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Appointment rules

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Appointment rules 2019


About these rules

These rules focus on the appointment of people to fulfil a number of roles. This includes inspectors whom we may appoint in connection with the approval or re-approval of any course, qualification or test in relation to social work.

The rules also cover the appointment of, and requirements and restrictions around, three roles in our fitness to practise process – the process that regulators use where there are concerns about the ability of a registrant to practise.

These roles are:

  • investigators, who will undertake enquiries and gather evidence about individual cases
  • case examiners, who will determine whether a case should be taken forward following an investigation, and can (in certain circumstances) agree case outcomes with registrants
  • adjudicators, who will run hearings where they are required to determine the final case outcome, including deciding whether fitness to practise is impaired and, if so, what sanction is appropriate

Adjudicators may also make interim orders to suspend or impose a restriction or condition on a social worker’s practice with immediate effect.

Finally, these rules also deal with the appointment of advisers, who may be appointed to any of the above roles.


Appointment and functions of advisers and constitution of panels of advisers rules 2019

Coming into force in accordance with rule 1

Part 1: Introductory text

Citation and commencement

1.

(1) Social Work England has made these rules in accordance with regulation 3 of The Social Workers Regulations 2018.

(2) These rules are made in exercise of powers conferred by regulation 4(3) and regulation 5 of The Social Workers Regulations 2018.

(3) These rules are to be cited as The Social Work England (Appointment and Functions of Advisers and Constitution of Panels of Advisers) Rules 2019.

(4) These rules come into force on 31st January 2019.

Interpretation

2. In these rules:

  • ‘adjudicator’ means an adviser appointed under regulation 15(12), 16(4),19(3) or 25(7)(c).‘adviser’ means a person appointed under regulation 4(1).
  • ‘case examiner’ means a person appointed under regulation 25(7)(b).
  • ‘inspector’ means a person appointed under regulation 21(2).
  • ‘investigator’ means a person appointed under regulation 25(7)(a).
  • ‘Nolan Principles’ for public life mean the standards set out by Lord Nolan in 1995.
  • ‘panel’ means the adjudicators appointed under regulation 15(3)(a), 16(4), 19(3) and Schedule 2 8(1)(b) and 10(2)(b)and panels of advisers established under Part 3of these rules.
  • ‘public sector equality duty’ means the duty in section 149 of the Equality Act 2010.
  • ‘registered social worker’ means a person holding current registration with the regulator.
  • ‘regulations’ means The Social Workers Regulations 2018.
  • ‘regulation’ means a regulation in The Social Workers Regulations 2018.
  • ‘regulator’ means Social Work England.
  • ‘regulator’s competency framework’ means the regulator’s competency framework published on its website.

Part 2: Advisers

Appointment of advisers

3.

(1)

  • (a)The regulator may appoint to and maintain a list of advisers eligible to fulfil the roles set out in regulation 4(1).
  • (b) When appointing advisers, the regulator must advertise vacancies, and must conduct fair and open recruitment processes.

(2) The regulator must set and publish criteria about the composition of its list with particular regard to achieving an appropriate mix of persons specified in (3)(a) and (3)(b)and having due regard to its obligations under the public sector equality duty.

(3) A person shall only be appointed as an adviser if, as a minimum, they:

  • (a) are a registered social worker and currently practising without restriction or adverse fitness to practise history; and / or
  • (b) have a demonstrable ability to apply professional expertise and knowledge to the work of the regulator.

(4) The regulator is not precluded by (3) from setting and publishing further criteria which a person must satisfy to be appointed as an adviser.

(5) Any person who is to be, or has been, appointed as an adviser must declare to the regulator:

  • (a) any conflict of interest, whether actual or perceived, in relation to any matter on which they undertake duties in the role of adviser, or in relation to any party to the matter.
  • (b) any current or previous personal or professional relationship with an individual who is subject to fitness to practise proceedings, under the regime of any regulator.
  • (c) any caution, criminal conviction or previous criminal investigation to which the person was subject.

