Case examiner guidance

Last updated: 16 December 2022

• About this guidance
• About Social Work England
• Understanding this guidance
• Part 1: Core values for case examiners
• Part 2: Fitness to practise
• Part 3: The case examiner process
• Part 4: Decision making
• Part 5: Outcomes
• Part 6: Public interest test in referring to a hearing
• Part 7: Disposal without a hearing (accepted disposal)
• Part 8: Actions to be taken after a decision is made
• Part 9: Quality assurance of case examiners’ decisions
 

About this guidance

This guidance is for case examiners in fitness to practise cases.

Public protection is our primary purpose as a regulator. In fitness to practise cases, the goal of case examiners should be to protect the public in a consistent and proportionate way.

This guidance sets out (all of the following):

• the guiding principles and values of the case examiner role
• the fitness to practise process
• the role of the case examiners in this process and their decision making process
• how we quality assure case examiner decisions

This guidance can also help people understand what happens during our fitness to practise process, and the range of possible outcomes.

This guidance is intended to help (all of the following):

• social workers
• employers
• members of the public

About Social Work England

Social Work England’s primary objective is to protect the public. We do this by (doing all of the following):

• protecting, promoting and maintaining the health, safety and wellbeing of the public
• promoting and maintaining public confidence in social workers in England
• promoting and maintaining proper professional standards for social workers in England

As the regulator for social workers in England, we protect the public through our legal responsibilities and powers. These are outlined in (all of the following):

• the Children and Social Work Act 2017 [1](we refer to this as ‘the act’) 
• the Social Workers Regulations 2018 (as amended) [2] (we refer to these as ‘the regulations’)
• the Social Work England Fitness to Practise Rules 2019 (as amended) [3] (we refer to these as ‘the rules’)

We handle concerns about a social worker’s fitness to practise in line with the process outlined in the rules. Our case examiners consider whether there is a realistic prospect of a finding of impairment being made. If so, our legal powers allow them to impose sanctions in certain circumstances when this is agreed with the social worker. There are also other outcomes available if there has been no realistic prospect of finding of impairment. This guidance will focus on the outcomes when cases are considered by the case examiners.

[note 1]: Children and Social Work Act, 2017 http://www.legislation.gov.uk/ukpga/2017/16/pdfs/ukpga_20170016_en.pdf 

[note 2]: The Social Workers Regulations 2018 (as amended) https://www.legislation.gov.uk/uksi/2018/893/contents/made 

[note 3]: Social Work England, Fitness to Practise Rules, 2019 (as amended)

Understanding this guidance

Language used in this guidance

Throughout this guidance, we will use certain words and phrases that have specific meanings. You can refer to these definitions to help you understand the guidance.

Allegations

If case examiners refer the regulatory concerns to a hearing, the concerns will then be referred to as allegations. These will be the allegations that are considered by adjudicators at a fitness to practise hearing.

Can, or cannot

Is able to, or isn’t able to. We use this when something is, or isn’t, possible.

Case investigation report

A document produced by the investigators, which includes (all of the following):

• a summary of the investigation
• a detailed account of the regulatory concerns
• the evidence relied on to support the concerns

The investigators provide this document (and the bundle of evidence) to the case examiners at the conclusion of the investigation. This document is not to be treated as evidence. Rather, it is a tool to be used to understand Social Work England’s case against the social worker.

Concern (initial concern)

Social Work England may receive information that raises a question about the fitness to practise of a registered social worker. This may come from a member of the public, another social worker, or someone else. Where the information we receive suggests, there are reasonable grounds to investigate the social worker’s fitness to practise, it becomes an initial concern. We will refer the case to our investigators for investigation.

Concern (regulatory concern)

Once the investigators have finished investigating an initial concern, they will identify the regulatory concerns. These are the issues that Social Work England are concerned about in relation to the social worker’s conduct, performance or health. These will then progress through the fitness to practise process. This starts with referring the concerns to the case examiners for consideration. These regulatory concerns are related to the initial concern. They may also include additional concerns that the investigators have identified during the investigation.

Decision

When we refer to a decision, we mean a written determination made by the case examiners after (both of the following):

• the application of the realistic prospect test
• the relevant outcomes from applying that test (such as a sanction)

Final orders

This relates to some of the types of sanction that the case examiners can impose. The range of final orders [4] includes (all of the following):

• a warning
• conditions of practice
• suspension
• removal

The case examiners can impose a final order by agreement with the social worker, under the accepted disposal provisions. They can do so where they have found a realistic prospect that adjudicators would make a finding of impairment. Adjudicators can also impose final orders at the conclusion of a fitness to practise hearing, where they have found the social workers’ fitness to practise is impaired.

[note 4]:Paragraph 13(1) of schedule 2 of the The Social Workers Regulations 2018 (as amended

Fit to practise

A social worker that has the skills, knowledge, character and health to practise. They can practise safely, effectively and without restriction. Whether or not a social worker is fit to practise is not just about professional performance.

It also takes into account acts by a social worker that may damage public confidence in the profession. This may include conduct that takes place outside of the workplace, such as acts resulting in criminal investigations.

Fitness to practise process

The entire process, from when Social Work England receive a concern, up to the final determination as to whether the social worker’s fitness to practise is impaired. This includes (all of the following):

• triage
• investigation
• case examiner
• final hearing (consideration by adjudicators)

Impaired, or impairment

This refers to a finding about the social worker’s fitness to practise. There are two elements of impairment: personal impairment and public impairment.

Personal impairment considers whether a social worker is fit to practise both today and in the future.

Public impairment considers whether a finding of impairment is required to uphold the public’s confidence in the profession. This may be the case even if there has been a finding that the social worker’s practise is not personally impaired.

Insight

The social worker correctly recognises and fully acknowledges what went wrong. Social workers may demonstrate no insight, some (or partial) insight, or full insight. More detail about insight is included in the guidance below.

May, or may not

Is allowed to, or isn’t allowed to.

Might, or might not

Is possible, but might or might not happen. We use this term when referring to a potential outcome.

Must, or must not

Has to do, or not do, something. We use this term when referring to something that is either mandatory (must) or prohibited (must not).

Outcome

An outcome is the determination made by the case examiners. This can include the following findings (any of the following):

• no realistic prospect that adjudicators would determine the social worker’s fitness to practise is impaired
• realistic prospect that adjudicators would determine the social worker’s fitness to practise is impaired, and there is a public interest in the case being referred to a hearing
• realistic prospect that adjudicators would determine that the social worker’s fitness to practise is impaired, there is no public interest in referring the case to a hearing and imposing a sanction with the consent of the social worker (accepted disposal)

Public interest and public protection

Definitions for these terms are provided throughout this guidance.

Registered and registration

Social workers must be registered with Social Work England to have the right to practise in England. We sometimes refer to social workers as ‘holding registration.’ Social workers must renew their registration annually.

Remediation and remedial work

We use this term to talk about ways the social worker has demonstrated they have improved their practise to address the fitness to practise concerns.

Remediation is best shown by evidence, such as, but not limited to:

• completion of education or training courses
• satisfactory performance appraisals

Remediation can include things the social worker has done to make amends. For example, apologising to the person who has raised a concern about them. More detail about remediation is included in the guidance below.

Sanction

A sanction may be imposed by the case examiners under the accepted disposal process where they have found a realistic prospect of a determination of impairment being found by the adjudicators. For a full list of available sanctions, read the sanctions guidance.

Should, or should not

Is advised to, or is advised not to. We use this term when something is recommended, but not mandatory.

Triage process

This refers to Social Work England’s process when information is received raising concerns about a social workers fitness to practise. Further information about the triage process can be found in the triage guidance.

Using numbered paragraphs

Starting from the next page, we have arranged this guidance in numbered paragraphs. The information is not in a list or ordered by importance. The numbers make it easier for case examiners (and others involved in the fitness to practise process) to find and refer to specific points.

Part 1: Core values for case examiners

Public interest

1. Social Work England’s primary objective is to protect the public. There are 3 elements to this objective:

• protect, promote and maintain the health, safety and wellbeing of the public
• promote and maintain public confidence in social workers in England
• promote and maintain proper professional standards for social workers in England

Case examiners have a duty to act in compliance with this objective.

2. We meet the public interest (in respect of social work in England) by (doing all of the following):

• declaring and enforcing a set of professional standards for social workers
• carrying out a fitness to practise process when a social worker is considered not be upholding those standards
• responding to fitness to practise concerns proportionately

3. Social Work England’s fitness to practise process is guided by the good practice principles outlined in the Professional Standards Authority’s report ‘Right Touch Reform’ and the standards of good regulation. [5]

4. In most cases, publishing fitness to practise decisions (and their reasoning) will satisfy the public interest. This includes cases that don’t require a hearing. For example, when cases are concluded through accepted disposal. More information on how we publish decisions can be found in our publication policy.

5. Occasionally, a case may raise an issue so serious that we must hold a public hearing. This may be necessary to uphold the public’s confidence in the profession. In these circumstances, the case examiners are responsible for considering the public interest and referring the case to a hearing.

