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Case examiner guidance

This guidance is for case examiners in fitness to practise cases. It sets out the types of concern that may require them to restrict a social worker’s right to work and the factors that should be taken into account when making these decisions.

Guidance for case examiners

Last updated: 5 February 2020


Introduction

Social Work England’s primary objective is to protect the public. We do this by:

  • protecting, promoting and maintaining people’s health and wellbeing
  • promoting and maintaining public confidence in social workers in England
  • promoting and maintaining proper professional standards for these social workers.

As the appointed independent regulator for social work in England, we’re able to protect the public through our legal responsibilities and powers outlined in the Children and Social Work Act 2017 (‘the act’), the Social Workers Regulations 2018 (‘the regulations’), and the Social Work England fitness to practise rules 2019 (‘the rules’).

We always handle concerns about a social worker’s fitness to practise in agreement with the process outlined in the rules. Our legal powers in the area of fitness to practise allow us to put in place appropriate sanctions when a social worker’s fitness to practise has been impaired.

This guidance is for case examiners in fitness to practise cases. It sets out the types of concern that may require them to restrict a social worker’s right to work and the factors that should be taken into account when making these decisions.

This guidance is designed to help case examiners deliver our primary objective of public protection consistently and proportionately. This guidance is also intended to help social workers, employers and members of the public understand the range of possible outcomes in response to concerns about a social worker’s fitness to practise.

What we mean by fitness to practise

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 put the interests of those they are supporting first and 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 services they provide and in the profession as a whole.

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, effectively and without restriction. Social Work England sets out its expectations of social workers in the Social Work England professional standards 2019 (‘the standards’).

A social worker’s fitness to practise is assessed in agreement with the standards. Fitness to practise isn’t just about professional performance—it includes 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.

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

If we decide a social worker’s fitness to practise is impaired, it means we have serious concerns about their ability to practise safely, effectively, or professionally. When this happens, we 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 agreement with our fitness to practise process. This process is designed to address serious shortcomings of conduct, competence or health and to safeguard service users and their families who are potentially at risk. The process also safeguards public confidence in the social work profession.

This process is not designed to punish social workers for mistakes, and we won’t conduct an investigation to address matters of low severity. 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 do not consider a social worker’s overall fitness to practise impaired.

The fitness to practise process

Social Work England’s fitness to practise process aims to protect the public as efficiently and as effectively as possible. In many cases, and where the social worker agrees with our proposed sanction, this can be achieved without holding a hearing.

This guidance sets out processes for both when a case can be closed without the need for a hearing and when we may need to refer a case to independent adjudicators for a public hearing.

If a case qualifies for disposal without a hearing, case examiners can propose any sanction except for removal of the right to practise. In cases where the social worker does not accept a proposed disposal without a hearing, contests the key facts, or if the case examiner decides it’s in the public interest to hold a hearing, it must be referred to the adjudicators.

By the time they reach the case examiners, most cases will have gone through a thorough investigation process. At this point, it’s the case examiners’ duty to make a considered decision as to whether there is a realistic prospect of the social worker’s fitness to practise being found impaired.

These cases are considered by the case examiners through the substantive case process. Sometimes, it is decided that a case should be fast-tracked. This means that consideration of the case needs to be progressed as quickly as possible in the interests of public safety, or in the interests of the social worker. Cases eligible for fast-track are limited to cases:

  • in which the investigators have recommended closure
  • that relate to a conviction that is not listed (Schedule 3 of The Social Workers Regulations 2018);
  • that relate to a conviction obtained prior to Social Work England’s regulation of the profession
  • that may require an interim order to protect the public whilst the substantive case process takes place.

There are 6 key stages to the substantive fitness to practise process, the first 2 of which will happen before the case reaches the case examiners.

  1. Concerns submitted to Social Work England are first considered by a triage panel. The panel review the information received and decide whether the case should proceed to investigation.
  2. If a concern is passed to the investigations team, it’s assigned to a lead investigator and an additional investigator. The investigators provide a copy of all relevant information to the social worker and offer them the opportunity to give a written response. At this stage, the investigators may request further information or documents to give them a full understanding of the case. Once the investigators have concluded their investigation, they can then seek a further response from the social worker or the informant if new or conflicting evidence has been discovered.
  3. All cases that have been investigated are then allocated to a pair of case examiners. All pairings include someone with no background in the social work profession (a ‘lay case examiner’) and a practising social worker (a ‘professional case examiner’). The case examiners decide whether there is a realistic prospect that the social worker’s fitness to practise would be found impaired at a hearing. If the case examiners decide that there is a realistic prospect of impairment being found, they will then ask whether there is a public interest in a hearing being held, or if there is a more suitable course of action that the social worker may agree with and accept to close the case (‘accepted disposal’).
  4. If the case examiners determine that a hearing is required to resolve a case, they refer it to the adjudicators. At this stage, our external legal provider prepares the case for a hearing. This involves interviewing anyone who was involved in whatever resulted in the concern being raised and establishing with the social worker which points of the case they agree on and which they are contesting. The legal team will also set out a formal allegation and the ‘grounds’ of the case.
  5. At the hearing, Social Work England’s case presenter sets out the evidence relating to the concerns about the social worker’s fitness to practise. The social worker has an opportunity to respond, to question any witnesses called by Social Work England, and to call witnesses of their own. The adjudicators’ task is to determine whether the case is well founded. This means they decide whether Social Work England has proved the alleged facts to have taken place, whether the proven facts amount to the ‘grounds’ set out in the allegation and whether the social worker’s fitness to practise is currently impaired as a result. If the adjudicators decide that the social worker’s fitness to practise is impaired, they then consider whether it is necessary to take further action.
  6. If the case examiners or adjudicators impose conditions of practice or suspend a social worker’s right to practise, a review hearing will usually be arranged shortly before the order expires. If it’s decided at a review that the social worker is still not fit to practise without restriction, the existing order may be either extended or replaced with a suspension or the removal of their right to practise.