(6) Based on information provided under rule 3 (5), and in line with published policy and procedure, the regulator must decide the grounds on which it may suspend or remove a person from holding an appointment as an adviser.

(7)Advisers appointed under this rule must notify the regulator as soon as reasonably practicable of any matter that might call into question their suitability or eligibility to continue to hold an appointment as an adviser.

(8) A person appointed as an adviser holds and ceases to hold the position on the relevant list in accordance with the terms of their appointment.

Suspension or removal of appointment of an adviser

4.

(1) Subject to rule 4(2) where the regulator is in receipt of information that may give grounds to suspend or remove the appointment of a person as an adviser, the regulator must:

(a) notify the adviser that the regulator is considering whether to suspend or remove their appointment as an adviser;

(b) provide the adviser with copies of the information; and

(c) invite the adviser to submit in writing within 28 days any comments on the question of whether their appointment as an adviser should be suspended or removed.

(2)

(a) The regulator may suspend or remove an adviser from their appointment with immediate effect where it considers it necessary to maintain public confidence in the regulation of the profession.

(b) Where the regulator decides to suspend or remove the appointment of an adviser under rule 4(2)(a), it must as soon as practicable:

  • (i) notify the adviser that their appointment has been suspended or removed;
  • (ii) provide the adviser with copies of the information; and
  • (iii) inform the adviser of their right of appeal against the decision.

(3) After the period of 28 days specified in rule 4(1)(c)or on receipt of any comments submitted by the adviser, whichever is the sooner, the regulator may decide to

  • (a) take no further action;
  • (b) suspend the appointment of the adviser; or
  • (c) terminate the appointment of the adviser.

(4) As soon as practicable after making a decision under rule 4(3) the regulator must notify the adviser of the decision and the reasons for it, and inform them of their right of appeal.

Appeals against suspension or removal and publication of decisions

5.

  • (1) An adviser may appeal against a decision by the regulator under rules 4(2)(a) or 4(3)(b) or (c).
  • (2) Where an adviser appeals under rule 5(1), the regulator must appoint two or more individuals, who can be members of the regulator’s staff or advisers or a combination of both, as the regulator thinks fit, to a panel to consider the appeal provided that the persons so appointed may not be individuals who were involved in the decision to remove or suspend that is the subject of the appeal.
  • (3) The regulator and the panel may require persons other than the person concerned to attend before them and give evidence or produce documents.

(4)

  • (a) Subject to rule 5(4)(b) the panel must decide the appeal within 28 days of it being made.
  • (b) The panel may defer determination of the appeal for such period as they see fit where they consider it in the public interest to do so.

(5)

  • (a) The panel may dispose of the appeal with or without a hearing, but they must hold a hearing where the adviser concerned requests it.
  • (b) Where the panel holds a hearing, the adviser may attend and make oral representations.

(6)

(a) In determining the appeal, the panel may:

  • (i) dismiss the appeal;
  • (ii) quash the decision; or
  • (iii) substitute for the decision being appealed any other decision that the regulator could have made.

(b) The panel must provide the regulator with reasons for its determination under rule5(6) (a).

(7) The regulator must notify the adviser concerned of the determination and the reasons for it.

(8) The regulator may publish a determination made under rule 4(2), 4(3) or 5(6) and some or all of the reasons for it, where it considers it necessary to maintain confidence in the regulation of the profession or is otherwise in the public interest.

Appraisal and continuing professional development

6.

(1)

  • (a) The regulator must set and publish criteria and arrangements for appraisal of advisers in the performance of their duties pursuant to membership of a list under rule 3.
  • (b) The arrangements in rule 6(1)(a) must include formal appraisal at least annually in accordance with a published performance management framework.

(2)

  • (a) Advisers must undertake any continuing professional development relevant to their role that the regulator may determine from time to time.
  • (b) A failure by an adviser to undertake continuing professional development determined under rule 6(2)(a) may be reflected in annual appraisal and may be regarded by the regulator as grounds for action under Rule 4.