Fairness and proportionality

6. We are committed to making sure our processes are fair and proportionate. This includes our processes for dealing with concerns raised about social workers. Any sanction we impose (as a result of a fitness to practise investigation) must be the minimum necessary. This means it should be the least restrictive sanction necessary to protect the public, including taking account of the wider public interest.

7. Case examiners must demonstrate a commitment to The 7 Principles of Public Life (also known as the ‘Nolan Principles’) [6]. Case examiners must also meet each of the requirements set out in Social Work England’s appointment rules [7].

8. Once appointed, case examiners must (do all of the following):

• undergo formal appraisal at least once a year
• regularly do continuing professional development
• declare any actual or perceived conflicts of interest in any case we ask them to consider

9. We are fully committed to impartiality and consistency in our decision making. This guidance supports and promotes this commitment.

[note 5]:Professional Standards Authority, Right Touch Reform, 2017, https://www.professionalstandards.org.uk/docs/default-source/publications/thought-paper/right-touch-reform-2017.pdf?sfvrsn=2e517320_7 ;
Standards of Good Regulation 2019 | PSA (professionalstandards.org.uk)

[note 6]:Committee on Standards in Public Life, The 7 Principles of Public Life, 1995, https://www.gov.uk/government/publications/the-7-principles-of-public-life

[note 7]:Social Work England, Appointment Rules - (Investigators, Case Examiners, Adjudicators, and Inspectors), 2019

Part 2: Fitness to practise

What we mean by fitness to practise

10. Social workers play a crucial role in society. They empower people to improve their chances in life and are entrusted with their safety on a daily basis. The public both expect and deserve social workers to (both of the following):

• put the interests of those they are supporting first
• be capable of delivering a service that is safe and effective

By acting in a safe, effective and professional manner, social workers safeguard the public’s confidence in the social work profession.

11. When we say that a social worker is fit to practise, we mean that they have the skills, knowledge, character and health to practise their profession safely and effectively. We set out our expectations of social workers in the Social Work England Professional Standards 2019 [8] (‘the standards’). We assess a social worker’s fitness to practise in accordance with the standards.

12. Fitness to practise concerns aren’t just about professional performance. They may include any action or behaviour that may damage public confidence in the profession. This includes conduct that takes place outside of the workplace, and any acts resulting in criminal investigations.

13. We understand the challenges involved in social work and we know that sometimes mistakes can be made. Wherever possible, we will work with social workers and support them in addressing any problems they encounter.

14. If case examiners decide there is a realistic prospect of a social worker’s fitness to practise being found impaired, this means they have serious concerns about the social worker’s ability to practise safely, effectively, or professionally. When this happens, they may decide to restrict a social worker’s right to practise or (in particularly serious cases) remove their right to practise. This will be carried out in line with our fitness to practise process.

15. The fitness to practise process is designed to (do all of the following):

• address serious shortcomings (including issues of conduct, competence or health)
• safeguard service users and their families who are potentially at risk
• safeguard public confidence in the social work profession

16. This process is not designed to punish social workers for mistakes. Isolated mistakes are unlikely to be repeated if a social worker recognises what went wrong and takes action to make sure it doesn’t happen again. In these circumstances, we are unlikely to consider a social worker’s overall fitness to practise impaired.

[note 8]:Social Work England, Professional Standards, 2019

The fitness to practise process

17. Our fitness to practise process aims to protect the public as efficiently and effectively as possible. This guidance sets out the realistic prospect test and how to apply it. It also sets out the possible outcomes of the test, which will be (one of the following):

• case closed without further action (if there is no realistic prospect)
• referral to a hearing (if there is a realistic prospect and a public interest in referring the case to a hearing)
• accepted disposal, with the consent of the social worker (if there is a realistic prospect, but the case examiners find no public interest in referring the case to a hearing)

18. If a case qualifies for accepted disposal, case examiners can propose any sanction available (as per the sanctions guidance). However, the case examiners must refer the case to the adjudicators in cases where (any of the following apply):

• the social worker does not accept a proposed sanction
• the social worker contests the key facts
• the case examiners decide it’s in the public interest to hold a hearing

19. By the time cases reach the case examiners, the cases will have gone through a thorough investigation process. At this point, the case examiners must make a considered decision as to whether there is a realistic prospect that the adjudicators would determine that the social worker’s fitness to practise is impaired.

20. There are 6 key stages to the fitness to practise process. The first 2 of these stages happen before the case examiners receive the case.

Stage 1: triage

21. When someone raises a concern with us, the triage team considers the concern first. The triage team consider whether there are reasonable grounds for investigating whether the social worker’s fitness to practise is impaired. If they think the social worker should be investigated, they will refer the concern to the investigations team.

Stage 2: investigation

22. We then assign the case to both a lead investigator and an additional investigator. First, the investigators will advise the social worker of the concerns that they are going to investigate. They will offer the social worker the opportunity to give a written response. They will also request further information from the social worker, including employment details, and whether they are registered with another regulatory body.

23. The investigators may gather further information or documents, to give them a full understanding of the case. They may request additional information from (any of the following):

• the social worker
• other people or organisations

24. Once the investigators have concluded their investigation, they complete a case investigation report. They also prepare a bundle of documents containing the evidence for the case examiners to consider. They will generally provide the social worker with the case investigation report and bundle of documents. They do this to allow the social worker to provide a further response to the concerns.

25. The investigators may also provide the complainant with a copy of the social worker’s response and seek further submissions from the complainant. They may do this if (one or more of the following):

• they feel it is appropriate and relevant
• the social worker’s response has revealed new or conflicting evidence

Stage 3: case examination

26. We allocate all cases that have been investigated to a pair of case examiners. The pair will always include (both of the following):

• a lay case examiner (someone with no background in the social work profession)
• a professional case examiner (a practising and registered social worker)

27. The pair of case examiners will examine the evidence. They will then decide whether there is a realistic prospect that the adjudicators would determine that the social worker’s fitness to practise is impaired at a hearing. We call this the ‘realistic prospect test’. If the case examiners decide that there is a realistic prospect, they will then consider whether holding a hearing would be in the public interest. If they consider there is no public interest in holding a hearing, they will then consider if there is sanction that they can apply to ensure public protection. If so, they will identify an appropriate sanction and seek the consent of the social worker to impose that sanction. We call this process ‘accepted disposal’. If the sanction is accepted, we will close the case without proceeding to a hearing.

Stage 4: Pre-hearing case management

28. If the case examiners determine that a hearing is necessary, they refer the case to the adjudicators. At this stage, our external legal provider prepares the case for a hearing. This involves (all of the following):

• interviewing and taking statements from people that can provide relevant evidence in relation to the regulatory concerns (witnesses)
• gathering further documentary and other evidence
• establishing with the social worker which facts of the case they admit to, and which they are contesting

29. We will appoint an advocate (from the external legal provider) to present the case at a hearing on behalf of Social Work England. Our advocate will also produce a formal statement of case. This sets out (in detail) the basis on which it is alleged that the social worker’s fitness to practise is impaired.

Stage 5: hearing

30. At the hearing, our advocate sets out the evidence relating to the allegations about the social worker’s fitness to practise. This includes calling witnesses to give evidence. The social worker or their representative has an opportunity to (do all of the following):

• respond to the allegations
• question any witnesses called by Social Work England
• call witnesses of their own
• make submissions on facts, impairment and/or sanction

31. The adjudicators’ task is to determine whether the social worker’s fitness to practise is impaired. This means they decide (all of the following):

• whether the alleged facts have been proved (either through admissions by the social worker or based on evidence heard at the hearing)
• whether the proven facts amount to the statutory grounds as set out in the allegation
• whether the social worker’s fitness to practise is currently impaired

32. If the adjudicators decide that the social worker’s fitness to practise is impaired, they then consider whether a sanction is required.

Stage 6: review hearing

33. In some cases, the case examiners or adjudicators will impose conditions of practice or suspend a social worker’s right to practise. In these cases, our hearings team will arrange a review hearing before the order expires. At a review, the adjudicators may (do one of the following):

• extend the period of the order up to a further 3 years
• replace the order with an order that could have been made at the time by the adjudicators or case examiners (as the case may be)
• replace a suspension order with a conditions of practice order (or vice versa)
• revoke the order

Part 3: The case examiner process

Scheduling and allocation of fitness to practise cases

34. The case examiner operations team (also known as the ‘operations team’) are responsible for maintaining an up-to-date schedule of availability for case examiners. Case examiners must provide their availability to the operations team in advance. This ensures the operations team can accurately forecast and assign new cases.

35. Once a case examiner has provided their availability to the operations team, they have committed to working on those days. The case examiner operations manager must authorise any changes to the schedule.

