moved to a care home. She has no family.

Which legislation applies? Tap to reveal.

Answer

The SSWb(W)A 2014 applies. She has care and support needs and is facing a significant care decision, which triggers the right to an IPA.

Because she has capacity, the MCA 2005 does not trigger an IMCA right now. Capacity should be kept under review as her condition changes.

Scenario 2

A man detained under Section 3 of the Mental Health Act 1983 wants to challenge his treatment plan.

What is his entitlement? Tap to reveal.

Answer

He has a statutory right to an IMHA under the Mental Health Act 1983. This is automatic for anyone detained under Section 3.

An IMHA can help him understand his rights, his treatment options, and how to challenge decisions through a Mental Health Tribunal.

Scenario 3

A woman with a learning disability finds formal care reviews overwhelming. Her sister usually supports her but is currently unwell.

Which legislation is relevant? Tap to reveal.

Answer

The SSWb(W)A 2014 is the primary route. She has care and support needs and is involved in a review, which triggers the right to an IPA.

Her usual informal support being unavailable makes this more urgent. This is exactly the situation the IPA duty is designed for.

Scenario 4

A parent with a suspected but undiagnosed learning disability is struggling to engage in meetings with Children's Services about their child's care.

What considerations apply? Tap to reveal.

Answer

If the parent has unmet care and support needs of their own, the SSWb(W)A 2014 may apply. A capacity assessment under the MCA 2005 should also be considered.

Where statutory routes are unclear, contact CVAG. Non-statutory parental advocacy may also be available depending on current projects.

Scenario 5

A person is struggling to understand why their housing benefit is being reviewed and how it might affect their care package.

Is this within scope? Tap to reveal.

Answer

The welfare benefit issue itself sits outside statutory advocacy. However, if the review threatens the person's care package and they have care and support needs, the SSWb(W)A 2014 may bring an IPA into scope for that dimension.

Contact CVAG regardless. The team can signpost to welfare rights support and the unmet need will be recorded.

Scenario 6

A person with care and support needs lacks capacity to decide where they should live following a hospital stay. They have no family or close friends involved in their care.

Which type of advocate is required? Tap to reveal.

Answer

This triggers the right to an IMCA under the Mental Capacity Act 2005. The person lacks capacity, has no appropriate person to support them, and a significant decision about accommodation is being made.

All three conditions are met. This is a clear statutory duty and the referral should be made without delay.

Scenario 7

A social worker is confident a referral should go directly to the IMHA service. Should they still contact CVAG first, or refer directly?

What is the right approach? Tap to reveal.

Answer

All referrals should go through CVAG, even when the route seems clear. Routing through CVAG ensures the referral is recorded consistently and nothing is missed.

CVAG is the single point of contact by design. It is not a gatekeeping step. It is how the system stays joined up and how data is captured for commissioning.

Scenario 8

An adult with care and support needs is subject to a safeguarding enquiry. They say they do not want an advocate and that they are fine managing on their own.

How should this be handled? Tap to reveal.

Answer

A person can decline advocacy and that must be respected. However, it is worth making sure they genuinely understand what an advocate is and what they would be declining. Sometimes a brief, clear explanation changes the picture.

Contact CVAG either way. The team can advise on how to present the offer clearly and can record the outcome whether the person accepts or not.

📄 Legislation Links

All links direct to the official UK legislation site, legislation.gov.uk.


Previous Next