7.

(1)

  • (a) The regulator must provide such training or written guidance to advisers as the regulator thinks necessary to support the effective discharge of their duties pursuant to their membership of a list.
  • (b) The regulator must publish any guidance provided under rule 7(1)(a).

(2) The regulator may require advisers to provide it with information as to their continuing professional development.

Resignation

8. The regulator must remove from the list maintained under rule 3(1) any person who,by giving notice in writing to the regulator, resigns from their position as adviser.

Facilities

9.

  • (1) The regulator may make such facilities available to advisers that it considers necessary and proportionate to support the advisers in the effective discharge of their duties.
  • (2) The facilities made available under Rule 9(1) may include staff, relevant information, equipment, access to systems and other support and points of contact and liaison with the regulator’s staff.

Part 3: Constitution of panels of advisers

Scope

10. This part applies to the constitution of panels of advisers for the purposes of:

  • (1) restoration hearings under regulation 15, registration appeal hearings under regulation 19, and fitness to practise proceedings under Schedule 2 of the regulations.
  • (2) the provision of advice on matters relating to regulatory functions, in particular the provision of information, specialist or expert advice, or recommendations to the regulator.
Panel membership

11.

(1) Membership of a panel of advisers must be composed of those on the list established in accordance with rule 3(2).

(2) An adviser shall only be appointed to a panel if they can, as a minimum, demonstrate:

  • (a) a commitment to the seven “Nolan Principles” for public life; and
  • (b) an ability to meet the requirements of the regulator’s competency framework.

(3) Subject to Rule 11(4),when deciding the composition of panels of advisers, the regulator will have regard to:

  • (a)the different purposes for which panels can be established; and
  • (b) the appropriate number of panel members based on the purpose of the panel.

(4) A panel must be composed of at least two advisers.

Chairs

12.

(1) The regulator must identify on the list maintained under rule3 advisers who are eligible to act as Chairs of panels of advisers.

(2) An adviser shall only be appointed as a Chair if, as a minimum, they:

(a) meet the criteria in rule 11(2); and

(b) can demonstrate an ability to:

  • (i) Facilitate constructive and productive panel discussions, enabling all panellists to contribute to decision making and managing disagreements between panellists
  • (ii) Run hearings effectively and efficiently.
  • (iii) Take responsibility for the preparation and clarity of the panel’s reasoning.

(3) The regulator must, having regard to the different purposes for which panels of advisers can be established, appoint a Chair in respect of proceedings, from the persons identified in accordance with (1).

(4) If the person selected under rule 12(1) is unavailable for the whole or part of the proceedings or becomes ineligible to act as Chair during the course of any proceedings, then the regulator may appoint another panel member, present at the start of the proceedings, to act as Chair for the whole or part of the proceedings.

Validity of proceedings

13. The validity of any proceedings of a panel of advisers is not to be affected by any defect in the appointment of an adviser.

14.

(1) This rule applies to panels established under rule 11where a panellist is unavailable for the whole or part of any proceedings or becomes ineligible to act during the course of any proceedings.

(2) Where rule 14(1) applies the hearing may proceed notwithstanding that:

  • (a) Any panellists present at the start of the hearing are no longer present; or
  • (b) Any panellists present at the continuation of the hearing were not present at the start.

(3) Rule 14(2) does not apply where the regulator considers that it is in the interests of justice to convene a freshly constituted panel.

Explanatory Note

(This note is not part of the rules)

These rules are made pursuant to regulations 4 and 5 of The Social Workers Regulations 2018.

Rules 3 to 9 set out how Social Work England (‘the regulator’) must appoint to and maintain lists of advisers for the purposes of carrying out specific functions in respect of education, registration and fitness to practise and for the provision of advice to the regulator. The Rules enable the regulator to suspend or remove an adviser’s appointment. The Rules also make provision for a process of appeal for advisers against suspension or removal.