36. The operations team allocate cases in agreement with the case examiner conflict of interest guidance. This guidance outlines the principles and processes they should follow to prevent conflicts of interest. This includes (all of the following):

• doing an initial review of new cases, with reference to the register of interests
• escalating potential conflicts of interest. They should be escalated to either the case examiner operations manager, or the head of adjudications. The case examiner operations manager or the head of adjudications will then decide how to proceed

37. The operations team allocate cases to the case examiners based on the schedule of availability. They also allocate cases based on the following criteria:

• all cases are allocated to a pair of case examiners. The pair will consist of both a lay case examiner, and a professional case examiner
• If a case examiner has a potential conflict of interest, they must not review that case
• the pair of case examiners must have sufficient time at the end of the process to reach a mutual decision, draft, and finalise their written decision. However, they do not have to start their individual reviews of the case on the same date

38. When the operations team assign a case to the case examiners, they will also send an expected completion date. If (at any point in the process) the case examiners feel they will not be able to make their decision by that date, they must notify the operations team immediately.

Mutual decision making

39. The pair of case examiners assigned to a case must reach a mutual decision. This means they must be in unanimous agreement on the outcome.

40. In cases where the pair of case examiners cannot agree on an outcome, they must take all appropriate steps to reach a consensus. Appropriate steps may include (either or both of the following):

• working back through the evidence and various stages of the decision
• reconsidering the issues, they cannot agree on

41. Sometimes the case examiners cannot reach a consensus (even after taking appropriate steps). If this happens, the top priority is maintaining the integrity of the decision making process. The case examiners must do (both of the following):

• declare their disagreement to the operations team
• withdraw from the case

42. The operations team will record the case examiners’ disagreement. They will then assign the case to a new pair of case examiners. They will not inform the new case examiners of the reason why they have been assigned the case. They will also not give any details of the previous case examiners’ disagreement.

Part 4: Decision making

Preliminary matters

43. When the operations team first assign a new case to the case examiners, the case examiners must do an initial review of the case investigation report and the evidence. They should then consider the following preliminary matters.

Identifying conflicts of interest

44. If a case examiner identifies a potential conflict of interest at this stage (or at any stage of a case) they must do (all of the following):

• declare the conflict of interest immediately to the operations team
• avoid further discussion of the case with the other case examiner in their pair
• stop working on the case
• not access any documentation associated with the case, until they receive further instructions from the operations team

45. The case examiner operations manager or the head of adjudications will decide as to how to proceed based on the identified potential conflict. Any decision made will be in line with the case examiner conflicts of interest guidance.

46. The operations team will then provide instructions to the case examiners as to how to proceed, based on the decision made by the case examiner operations manager or the head of adjudications. Any decision made will be in line with the case examiner conflicts of interest guidance.

Opportunity to make submissions

Social worker

47. The case examiners should be satisfied that the social worker has had a reasonable opportunity to respond to the case against them. In accordance with the rules, the investigators are required to (do both of the following):

• notify the social worker of the grounds for investigating their fitness to practise [9]
• provide the social worker with at least 14 calendar days (after notification has been served) to make written submissions [10]

48. The investigators will notify social workers and ask them to provide written submissions soon after the investigation team receive the case. However, they will generally also give them a further opportunity to comment at the conclusion of the investigation. This will be when they provide them with the case investigation report and evidence bundle.

49. There may be circumstances in which they do not provide the case investigation bundle and evidence bundle to the social worker for further comment. This includes where investigators recommend that the case examiners make a finding that there is no realistic prospect of a finding of impairment being made. This is referred to as a recommendation for closure.

50. The decision about whether the social worker has had a reasonable opportunity to comment needs to take account of the circumstances of the case, and what the case examiners would consider fair for the social worker. However, the case examiners will treat the investigators as having completed service when they serve a notice or communication [11] to the social worker by (doing any of the following):

• placing a notice on their online Social Work England account
• sending it by next day delivery service or courier
• leaving it at the social worker’s address
• using their email or postal address provided by the social worker to the regulator
• personal service on the registered social worker or their representative
• serving notice in any of the above ways on the social worker’s nominated representative

51. It is the social worker’s responsibility to keep their contact details (as held by Social Work England) up to date. [12]

[note 9]: Rule 8(a) – Fitness to Practise Rules 2019 (as amended)

[note 10]: Rule 8(d) – Fitness to Practise Rules 2019 (as amended)

[note 11]: Rule 45 – Fitness to Practise Rules 2019 (as amended)

[note 12]: Regulation 16(1) of The Social Workers Regulations 2018 (as amended) which requires a registered social worker to inform the regulator as soon as practicable if they become aware that any of the information registered in relation to them ceases to be accurate. 

Complainant

52. Investigators have the option to allow the complainant to comment on any written submissions the social worker has made (if any). The investigators will normally exercise this option where the social worker’s observations suggest a conflict of evidence. If the investigators ask the complainant to comment, they must give them at least 7 calendar days to make their written submissions. [13]

53. Case examiners should consider whether the complainant was (or should have been) offered an opportunity to comment on the submissions made by the social worker.

[note 13]: Rule 9 of the Fitness to Practise rules 2019 (as amended)

If there has not been reasonable opportunity to comment

54. The case examiners should consider adjourning the case if they are not satisfied that the social worker and/or the complainant has had reasonable opportunity to comment. If they adjourn the case, they should not resume consideration until the social worker and/or the complainant has had an opportunity to submit their comments. The case examiners should communicate this decision to adjourn (and their reasoning) to the operations team. The operations team will then liaise with the investigators about seeking further comments.

Adjournments

55. Where case examiners consider it necessary, they may adjourn their consideration of the case. They will direct the investigators to carry out further actions. The investigators will then return the case to the case examiners for a decision to be made. The following sections cover some reasons that case examiners may adjourn their considerations.

Obtaining further information

56. Case examiners can request additional information or submissions at any time prior to making their decision. However, they should aim to request these as soon as they are assigned a case (and receive the case investigation report and evidence bundle from investigators). Once the case examiners determine that the case should be referred to a hearing, they cannot request any further information or statements. [14]

57. In most cases, the case examiners reach a decision based solely on the material they the investigators have provided. However, in some circumstances, the case examiners are not able to reach a decision without further information.

58. The case examiners should only request further information if it would not be possible to reach a decision without it.

59. Case examiners may request (any of the following):

a. clarification of an alleged fact or piece of evidence that is essential for the case examiners to make a decision

b. that the social worker undergoes a health assessment, or other medical information is provided (such as a letter from the social worker’s general practitioner or other doctor)

c. expert or professional advice on an aspect of the case. For example, if a social worker is in a specialist role, the case examiners may need an expert report to understand the expectations of that role

d. specific additional evidence or information (that is not part of the evidence provided). For example, in relation to matters involving criminal proceedings. This could include a transcript of court proceedings, or sentencing remarks
e. further information or submissions from the social worker, the complainant or other people or organisations

60. Case examiners must not try to source information themselves. Instead, if they consider information is needed for them to make a decision, they should adjourn their consideration of the case and formally request the information.

61. The case examiners must submit any request for information to the operations team in writing. Their request should clearly explain (both of the following):

• what specific information the case examiners need to help them reach their decision
• why they need this information

62. When the operations team get a request for further information, they will record that the case is adjourned. Case examiners must not continue their consideration of a case until (one of the following):

• they have received the additional information they requested
• the investigators inform the case examiners that they cannot provide the information requested

63. The operations team will then send the requests for information to the investigators. The investigators will be responsible for getting any additional information, and for clarifying any facts or evidence with the relevant parties.

64. The case examiners will not have direct contact with the investigators at any time. This is in line with the relevant guidance. The investigators should not ask the case examiners to justify their request. They should not refuse or block the case examiners’ requests. However, they may clarify any request made by the case examiners by speaking to the operations team.

65. After the investigators have requested and received the information (if applicable) the case examiners will update the case investigation report. They should share any new information obtained by the investigators with the social worker. They should then allow the social worker additional time to comment on the updated case investigation report and evidence.

66. In some cases, it may be appropriate to seek further comment from the complainant based on the social worker’s new submissions. However, the investigators will not share medical evidence or advice with the complainant.

[note 14]: Regulation 6(4) of The Social Workers Regulations 2018 (as amended)

Amendments to regulatory concerns

67. In some cases, the case examiners may decide that a material amendment to the regulatory concerns is required. If so, they must do all of the following before they can consider the case again:

• adjourn the case
• ask the investigators to make the amendment
• direct the investigators to seek further submissions from the social worker and/or complainant (if appropriate)

68. A material amendment to the regulatory concerns may include, but is not limited to (any of the following):

• changing or adding a statutory ground of impairment. For example, misconduct or adverse physical or mental health
• adding a new regulatory concern. For example, adding a dishonesty or sexual motivation concern

69. Minor amendments to the regulatory concerns do not require the case examiners to adjourn their case. These may include:

• correction of grammar or spelling in the regulatory concerns

• amending the regulatory concerns to make them more specific. For example, adding or correcting the date an alleged incident occurred

70. When deciding whether an amendment is material or minor, the case examiners should consider the impact of the amendment on both the seriousness of the case and the fairness to the social worker. If the amendment makes the regulatory concerns more serious, it may be unfair for the case examiners to make a decision on the concerns without the social worker having an opportunity to comment. This would suggest the amendment is material rather than minor.

