The “Substantial Difficulty” Test under the Care Act 2014

Section 67 of the Care Act 2014 imposes a mandatory legal duty on local authorities to provide independent advocacy during care assessments, support planning, and safeguarding enquiries. This duty is triggered specifically when a person is identified as having “substantial difficulty” in engaging with the process. Unlike discretionary support, this is a statutory requirement; failure to appoint an advocate when the threshold is met renders the resulting care plan or assessment legally vulnerable to challenge via judicial review.

Defining the Four Functional Criteria

The determination of “substantial difficulty” is not a clinical diagnosis but a functional assessment of a person’s ability to participate in social care processes. Under the Care Act, an individual meets the threshold if they struggle significantly with one or more of four specific areas.

First, the person must be able to understand relevant information, such as the nature of the assessment or the potential outcomes of a care plan. This includes the ability to process complex details about service provision and legal rights. Second, they must be able to retain that information long enough to engage with the decision-making process. If a person loses the thread of a conversation within minutes, their participation is considered ineffective.

Third, the individual must be able to use or weigh that information as part of the process of being involved. This requires the cognitive ability to look at different options—such as choosing between home care or a residential setting—and understand the trade-offs involved. Finally, the person must be able to communicate their views, wishes, or feelings. Communication is not limited to verbal speech; it encompasses any method through which a person expresses themselves, yet if the individual cannot convey their preferences even with support, the “substantial difficulty” threshold is satisfied.

The “Appropriate Person” Exclusion

The duty to provide a Care Act advocate only applies if there is no “appropriate person” available to support the individual. However, the legal definition of an appropriate person is strict. A family member or friend is not considered appropriate if the individual being assessed does not want that person to support them, or if the person is deemed “unsuitable” by the local authority.

Unsuitability often arises in complex family dynamics. For example, if a relative has a conflict of interest, such as a financial stake in the outcome of a care assessment, or if they are the subject of a safeguarding investigation related to the individual, they are legally disqualified from acting as the support person. Furthermore, the appropriate person must be “able” to facilitate the individual’s involvement. A relative who lives far away or who lacks the cognitive or physical capacity to attend meetings and digest technical care documents cannot fulfill this statutory role, necessitating the appointment of a professional advocate.

Ensuring Compliance with the Wellbeing Principle

The primary objective of the advocate in these cases is to ensure the local authority adheres to the “Wellbeing Principle” outlined in Section 1 of the Act. This principle requires that the individual’s views and wishes are the starting point for any decision.

During care and support planning, the advocate ensures that the local authority does not simply offer a “standard package” of care, but instead considers the person’s specific goals and desired outcomes. The advocate’s role is to scrutinize the assessment process to ensure it is person-centered and that the local authority has met its duty to promote the individual’s physical, mental, and emotional wellbeing. In safeguarding scenarios, the advocate acts as a check against “protective” decisions that might unnecessarily infringe upon a person’s autonomy, ensuring that the “Making Safeguarding Personal” (MSP) framework is applied in practice.