The rules require the regulator to provide training and written guidance for advisers, and to publish any such guidance. The Rules require the regulator to set and publish criteria for the appraisal of advisers.

Rules 10 to 12 provide for the appointment of advisers to panels for the purposes of adjudicating in registration and fitness to practise hearings and for the provision of advice. The regulator must keep a list of advisers eligible to act as panel Chairs and must appoint a Chair to each panel.

Rules 13 and 14 provide that the validity of the proceedings of panels are unaffected by certain specified defects.


Investigators, case examiners, adjudicators and inspectors rules 2019

Coming into force in accordance with rule 1

Part 1: Introductory text

Citation and commencement

1.

  • (1) Social Work England has made these rules in accordance with regulation 3 of The Social Workers Regulations 2018.
  • (2) These rules are made in exercise of powers conferred by regulation 21(3)(a) and (b)and regulation 25(5)(c) of The Social Workers Regulations 2018.
  • (3) These rules are to be cited as The Social Work England (Investigators, Case Examiners, Adjudicators and Inspectors) Rules 2019.
  • (4) These rules come into force on 31stJanuary 2019.
Interpretation

2. In these rules:

  • ‘adjudicator’ means a person appointed under regulation 25(7)(c).
  • ‘case examiner’ means a person appointed under regulation 25(7)(b).
  • ‘inspector’ has the meaning given in regulation 21 (2).
  • ‘investigator’ means a person appointed under regulation 25(7)(a).
  • ‘Nolan Principles’ for public life mean the standards set out by Lord Nolan in 1995.
  • ‘regulations’ means The Social Workers Regulations 2018.
  • ‘regulation’ means a regulation in The Social Workers Regulations 2018.
  • ‘regulator’ means Social Work England.
  • ‘schedule’ means a schedule of The Social Workers Regulations 2018.
  • ‘scheme’ means the education and training approval scheme defined in regulation 20.

Part 2

Investigators, case examiners and adjudicators

3. Investigators, case examiners and adjudicators must be appointed by the regulator under regulation 25(7) for the purposes of fitness to practise proceedings.

Requirements of investigators

4. (1) The requirements of an investigator shall be to carry out the functions assigned to that role in Schedule 2 and regulation 25(6) of the regulations and shall include:

  • (a) Planning investigations, including case management and risk assessment of fitness to practise investigations.
  • (b) Obtaining all relevant information required for effective investigation into whether a registered social worker’s fitness to practise is impaired.
  • (c) Assessing the information.
  • (d) Presenting reports detailing recommendations for case closure or referral for further action.

(2) A person shall only be appointed as an investigator if they can, as a minimum, demonstrate relevant experience in one or more of the following:

  • (a)Maintaining accurate records, case information and other records.
  • (b) Using analytical skills, exploring investigative options.
  • (c) Multi-agency working, sharing sensitive information and maintaining confidentiality with external stakeholders.

(3) This list shall not preclude the regulator from setting and publishing further criteria which a person must satisfy to be appointed as an investigator.

Requirements of case examiners

5.

(1) The requirements of a case examiner shall be to carry out the functions assigned to that role in Schedule 2 and regulation 25(6) and to carry out the regulator’s functions under regulation 26 of the regulations and shall include:

(a) Determining appropriate next steps in cases referred by investigators.

(b) Identifying and evaluating any additional evidence required to make determinations about whether there is a realistic prospect that adjudicators will determine that fitness to practise is impaired and whether it is in the public interest for the case to proceed to a fitness to practise hearing.

(c) Making substantive determinations:

  • (i) If there is no realistic prospect that adjudicators would determine that the social worker’s fitness to practise is impaired, deciding the appropriate outcome for the case.
  • (ii) If there is a realistic prospect that adjudicators would determine that the social worker’s fitness to practise is impaired, providing all necessary information for adjudicators to consider or by disposing of the case without a hearing where appropriate.

(2) A person shall only be appointed as a case examiner if they can, as a minimum, demonstrate relevant experience in one or more of the following:

(a) A demonstrated commitment to the ‘Nolan Principles’ for public life.