Recommendation for interim order applications

71. The regulations give the adjudicators the power to impose an interim order. An interim order means that the adjudicators have decided to restrict or suspend a social worker’s right to practise during a fitness to practise investigation. The adjudicators may impose an interim order where they consider it is (one or both of the following):

• necessary to protect the public
• in the best interests of the social worker

72. Case examiners can make a recommendation to Social Work England that it may be necessary to make an interim order application. They can make this recommendation at any point they are considering the case. Social Work England will then decide whether to make an interim application. If this is agreed, Social Work England will appoint adjudicators.

73. If case examiners consider an interim order may be necessary, they must provide reasons for their recommendation. They must refer to the evidence they are relying on to support that recommendation.

74. If Social Work England agree that an interim order may be necessary, we will appoint 2 or more adjudicators to consider the application. The adjudicators will consider the interim order application whilst the case examiners continue to review the case.

Grounds for an interim order

75. The case examiners may consider whether an interim order may be necessary on the following grounds (one or both of the following):

• protection of the public, which includes:
  • to protect, promote and maintain the health, safety and well-being of the public
  • to promote and maintain public confidence in social workers in England
  • to promote and maintain proper professional standards for social workers in England
• the best interests of the social worker

This is not the same as deciding that (in their opinion) an interim order should be imposed. They should ask themselves whether an interim order may be necessary.

For example, an interim order may be in the social worker’s best interest if the social worker is putting themselves (or others) at risk by continuing to practise without restriction.

76. In some cases, there may have been a previous interim order application, which did not result in the adjudicators imposing an interim order. Case examiners should be mindful that there needs to be new information (which suggests the risk has changed) to justify a new interim order application.

77. Case examiners should consult our guidance on referral for an interim order for further information on this process.

The realistic prospect test

78. At the end of an investigation, the investigators provide the case examiners with (both of the following):

• the case investigation report
• the bundle of evidence

The case examiners must then apply the ‘realistic prospect test’. This means they decide whether there is a realistic prospect that the adjudicators would determine that the social worker’s fitness to practise is impaired.

79. When applying the realistic prospect test, the case examiners must consider all the information that the investigators have made available to them. They should apply the test when considering whether:

• the facts could be found proven
• the statutory grounds could be established
• the social worker’s fitness to practise may be found impaired

80. The case examiners may consider any documentary or other evidence they are provided with, as long as it is fair and relevant to do so. They must make their decision only on the material before them. They must not attempt to locate additional material themselves (such as from the internet) if the evidence before them is incomplete. If case examiners require further information, they should adjourn and seek further information from the investigators (as set out in the ‘adjournments’ section of this guidance).

The facts

81. The case examiners are not required to determine whether the factual allegations are true or untrue. Rather, they must decide whether there is a realistic prospect that adjudicators would find those facts proved at a hearing, on the basis of the evidence. Case examiners will consider whether there is a realistic prospect that adjudicators could reach a finding on the balance of probabilities. This means that the adjudicators will need to be satisfied that it is more likely than not that an event occurred.

82. In some cases, a witness who can provide relevant evidence, may be reluctant to engage. Case examiners should only discount the evidence if there are no further reasonable steps Social Work England can take to encourage the witness to engage. There are a variety of reasons why a potential witness may be reluctant to engage, such as (either of the following):

• concerns over managing their personal responsibilities (such as work or childcare) if required to attend a hearing
• nervousness about attending a hearing to give evidence

83. Social Work England can provide support to witnesses in a number of ways in advance of a hearing. We will seek to discuss and address any concerns a witness may have about engaging or attending a hearing.

84. The case examiners must not try to resolve conflicts over facts. They cannot challenge the witness evidence or decide whose evidence they would choose if there was a disagreement between witnesses. However, they can assess the weight of the evidence. In some instances where there is a factual dispute, there may be clear and cogent evidence supporting one side of the dispute. This may also be confirmed and supported by other evidence. The evidence to the contrary may also be inconsistent or wholly implausible. If there is a significant evidential dispute, the case may need to be referred to a hearing.

85. The case examiners should be mindful that if the social worker has made admissions to facts, those facts will be found proved by the adjudicators at a hearing. [15]

86. A social worker may offer testimonials at the fact finding stage of an adjudication. These testimonials may address the likelihood of the social worker having acted in the alleged way. Whether such testimonials are admissible at the facts stage (and the weight case examiners should give to them) are complex questions. Case examiners may seek submissions from the parties and legal advice.

[note 15]: Rule 32(c)(i)(aa) of the Fitness to Practise rules 2019 (as amended)

The statutory grounds

87. First, the case examiners must decide if there is a realistic prospect of some (or all) of the facts being found proven. Then, they must then consider whether there is a realistic prospect of the statutory grounds being established in relation to those facts.

88. The statutory grounds of impairment are as follows:

• misconduct
• lack of competence or capability
• a conviction or caution in the United Kingdom for a criminal offence
• a conviction for an offence which, if committed in England and Wales, would constitute a criminal offence
• adverse physical or mental health
• a determination by a regulatory body to the effect that the person’s fitness to practise is impaired
• being included:
  • by the Disclosure and Barring Service in a barred list (within the meaning given in section 60(1) of the Safeguarding Vulnerable Groups Act 2006(a)or article 2(2A) of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007(b)) or
  • by the Scottish Ministers in the childrens’ list or the adults’ list (within the meaning given in section 1(1) of the Protection of Vulnerable Groups (Scotland) Act 2007©)
• not having the necessary knowledge of English

89. This section provides guidance to assist case examiners in applying the realistic prospect test to the relevant statutory ground.

Misconduct

90. There are generally considered to be two types of misconduct. These are (either of the following):

• misconduct which takes place in the exercise of professional practice
• misconduct which occurs outside the exercise of professional practice, but calls into question the suitability of the person to work as a social worker

91. The misconduct must be serious to reach the threshold for the realistic prospect test. It must represent a risk to the public or to the wider public interest, such as confidence in the profession or maintenance of the professional standards.

92. Examples of misconduct may include (any of the following):

• abuse of position
• dishonesty
• sexually motivated conduct
• failure to safeguard service users

93. The case examiners should also assess misconduct against our standards (and relevant guidance about those standards).

94. The case examiners should assess whether a social worker’s conduct has fallen short of what would be expected in the circumstances.

Lack of competence or capability

95. Lack of competence or capability is a separate and distinct category of impairment from misconduct. Lack of competence or capability suggests a standard of professional performance which is unacceptably low. It means a social worker has demonstrated that they may lack the knowledge and skills to do their work in a safe and effective manner. This must usually be demonstrated over a fair sample of a social worker’s work. There is no set definition of ‘fair sample’, but it suggests a sample sufficient to show the social worker’s usual standard of work over a period of time.

96. Single episodes or incidents do not normally suggest a social worker lacks the knowledge or skills to be competent. In exceptional circumstances, a single episode or incident could happen because of a lack of knowledge or competence in a fundamental principle of social work. This may raise concerns for public safety. In such cases, case examiners may make a finding of impairment and decide to place a sanction on the social worker’s practise and registration.

Allegations pleaded in the alternative

97. There will be occasions where the statutory grounds are pleaded in the alternative. This may be where there are a range of possible interpretations that could be drawn. For example, where a regulatory concern could amount to misconduct and/or lack of competence. When making their decision, case examiners will be required to consider all statutory grounds alleged but case examiners are encouraged (where possible) to identify the appropriate statutory ground to proceed on as this provides clarity as to the basis of Social Work England’s case against the social worker.

98. However, case examiners should bear in mind that if they refer a case to a hearing, that they may not always be in the best position to identify one ground over another as there is likely to be more investigation after their decision and preferring one ground over another may restrict the range of issues the adjudicators may be able to consider at a hearing. For example, if case examiners identify lack of competence as the appropriate ground rather than misconduct and there is subsequent evidence which suggests the case is not a lack of competence case but more appropriately a misconduct case, Social Work England may be hampered in their ability to take forward the concerns on the basis of misconduct. Therefore, the adjudicators may not be able to make a decision on misconduct grounds.

Criminal convictions and cautions

99. Where a registered social worker has been convicted of a criminal offence, either of the following will be conclusive proof of the conviction:

• a certified copy of the certificate
• memorandum of conviction

The findings of fact upon which the conviction is based will be admissible as proof of those facts. [16] As such, case examiners should not question the basis of the conviction.

100. The case examiners should not give any weight to the social worker arguing (either of the following):

• that they are not guilty of the offence
• that they did not realise what they were admitting to

101. Case examiners can still consider the background facts and circumstances surrounding the conviction. However, these will be more relevant to the question of impairment. They should not be used to undermine the basis of the conviction.

102. Some types of criminal convictions are considered so serious that the realistic prospect of impairment test has already been satisfied. These include (either of the following):

• convictions for non-listed offences that carry a custodial sentence
• convictions for listed offences where the social worker has not been automatically removed from the register (that is where the offence was committed before 2 December 2019) [17]

This means the case examiners only need to consider whether the case should be referred to a hearing in the public interest.

103. In some cases, a person may have admitted to committing a criminal offence, but the police considered court proceedings to be unnecessary. In these cases, police will issue a caution. The issuing of a caution acknowledges the admission of guilt and suggests the offence is of a lower severity.

[note 16]: Rule 35A of the Fitness to Practise Rules 2019 (as amended) 

[note 17]: Schedule 2 Paragraph 1 (2) of the The Social Workers Regulations 2018 (as amended)

Health

104. In some cases, case examiners will consider a regulatory concern where a social worker’s fitness to practise is alleged to be impaired because of their health. If so, the case examiners are reminded that having a health condition does not necessarily mean the social worker’s fitness to practise may be found impaired. The key questions they should consider are whether the social worker (both of the following):

• is managing their health condition
• has sufficient insight to limit their practice when they are ill

Some mental health conditions are recurring and episodic. In these cases, the key question is whether the social worker is capable of recognising and acting on an onset of a new episode.

105. When considering a health concern, the case examiners will usually have the benefit of a health assessment obtained by the investigators. This should set out whether there is a health condition (and whether this condition impairs the social worker’s fitness to practise).

106. The case examiners should also consider the health guidance.

Determination by another regulatory body

107. A 'regulatory body’ is defined as a body which authorises a person to practise a health or social care profession which is regulated under any enactment, whether in the United Kingdom or elsewhere. [18] This statutory ground is most likely to arise where the social worker holds registration with another UK regulator. For the case examiners to find a realistic prospect of this ground being established, the other regulatory body must have found impairment.

[note 18]:Regulation 2 of The Social Workers Regulations 2018 (as amended)

Barred list

108. To be satisfied that there is a realistic prospect of the adjudicators establishing this ground, the case examiners should be satisfied that there is evidence of the social worker being included by (either of the following):

• the Disclosure and Barring Service in a barred list
• the Scottish Ministers in the childrens’ list or the adults’ list

Not having the necessary knowledge of English

109. Investigators, case examiners and adjudicators may (do both of the following): [19]

• direct a social worker to do an English language assessment test
• draw such inferences they deem appropriate if the social worker fails to do an examination or assessment as directed (or fails to provide or disclose any evidence)

110. Before considering whether to direct an English language assessment, investigators will consider if there is sufficient, objective evidence of a concern in relation to the social worker’s knowledge of English language.

111. In some cases, the investigators may not have directed an assessment, but the case examiners may consider it fair and relevant to do so. If so, case examiners can also direct the social worker to do an assessment. They would then have to adjourn the case for this assessment to be done.

112. If the social worker fails to complete a language assessment after being directed, then the case examiners can draw from this the conclusion they deem appropriate. This may be a negative conclusion. For example, the negative conclusion might be that the social worker did not complete the assessment because they would not be able to meet the required standard.

113. However, the case examiners should consider whether there may be reasonable circumstances to explain the failure before they draw a negative conclusion. For example, if the social worker was unwell or unable to attend an assessment.

[note 19]: Schedule 2, paragraph 6 (a) and (b) of The Social Workers Regulations 2018 (as amended)

Impairment

114. Not every case where the statutory ground has been found necessarily means that the social worker’s fitness to practise is impaired. There are 2 elements to impairment; the personal element and the public element.

115. Case examiners will assess whether there is realistic prospect of a finding of current impairment of a social worker’s fitness to practise. When doing this, they will consider [20] whether the conduct (all of the following):

• is easily remediable by the social worker
• has already been remedied by the social worker
• is highly unlikely to be repeated by the social worker in future

This is what we refer to in this guidance as “personal impairment element”.

116. Case examiners must also consider whether a finding of impairment is necessary to promote and maintain (one or more of the following):

• public confidence in social workers in England
• proper professional standards for social workers in England

This is what we refer to in this guidance as the question of “public impairment element”.

117. Public impairment takes into account whether a finding of impairment is necessary to uphold the public’s confidence in the profession. Case examiners may find that there is public impairment even if (one or more of the following):

• there is no personal impairment
• they do not consider the social worker presents a risk to the public [21]

118. Decisions makers must consider both elements of the impairment test (personal and public) with equal weighting.

[note 20]: See relevant case law in Annex 1: Cohen v GMC [2008] EWHC 581 (Admin) and CHRE v Grant and NMC [2011] EWHC 927 (Admin)

[note 21]: Bolton v Law Society [1994] 1 WLR 512: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.’ 

Personal impairment

119. There are multiple factors that case examiners should consider when making a decision about personal impairment. These include, but are not limited to (all of the following):

• harm caused (or risk of harm)
• repetition (or risk of repetition)
• previous history
• insight
• remediation
• admissions of alleged facts
• testimonials

120. This is not an exhaustive list and factors are often interdependent. For example, risk of repetition is likely to be higher where the social worker lacks insight, or their remediation is incomplete.

121. Case examiners should also consider our published guidance, which explains to social workers what standards we expect them to meet. Serious, deliberate or repeated breaches of guidance are likely to increase the seriousness of the concern. These factors apply as much to the decision about impairment as they do to the decision on sanction.

Harm caused (or risk of harm): to what extent did the social worker’s actions harm the public, or pose a risk of harm?

122. One of the primary considerations of our fitness to practise proceedings is current and possible future risks to the public. Risk of harm and the impact of a social worker’s actions can be as important as actual harm caused. This is because continuing to act in a way that risks public safety could cause actual harm in the future, whether or not it has in the past.

123. Case examiners should be careful when assessing actual harm caused by a social worker’s actions and its impact on the seriousness of the case. An action that (by luck) has not caused harm may still represent an unacceptable risk of serious harm if repeated. If this is the case, case examiners should not regard it as any less serious because actual harm did not occur.

124. Case examiners should assess the extent to which the social worker could (and should) have foreseen the risk of harm (or actual harm caused). The case examiners may conclude that the social worker should have anticipated the risk of harm and managed it in advance.

125. In exceptional circumstances, actual harm caused may have been so serious that the case raises questions of public confidence in the social work profession (see ‘public impairment’ below).

Repetition: have any actions that risked the safety of the public been repeated (or could they be repeated)?

126. Case examiners should explore whether there is risk of repetition (now or in the future). This also links to the social worker’s level of insight and their capacity to remediate.

127. Case examiners should explore in depth whether the social worker has reflected and acted on what went wrong after the incident, to prevent risk of repetition. However, case examiners should also assess how much control the social worker has over the risk of repetition. For example, if the risk of repetition is primarily because of insufficient staffing levels, it is not a factor that brings the social worker’s fitness to practise into question.

Previous history: does the social worker have any previous history?

125. Previous history is an adverse decision relevant to the social worker which has been made by [22] (any of the following):

• Social Work England
• a previous social work regulator (such as the HCPC)
• another relevant body [23]
• criminal court of law either in the UK or elsewhere

126. An adverse decision means that one of the above bodies has found fault in the social worker’s acts (things they have done) or omissions (things they have failed to do).

127. At any time, case examiners may take into account any previous adverse decisions against the social worker. They may do this if they are satisfied that it is fair and relevant to do so (in relation to the current concern) [24]. Previous history will be most relevant when considering the question of impairment and sanction. [25]

128. Previous adverse decisions may raise concerns about the willingness or capacity of the social worker to observe their professional duties. Case examiners should pay particular attention to patterns of similar behaviour. This may highlight a risk of repetition or a lack of reflection and learning from past concerns.

129. If (both of the following apply):

• there are no patterns in the social worker’s behaviour
• they still have a history of multiple adverse decisions

this may show the social worker has a persistent lack of regard for the professional standards. In some cases, further concerns may arise while the social worker is still subject to a previous sanction. Case examiners may view this particularly seriously.

[note 22]: Rule 35(a) of the Fitness to Practise Rules 2019 (as amended)

[note 23]: Regulation 7 of The Social Workers Regulations 2018 (as amended)

[note 24]: Rule 35(b) of the Fitness to Practise Rules 2019 (as amended). 

[note 25]: In general adjudicators may not receive information about previous history before they determine disputed facts. However, they can take this into account at facts stage if there has been an application made by a party and the adjudicator consider it fair and relevant to take this into account at facts stage (rule 35(c)(i) and (ii) of Fitness to Practise Rules 2019 (as amended)

Insight: has the social worker correctly recognised and fully acknowledged what they did wrong?

130. There is a greater risk of repetition if the social worker fails to fully understand what they have done wrong (and why it is wrong).

The social worker can demonstrate their insight through (any of the following):

• their engagement with the process
• their submissions during the investigation and prior to a hearing
• any remediation or reflection they have done regarding the concerns
• anything they may say at a hearing

Demonstrating complete insight will help to assure case examiners that there is minimal risk of repetition.