(b) Applying professional expertise and knowledge in different settings.

(c) Contributing to sound, impartial, independent and objective decision-making by exercising reasoned judgement.

(d) Providing written outcomes, explaining and justifying decisions in an accurate, concise and factual manner, using language appropriate to a broad range of interested parties.

(3) This list shall not preclude the regulator from setting and publishing further criteria which a person must satisfy to be appointed as a case examiner.

Requirements of adjudicators

6.

(1) The requirements of an adjudicator in fitness to practise proceedings shall be to carry out the functions assigned to that role in Schedule 2 and regulation 25(6), and shall include:

  • (a)Determining whether a social worker’s fitness to practise is, or continues to be, impaired.
  • (b) Deciding as appropriate if regulatory action is required and if so, issuing appropriate sanctions and outcomes.

(2) A person shall only be appointed as an adjudicator if they can, as a minimum, demonstrate relevant experience in one or more of the following

  • (a) A demonstrated commitment to the ‘Nolan Principles’ for public life.
  • (b) Applying professional expertise and knowledge in different settings.
  • (c) Contributing to sound, impartial, independent and objective decision-making by exercising reasoned judgement.
  • (d) Providing written outcomes, explaining and justifying decisions in an accurate, concise and factual manner, using language appropriate to a broad range of interested parties.

(3) This list shall not preclude the regulator from setting and publishing further criteria which a person must satisfy to be appointed as an adjudicator.

Conflicts of interest

7.

(1) Any person who is to be, or has been, appointed as an investigator, case examiner or adjudicator must declare to the regulator:

  • (a) any conflict of interest, whether actual or perceived, in relation to the individual subject of proceedings or in relation to the complainant;
  • (b)any current or previous personal or professional relationship, where known, with an individual who is subject to fitness to practise proceedings, under the regime of any regulator; or
  • (c)any caution, criminal conviction or previous criminal investigation to which the person was or has become subject.

(2) Based on information provided under rule 7(1), and in line with published policy and procedure, the regulator must decide whether it is appropriate or not for the person to act, or continue acting, as an investigator, case examiner or adjudicator.

Restrictions

8.

(1)The following categories of person may not act as investigators, case examiners or adjudicators:

  • (a)A person to whom regulation 25(8) applies;
  • (b)A person who is subject to a fitness to practise sanction or ongoing fitness to practise inquiry, under the regime of any regulator; or
  • (c)A person who is subject to a criminal conviction or ongoing criminal investigation.

Part 3: Inspectors

The role of an inspector

9.

(1) Inspectors maybe appointed by the regulator to carry out the function specified in regulation 21(1) of the regulations.

(2) The role of an inspector shall be to perform functions in support of the education and training approval scheme, to include:

  • (a)Visiting institutions that deliver or seek to deliver courses subject to the scheme.
  • (b)Meeting with staff delivering and students enrolled on courses
  • (c)Reviewing course documentation and final assessment criteria, including examination.
  • (d)Attending final examinations and assessments to assess their rigour and scope.
  • (e) Preparing reports for each inspection and submitting these to the Registrar, along with any supporting documentation, with recommendations in relation to the awarding or maintaining of approval under the scheme.
Knowledge, skills or experience necessary to undertake the role of inspector

10. A person shall only be appointed as an inspector if they can, as a minimum, demonstrate relevant experience in one or more of the following:

  • (a)Working in quality assurance, education or healthcare regulation or equivalent.
  • (b)Using analytical information and evidence gathering and synthesis to inform decisions against a risk-based methodology.
  • (c)Making sound, impartial and reasoned decisions, together with the ability to remain independent and objective at all times.
Conflicts of interest

11.

(1) Any person who is to be, or has been, appointed as an inspector must declare to the regulator:

  • (a) any conflict of interest, whether actual or perceived, in relation to any relevant institution that will be, or has been, subject to inspection.
  • (b) any current or previous personal or professional relationship with any institution or its agents that will be, or has been, subject to inspection.
  • (c) any caution, criminal conviction or previous criminal investigation to which the person was subject.

(2) Based on information provided under rule 11(1), and in line with published policy and procedure, the regulator must decide whether it is appropriate or not for the person to act, or continue acting, as an inspector.

Restrictions

12. A person may not carry out the role of inspector if they are:

  • (a)A person who is subject to a fitness to practise sanction or ongoing fitness to practise inquiry, under the regime of any regulator.
  • (b)A person who is subject to a criminal conviction or ongoing criminal investigation.

Explanatory note

(This note is not part of the rules)

These rules are made pursuant to regulation 21(3)(a) and (b) and regulation 25(5)(c) of The Social Workers Regulations 2018.

Rule 3 sets out that case examiners, investigators and adjudicators must be appointed for fitness to practise proceedings.

Rule 4 to 6 set out the requirements for performing each of the roles of case examiner, investigator and adjudicator.

Rules 7 requires case examiners, investigators and adjudicators, or those to be appointed as case examiners, investigators and adjudicators, to declare any conflict of interest.

Rule 8 sets out persons who cannot be appointed as case examiners, investigators and adjudicators.

Rule 9sets out the role of an inspector and the tasks they are required to carry out.

Rule 10 sets out the minimum experience that a person must have in order to be appointed as an inspector.

Rule 11 requires inspectors, or those to be appointed as inspectors, to declare any conflict of interest.

Rule 12 sets out when a person cannot be appointed as an inspector. 


Investigators, case examiners, adjudicators and inspectors (amendment) rules 2019

Coming into force on 31 July 2019

Citation and commencement

1.These Rules may be cited as the Social Work England (Investigators, Case Examiners, Adjudicators and Inspectors) (Amendment) Rules 2019 and come into force on 31 July 2019.

Amendment of Rules

2. The Social Work England (Investigators, Case Examiners, Adjudicators and Inspectors)Rules 2019 are amended as follows.

(a) In rule 2 (interpretation)—

(i) omit the definition of ‘regulations’

(ii) for the definition of ‘regulation’ substitute “means a regulation in The Social Workers Regulations 2018, and ‘Regulations’ shall be construed accordingly”.

(iii) for the definition of ‘regulator’ substitute“ means Social Work England or a person carrying out the functions of the regulator as set out in the Regulations”.

(b) In rule 7(conflicts of interest)—

(i)for paragraph (1)(c) substitute “any caution or conviction (including a conviction by court martial) received in England and Wales for any criminal offence, or any conviction for an offence which, if committed in England and Wales, would constitute a criminal offence.”

(ii) after paragraph (1)insert—

“(1A) Any declaration made in accordance with rule 7(1)(c)will be considered on its merits by the regulator, taking into account:

(a)the relevant provisions of the Rehabilitation of Offenders Act 1974 (as amended);and

(b)the regulator’s over-arching objective to protect the public as set out in section37 of the Children and Social Work Act 2017”.

(c) In rule 8(1)(restrictions)—

(i) insert “or” after sub-paragraph (a)

(ii) omit “or” after sub-paragraph (b),

(iii) omit sub-paragraph (c).

(d) In rule 11 (conflicts of interest)—

(i) for sub-paragraph (1)(c)substitute “any caution, criminal conviction or previous criminal investigation. Decisions on appointments will be made on a case by case basis.“

(ii) After paragraph (1) insert—

“(1A) The regulator’s decision making will be informed by its public protection duties as a regulator and will be in accordance with the Rehabilitation of Offenders Act 1974(as amended)”.

(e) For rule 12(restrictions)substitute—

“A person may not carry out the role of inspector if they are subject to a fitness to practise sanction or ongoing fitness to practise inquiry, under the regime of any regulator.”


Version history

13 August 2019: Specific amendments have been made to these rules in order to remove the blanket prevention from application for particular roles based on a criminal conviction, which aligns with what we said we would do in our consultation response.

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