131. Case examiners should be aware that a person’s culture or background may sometimes affect how insight is expressed.

132. Case examiners should consider different aspects of insight, such as (all of the following):

• whether the social worker understands what led to the events which are the subject of the concern
• whether the social worker recognises what went wrong
• whether the social worker accepts their role and responsibilities in relation to the events
• whether the social worker appreciates what could (and should) have been done differently
• whether the social worker has addressed how they might act or react differently if the same circumstances were to happen again (to avoid reoccurrence of similar concerns)

133. Case examiners must take care to assess the quality of any insight. A social worker may accept they have acted wrongly. However, simply asserting this is unlikely to be enough to demonstrate genuine insight. Case examiners must carefully look for and assess any objective evidence that might confirm the social worker’s insight. For example, reports from employment.

134. Offering an apology that includes an acceptance of personal responsibility may be evidence of insight. However, the case examiners must not treat this alone as an admission of facts or impairment. Expressions of remorse may be evidence of insight if the social worker demonstrates a genuine understanding of the impact of their actions on others, and the profession. If the social worker only expresses remorse due to the impact it had on themselves, this is unlikely to be evidence of insight.

135. A social worker may demonstrate insight by making full and early disclosure about what has happened to (all of the following):

• those impacted
• current employer
• future employers

This includes full cooperation with any subsequent investigations and enquiries into the events. Starting relevant remediation early may be good evidence of insight. This is true even if other elements of insight are absent.

136. Case examiners should keep in mind that social workers are required to adhere to the professional standards. This includes professional standard 6, “to promote ethical practice and report concerns”. A social worker should (do all of the following):

• tell the relevant person (or people) when something has gone wrong
• explain what has gone wrong and the potential consequences
• involve the affected person (or people) in deciding on an appropriate response
• remind the person (or people) of their right to complain [26]

137. The social worker must also cooperate with any subsequent investigations into what went wrong. This is a requirement of the professional standards [27]. As such, case examiners should be wary of giving excessive credit to a social worker for meeting their obligations under the professional standards. However, if a social worker has not cooperated, case examiners should consider whether or not this is intentional. There could be reasons which may explain why the social worker was unable to engage with the relevant investigation. For example, a significant mental or physical health condition.

138. Case examiners should carefully consider insight that has only emerged after investigations and enquiries have been completed. Insight should be rooted in the social worker’s personal reflection and assessment of how they have fallen short of the professional standards. This should ideally take place as soon as possible after the incident or events. Insight may carry less weight if it is led by or dependent on the conclusions and directions of others. Case examiners should assess insight in accordance with the individual circumstances of the case and social worker.

139. Case examiners should not assume that a social worker has developed insight. There must be evidence that they can set out in their reasoning.

[note 26]: Social Work England’s professional standards guidance, duty of candour.

[note 27]: Professional Standard 6.7 which requires the social worker to co-operate with any investigations in relation to their fitness to practise, by their employer, Social Work England or another agency 

Remediation: has the social worker put right any deficiencies or shortfalls in their practice, or the behaviour that led to the concerns?

140. Remediation is best shown by objective evidence. For example (any of the following):

• successful completion of education or training courses
• satisfactory performance appraisals
• other positive feedback in relation to their professional practice

141. Remediation can include steps the social worker has taken to make things right, such as apologising.

142. In some cases, the concerns may relate to the social worker’s character. If so, it can be more difficult to evidence remediation that has reformed their character. For example, if the concerns relate to dishonesty, breaches of trust or abuses of position.

143. A finding of personal impairment is usually not needed if (both of the following):

• the social worker has understood the causes of and learnt from any mistakes or misjudgements
• there is no risk of repetition

However, a finding of public impairment may be required. See ‘public impairment’ below.

What if there is no evidence of remediation, or the remediation is incomplete?

144. The social worker may be incapable of successful remediation until they develop insight first. A social worker may also lack the skills to successfully complete remediation.

When did insight and remediation start?

145. The social worker should immediately start to review what has gone wrong after the events have taken place. They should also review what they need to do to prevent repetition. Ideally, insight and successful remediation should take place as early as possible. The earlier it takes place, the greater weight it will carry when the case examiners are making a decision as to impairment.

Admissions of alleged facts

146. Social Work England is responsible for proving the case against the social worker.

147. The social worker has a professional duty to cooperate with investigations into their fitness to practise. [28] However, the social worker also has a legal right to deny any allegations made against them. Exercising this right does not make a concern more serious. Likewise, a social worker admitting the facts does not necessarily make a concern less serious.

148. The risk of repetition is likely to be higher if the social worker shows little or no understanding of why the evidence amounts to impairment. However, a social worker may deny the facts and still demonstrate understanding of (both of the following):

• why the public would be concerned by their behaviour
• how to reduce the risk of repetition

149. Case examiners should take care to distinguish between (both of the following):

• the social worker’s acceptance of the facts
• their understanding of the implications if they were to behave in the same way in future

[note 28]: See professional standard 6.7 which requires social workers to ‘cooperate with any investigations by my employer, Social Work England, or another agency, into my fitness to practise or the fitness to practise of others’.

Testimonials

151. Testimonials that provide up to date, credible information about the social worker’s current practice can be relevant when exploring current impairment. The social worker will have an opportunity to provide any testimonials when responding to the regulatory concerns. Testimonials can be submitted by anyone. However, they are most helpful when they come from people with knowledge of the social worker’s practice or character.

152. Testimonials should include (all of the following):

• what the author knows of the concerns that have been raised
• an explanation of the author’s relationship to the social worker
• any declarations of conflict of interest
• whether the author is willing to give evidence in-person in support of the testimonial

153. Case examiners should give little weight to testimonials from persons not aware of the fitness to practise proceedings or the actions behind them.

154. Case examiners should be aware that there are many reasons why the quality and quantity of testimonials may vary. These reasons may be beyond the social worker’s control. For example, because a case is not in the public domain at case examiner stage, a social worker may be unable to disclose any specific details to the person providing the testimonial.

155. There may be reasons why some social workers may be reluctant to seek testimonials. For example, discussing the facts of the investigation may have professional consequences or adversely impact their private life. Case examiners should scrutinise the reasons provided for why a social worker has not sought or obtained testimonials.

156. Some social workers are new to the profession. They may find it harder to produce testimonials from colleagues than someone with an established career would.

157. Case examiners should assess the content of each testimonial based on their knowledge of any relationship between author and social worker. It should also be based on (all of the following):

• whether the content is relevant to the specific findings in the case
• the extent to which the views are consistent with other available evidence
• how long the author has known the social worker
• the extent to which the testimonial offers a current view of the social worker’s fitness to practise

Public impairment

159. Case examiners must also consider public impairment. In doing so they should weigh (both of the following):

• the factors for personal impairment (as set out above)
• the public interest in upholding professional standards and maintaining confidence in the profession

Case examiners may decide that even though the social worker is not personally impaired, a finding of impairment is still in the public interest.

160. Some concerns are so serious that if proven, a finding of impairment is likely. This is because in these cases, a failure to make a finding of impairment may (do one or more of the following):

• undermine public confidence in the profession
• fail to maintain the professional standards expected of social workers

161. Examples of cases that are likely to be viewed as serious include (all of the following):

• sexual misconduct
• violence
• dishonesty
• abuses of trust
• discrimination involving a protected characteristic

There is more information about specific types of serious concerns later in this guidance (see ‘further guidance on types of concerns’).

162. We publish most decisions, to achieve public protection and satisfy the public interest. Case examiners should keep in mind that Social Work England will publish a decision where (any of the following):

• the case examiners have found a realistic prospect of impairment [29]
• the adjudicators have made no finding of impairment
• the adjudicators have made a finding of impairment

[note 29]: This decision will be published if there is an accepted disposal proposed and consented to by the social worker. If the case is referred to a hearing the decision won’t be published, but the allegations will be published before any hearing takes place. See publications policy.

Part 5: Outcomes

Cases where there is no realistic prospect

No further action

163. If case examiners find there is no realistic prospect of impairment being found, they will usually decide that there is no further action required. However, they may also give (one of the following):

• advice to the social worker on any matter related to an investigation
• a warning to the social worker regarding their future conduct or performance

Advice

164. The case examiners may offer the social worker advice related to how the concern arose. For example, if we receive a concern about a social worker which came about as a result of a misunderstanding. The case examiners might consider reminding the social worker of the professional standards, which require effective and appropriate communication.

A warning

165. Case examiners may give a warning where there has been a breach of the professional standards, guidance or procedures. They may do this when the breach is not serious enough to amount to impairment (but could if repeated in the future).

166. The warning will note that repetition of the behaviour could amount to impaired fitness to practise. Case examiners often give a warning if a case relates to lack of competence or capability. This may also happen for cases of ill health. For example, where the social worker has recovered from the illness, but did not self-manage to protect the public when the illness first presented.

167. The case examiners may decide that it is appropriate to issue a warning in scenarios such as, but not limited to (any of the following):

• errors or failings in practice, which have been addressed by the social worker so that there is minimal risk of repetition
• incidents which might affect the public confidence in social workers
• some types of offending which has resulted in criminal convictions or cautions, such as drink and drug driving convictions without any aggravating circumstances. Please see relevant drink and driving policy guidance.

Impact of advice or warnings

168. There is no defined lifespan on advice and warnings issued in cases with no realistic prospect. We do not publish these decisions. However, we can consider advice and warnings a social worker has received if further fitness to practise concerns are raised about them (and if the concerns are similar in nature).

169. Where the case examiners decide that a social worker requires advice or a warning, they must provide full reasoning. These reasons don’t need to be elaborate but should state (in broad terms) why they have reached this decision.

Cases where there is a realistic prospect

170. If the case examiners decide that there is a realistic prospect of the adjudicators finding impairment, they must consider whether there is a public interest in the case going to a hearing (see part 6 of this guidance). If they determine there is public interest, they must refer the case to a hearing.

171. If the case examiners find there is no public interest in the case being referred to a hearing, then they may seek to dispose of the case without a hearing. We call this ‘accepted disposal’ (see part 7 of this guidance).

172. Wherever possible and appropriate, case examiners will seek to resolve cases through accepted disposal. This is quicker and more efficient than preparing and presenting a case to a fitness to practise panel.

Part 6: Public interest test in referring to a hearing

173. The case examiners must consider whether the case should be referred to a hearing in the public interest.

174. The regulations require case examiners to refer a case to a hearing if (in their opinion) it would be in the public interest to do so.

175. A hearing may be necessary to meet our primary objective of public protection. The case examiners should give careful consideration as to whether a hearing is necessary for public protection. For example, if a hearing is required to (any of the following):

• protecting, promoting and maintaining the health, safety and wellbeing of the public
• promoting and maintaining public confidence in social workers in England
• promoting and maintaining proper professional standards for social workers in England

176. Resolving a case through accepted disposal and publishing the decision with reasons, will usually (do all of the following):

• serve the wider public interest
• maintain public confidence in the profession
• uphold the professional standards

177. However, in some cases, the concerns may be so serious that case examiners must refer to a hearing. This is because failing to hold a public hearing could damage public confidence in our regulation of the profession.

178. There are also other circumstances that may mean the case examiners need to refer the case to a hearing. In particular, if there is a factual dispute.

Factual disputes

179. If there are factual disputes, a hearing will generally be in the public interest. This is because a hearing is the best way to resolve any disputes of fact. There is an exception to this if the social worker has disputed some facts but has admitted that their fitness to practise is impaired. In this instance, we would not consider a hearing to be in the public interest if (either or both of the following):

• there is no prospect that it will be necessary for anyone (whether at Social Work England or elsewhere) to solve the factual disputes
• the time necessary to resolve the factual dispute would be out of proportion to its importance. For example, where the dispute relates to the precise date of an event

180. Case examiners must refer cases to a hearing when (either of the following):

• the social worker disputes the key facts of the case
• the social worker does not agree to the proposed accepted disposal of the case

Part 7: Disposal without a hearing (accepted disposal)

181. If the case examiners have found there is no public interest in the case being referred to a hearing, they may then consider whether an accepted disposal may be appropriate.

The purpose of accepted disposal

182. Our regulations allow case examiners to conclude a case without a fitness to practise hearing. This process is called ‘accepted disposal’.

183. In some cases, there is evidence that the social worker accepts that their fitness to practise is currently impaired. The social worker may also be engaging in remedial work. Accepted disposal is likely to be the preferred means of concluding these cases.

184. For a case to be concluded through accepted disposal, the social worker must agree to (all of the following):

• admission of the key facts
• the fact that their fitness to practise is currently impaired (and will be considered impaired for the duration of the proposed sanction)
• the terms of the disposal proposed by the case examiners (also known as the ‘sanction’)

Available sanctions

185. Case examiners will need to consider which sanction may be appropriate and proportionate in the circumstances. They should apply the sanctions guidance.

186. Case examiners should propose the minimum necessary sanction to protect the public.

187. The sanctions guidance includes detailed information on sanctions, including:

• how case examiners should determine whether to propose a sanction based on the circumstances of the case
• what sanctions are available and how they are applied. This includes:
  • no further action
  • advice
  • warning orders
  • conditions of practice orders
  • suspension orders
  • removal orders

Proposing accepted disposal to the social worker

188. If the case examiners decide to propose a sanction by way of accepted disposal, they must produce a written proposal. This proposal should outline (all of the following):

• the application of the realistic prospect test
• the proposed sanction
• their reasoning in full

We will send this to the social worker for their consent.

189. Written proposals must include (all of the following information):

• confirmation that both the social worker and the complainant have had a reasonable opportunity to comment
• confirmation that the case examiners have had access to (and considered) all the relevant information to reach a decision
• the regulatory concerns that were the subject of the fitness to practise investigation
• the case examiners’ decision and reasoning in respect of the realistic prospect test, including whether:
  • some or all of the facts are capable of being found proven
  • there is a realistic prospect of some or all of those facts amounting to one or more of the statutory grounds
  • there is a realistic prospect of the social worker’s fitness to practise being found impaired
• confirmation that the case examiners have decided there is no public interest in referring the case to a hearing (and why)
• details of the sanction that the case examiners have decided is appropriate and proportionate

190. The detail of the sanction should include (all of the following):

• specific detail of the proposed sanction, for example:
  • the list of conditions of practice
  • the wording of the advice or warning
  • if proposing a suspension order, the recommended actions the social worker may take ahead of the review of the order
• their reasons for this decision
• the timescale the sanction will be in place for (where this is required)
• why they consider this timescale to be appropriate and proportionate in the circumstances

191. Even if the social worker consents to the accepted proposal, the case examiners must still be satisfied that a hearing would not be in the public interest (see section on ‘progressing accepted disposal).

Timeframe to respond to the accepted disposal

192. The case examiners will need to provide a timeframe for the social worker to decide whether they consent to the proposed disposal.

Standard timeframes

193. This is normally between 14 and 28 days. When determining the timeframe, the case examiners should not delay the case longer than necessary.

194. They should also consider the following principles:

• A minimum of 14 days may be appropriate if the case examiners have decided to propose:
  • no further action
  • advice
  • a warning
• A minimum of 28 days may be appropriate if the case examiners have proposed (any of the following):
  • conditions of practice order
  • suspension order
  • removal order

195. We expect that social workers will use this time to ensure they understand, agree to, and can comply with the proposal. For example, they may need to take advice from their representative. If the case examiners propose conditions, the social worker may also need to talk to any parties that are likely to be involved in implementing the conditions, such as their employer.

Nonstandard timeframes

196. Sometimes, social workers may have circumstances that mean they need an extended timeframe to respond. For example, if the social worker is unwell, or where reasonable adjustments need to be made. If they are aware of these circumstances, the case examiner operations team or the investigators will bring them to the attention of the case examiners. This allows the case examiners to consider all the circumstances when deciding the timeframe for a response.

197. A longer timeframe for review might also be necessary if the social worker agrees to the premise of accepted disposal, but wants to seek amendments to the proposed sanction.

Amending the proposal

198. After receiving the proposal, social workers can request limited amendments on one occasion only. The case examiner operations team will provide social workers with additional written guidance about seeking amendments. This is to help them determine whether their requested amendments are appropriate or likely to be agreed by the case examiners.

199. Case examiners are not able to change a proposed sanction once the proposal has been made. As such, the case examiners are not able to agree to amendments on the specific sanction or its duration.

200. Case examiners will only generally agree to amendments that relate to (either of the following):

• factual inaccuracies in their report
• the workability of any proposed conditions of practice

201. If the case examiners have rejected the requested amendments, they can re-notify the social worker of the original proposal. They can invite the social worker again to consent to the proposed sanction. They can do so if they are satisfied that (both of the following have occurred):

• the social worker’s request and submissions have no material impact on their previous assessment (as to public interest in referring to a hearing)
• the social worker has accepted the principles of their decision and the proposed means of concluding the case

202. Case examiners should consider the impact of the request for the amendments. Specifically, if there is any impact on their decision that there was no public interest in referring the case to a hearing. The request by the social worker (and any accompanying submissions) may suggest that they may need to refer the case to a hearing because the social worker (any of the following):

• disputes facts
• disputes that their fitness to practise is impaired
• has undermined their previous expressions of remorse, insight or remediation (if applicable)

203. The case examiners may re-notify the social worker of the original proposal on one occasion only. This will be referred to as the ‘final proposal’. The social worker will not be permitted to request amendments to this final proposal.

Progressing accepted disposal

204. If the social worker consents to the proposed sanction (or the proposed sanction with agreed amendments), the case examiners must still be satisfied that it would not be in public interest for the case to proceed to a hearing.

205. The case examiners may change their decision to proceed with accepted disposal. For example, if in accepting the proposal the social worker suggests they no longer accept that their fitness to practise is impaired. Or, if they have only agreed to the sanction to avoid a hearing. The case examiners may instead decide to refer the case to a hearing in the public interest.

206. If the case examiners conclude the case with an accepted disposal, we will publish the decision with the reasons. We will also record the outcome on the social worker’s public extract of the register. For more information on how we publish information, please see our publications policy (also see our sections on publishing and recording decisions).

If accepted disposal does not progress

207. Where we do not progress accepted disposal, the case examiners will refer the case to a hearing.

208. The case examiners can consider whether to make an interim order recommendation at this point. This may be appropriate where they have proposed a suspension, conditions of practice or removal order (as part of accepted disposal) and the social worker has rejected this. This is because the social worker is likely to have admitted their fitness to practise is impaired and accepted that we should impose restrictions on their practise. This may suggest an interim order may be necessary.

209. The case examiners should clearly document in their decision that they have considered recommending an interim order application.

Part 8: Actions to be taken after a decision is made

Reasons for decisions

210. It is essential that the case examiners’ decision sets out their reasons. The decision should clearly explain the basis of the case against the social worker. It should also explain how and why the decision was reached.

211. The case examiners’ reasons for the decisions should include (all of the following):

• a brief description of the events that caused the complainant to raise the fitness to practise concern
• a summary of the key facts that raise the question of the social worker’s impairment
• the case examiners’ analysis of the evidence
• a summary of where the key facts are contested
• the factors the case examiners have considered when assessing both the seriousness of the case and the social worker’s impairment
• the reasons for their decision on both impairment and sanction, including an explanation of the case examiners’ judgment on the current risk to public protection

212. They should explain how they considered each factor. They should explain which factors they considered most or least important (or relevant) to their decision making. They must address and explain all the factors, including those in favour of the social worker and those against the social worker. This includes any risk to public confidence in the profession, or the upholding of the professional standards.

Notifying parties of the decision

213. The case examiners must inform several parties of their decision. The case examiner operations team will do this on behalf of the case examiners and inform the relevant parties.

214. If the decision was that there was no realistic prospect of a finding of impairment, the case examiner operations team must notify (all of the following) [30]:

• Social Work England
• the social worker
• the complainant (where applicable)

215. If the case has progressed by way of accepted disposal, the case examiner operations team must notify (all of the following) [31]:

• Social Work England
• the social worker
• any person by whom the social worker is employed, or with whom they have an arrangement to provide services as a social worker (or in relation to social work)
• any regulatory body with which the social worker is registered (where known)
• the complainant (where applicable)

216. If the decision was to refer the case to a hearing, the case examiner operations team will inform (all of the following):

• the social worker
• Social Work England
• the complainant (where applicable)

[note 30]: Schedule 2, paragraph 6(3) of The Social Workers Regulations 2018 (as amended)

[note 31]: Schedule 2, paragraph 9(3)(b) of The Social Workers Regulations 2018 (as amended)

Publication

217. We must publish case examiners’ decisions where (both of the following):

• they have found a realistic prospect of a finding of impairment
• the social worker has consented to an accepted disposal

218. Published decisions in health cases will not include any information that reveals the precise nature of the social worker’s health condition. Case examiners should produce a private version of the decision which sets out the specific health condition and any health information. However, the published decision should still cover in depth the issues relevant to the question of impairment, for example the extent of insight shown by the social worker into the impact of their condition on their fitness to practise.

219. It is important that published decisions are accessible. Anyone should be able to read and understand them. Case examiner reports are published on our website.

220. The following case examiner decisions will not be published:

a. referring a case to a hearing

b. no realistic prospect of impairment being found by adjudicators

Please review our publications policy for more details.

Recording on register

While the sanction is in force

221. If a case is concluded through accepted disposal, the sanction must be recorded in the social worker’s public extract of the register while the sanction remains in force. This includes warnings and advice issued after a realistic prospect of impairment has been found [32].

[note 32]: Rule 48 – Fitness to Practise Rules 2019 (as amended)

After the sanction has expired

222. In some instances, the sanction will remain recorded on the social worker’s public extract of the register after the sanction has expired. Further details about the periods for which specific outcomes will be recorded can be found in the publications policy.

223. However, in summary:

• after a conditions of practise or suspension order has expired, there will remain a record of the outcome on the public extract of the register for a further five years. When that additional five year period elapses, the outcome will be removed
• when a removal order is imposed, the social worker will no longer be registered but the information will remain on the public extract of the register indefinitely

224. An order imposed where there is a finding of adverse physical or mental health, information about the order will be removed from the social worker’s public extract of the register when the order expires. However, as removal orders do not technically expire, if a removal order is imposed on health grounds this will remain recorded indefinitely.

Part 9: Quality assurance of case examiners’ decisions

225. Case examiners are independent. Other staff of Social Work England must not influence, obstruct, or interfere with their decisions. All Social Work England staff (including case examiners) have a shared responsibility to maintain the integrity of the decision-making process.

226. The case examiner operations team assess case examiners’ decisions using an internal quality assurance process. This is to make sure case examiners’ decisions are consistent, fair and proportionate. The process makes sure case examiners offer clear and transparent reasons for their decisions. This ensures they can be easily understood by social workers, complainants, and the wider public.

227. The quality assurance process nurtures a culture of continuous learning and development for those involved in fitness to practise cases.

Before the decision is sent to the parties

228. The operations team will usually monitor the quality of case examiner decisions before the decision is sent to the relevant parties. They may (do any of the following):

• correct minor errors before the decision is sent to the relevant parties. This includes minor factual errors and any presentational or typographical errors
• point out any obvious discrepancies or omissions in the decision to the case examiners. For example, if the case examiners have stated an item of evidence is missing that the operations team know to have been included in the evidence. They may also point out anything that appears to be missing from the decision. For example, if the case examiners have referred to an earlier statement in their own report that they have subsequently removed.

229. The case examiner operations team should confirm with the case examiners whether they agree to the changes being made.

230. The operations team must not (do any of the following):

a. correct material flaws in the case examiners’ decision or in their decision-making process

b. give any opinions to the case examiners on their assessment of a case, the evidence available, or what the outcome should be

Scrutinising final decisions

231. The quality of final decisions is monitored on a continuous basis by (all of the following):

a. the case examiner operations manager

b. the head of adjudications

c. the decision review group

232. The case examiner operations manager is responsible for reporting cases that might benefit from further scrutiny. They should report these cases to the head of adjudications and the decision review group.

233. A case may be referred to the decision review group when (any of the following is applicable):

• the decision and/or the rationale for the decision may be questionable
• the outcome was not within the reasonable range of outcomes as set out in the available guidance
• there may be some valuable learning to take from the outcome of the case
• Social Work England may be requested to review some case examiner decisions under the case examiner review decision review power
• the case is part of a sample, selected by the case examiners operations manager for the decision review group to review

234. Cases will not be referred to the decision review group until after the decision has been made. Social Work England employees must never offer an opinion or feedback on a decision to the case examiners before they have concluded a case.

235. In all but the most extreme cases, the decision review group will address any mistakes through learning and improvement. Any general feedback or learning that is found during the quality assurance processes will be shared with the case examiners (in any of the following ways):

• as written reports
• through training
• in team meetings

236. Case specific feedback is usually only delivered to case examiners by the head of adjudications (and only when the case has been concluded). This is to protect the integrity of the case examiners’ decision making process.

Social Work England power to review case examiner decisions

237. Social Work England has the power to review some case examiner decisions (in full or part). This includes a decision (any of the following):

• that there is no realistic prospect that the adjudicators would find the social worker’s fitness to practise impaired
• to take no further action (to close a case in part or in full)
• to issue advice or a warning to the social worker (to close a case in full)
• to make a final order as an alternative to a hearing (an ‘accepted disposal’)

238. Where we have determined that an application is eligible, we can review a case examiner decision when (one or both of the following apply):

• we have reason to believe that the decision may be materially flawed (for any reason)
• there may be new information which may have led to a different decision

239. For this power to review to be engaged, we must also believe the review is (one or more of the following):

• necessary for the protection of the public
• necessary for the prevention of injustice to the social worker
• otherwise in the public interest

240. There are a number of parties that can ask us to review a case examiner decision. These include (any of the following):

• the social worker
• the complainant (if applicable)
• the regulator (Social Work England)
• another interested party. For example, the social worker’s employer, another regulator of social workers in the UK or elsewhere, or any other individuals who we determine may have an interest

241. A party must request a review within 3 months of the case examiners making their decision. This is unless there are exceptional circumstances.

242. For us to consider returning the case to the case examiners for a fresh decision, we must determine that (one or both of the following):

• the case examiner decision was materially flawed
• there is new information which would probably have led to a different decision

243. We must also determine that a fresh decision is (one or more of the following):

• necessary for the protection of the public
• necessary for the prevention of injustice to the social worker
• otherwise in the public interest

244. We will give the social worker an opportunity to provide further submissions before we return the case to the case examiners. We may also give the complainant an opportunity to comment on those further submissions provided by the social worker.

245. There is separate guidance available about our power to review case examiner decisions.

• Guidance for the public about our power to review case examiner decisions
• Guidance for case examiners about our power to review case examiner decisions (and what to do when a case is returned to them for a fresh decision)

Professional Standards Authority

246. The Professional Standards Authority may also review (either of the following):

• the quality of final decisions
• the decision making process

After completing their review, the Professional Standards Authority may provide us with learning points and feedback.

247. Sometimes, the Professional Standards Authority may respond with feedback about a case examiner decision. If so, the decision review group will also review the case.