Language used in this guidance

Throughout this document we will refer to certain words and phrases that, within this guidance, have a specific meaning. We will set out these definitions in this section.

Can/cannot: is able to/isn’t able to, used when something is or isn’t possible.

Concern: a concern refers to information that Social Work England receives that raises a question about the fitness to practise of a registered social worker.

Decision: refers to any determinations made by the case examiners in relation to the tests they apply and the way in which a case should progressed.

Final order: a direction given at the end of the fitness to practise process for example a removal order. The range of final orders is defined in paragraph 13 of Schedule 2 of the Social Workers Regulations 2018.

Fitness to practise: as outlined earlier, whenever we refer to a social worker as fit to practise, we mean that they have the skills, knowledge, character and health to practise their profession safely, effectively and without restriction.

Fitness to practise process: the entire case process from receipt of a concern to a final determination at either the pre-triage, triage, case examiner or adjudicator stage. At the case examiner stage it’s split into 2 routes: the substantive case process and the fast-track case process.

Impairment: if a social worker’s fitness to practise is impaired, it means that they do not have the skills, knowledge, character or health to practise their profession safely and effectively without restriction.

Impairment allegation: similar to a regulatory concern, an allegation refers to the formal case brought against a social worker if their case is brought to a fitness to practise hearing.

May/may not: is allowed to/isn’t allowed to, used when someone is able to use their discretion to make a decision.

Might/might not: is possible but it might or might not happen, used when referring to a potential outcome.

Must/must not: has to do or not do something, used when referring to something that is possible but is either mandatory or prohibited.

Outcome: the action and/or sanction decided on by the case examiners.

Public interest and public protection: definitions for these terms are provided in part one of this guidance.

Registration: in order to have the right to practise, a social worker must be registered with Social Work England.

Regulatory concern: At the end of the investigation stage, the investigators will identify the key regulatory concerns that require consideration by the case examiners. These will normally arise from the concern that instigated the fitness to practise process, but may include additional concerns identified during the investigation.

Report: a formal document produced by a case examiner during the fitness to practise process. The document includes their decision and reasoning.

Sanction: a proportionate and appropriate outcome for social workers whose fitness to practise is found to have been impaired or that it would be if the actions or behaviours that raised the concern were repeated.

Should/should not: is advised to/is advised not to, used as a middle ground between may/may not and must/must not.

How to use this guidance

From here on, this guidance document is numbered so that it is easy for case examiners and others involved in the fitness to practise process to refer back to certain points.

Part 1: Core concepts

Public interest

1. Case examiners have a duty to act in agreement with Social Work England’s primary objective: to protect the public. It has 3 elements:

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

2. Social Work England’s primary objective includes as 2 of its 3 limbs the public interest in its regulation of social workers. The public interest when it comes to social work in England is met by declaring and enforcing a set of professional standards for social workers. It is also met by carrying out a fitness to practise process when a social worker is thought to not be upholding those standards.

3. Public interest also includes responding to fitness to practise concerns proportionately. 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’.

4. Inmost cases, publishing fitness to practise decisions and their reasoning will satisfy the public interest. This includes cases that don’t require a hearing, a decision can be published even if the case is closed through accepted disposal.

5. Occasionally, a case may raise an issue so serious that a public hearing must be held to uphold the public’s confidence in the profession. In these circumstances, it is the case examiners’ responsibility to consider the public interest and refer the case to a hearing.

Fairness

6. Social Work England is committed to making sure its processes for dealing with concerns about social workers are fair and proportionate. Any order imposed as a result of a fitness to practise investigation must be the minimum necessary to protect the public and the wider public interest.

7. A case examiner must demonstrate a commitment to the Nolan principles for public life and meet each of the requirements set out in Social Work England’s appointment rules. Once appointed, they must undergo formal appraisal at least once a year and must undertake continuing professional development. They must also declare any actual or perceived conflicts of interest in any case they are asked to consider.

8. Social Work England is fully committed to impartiality and consistency in its decision making. This guidance supports and promotes this commitment.

Impaired fitness to practise

9. A social worker is fit to practise when they are suitable to be registered without restriction. Registration can be restricted through conditions, suspension or removal. This suitability to be registered can be impaired by reason of:

  • a. misconduct
  • b. lack of competence or capability
  • c. a criminal conviction or caution
  • d. ill health (physical or mental)
  • e. an adverse finding by another regulator
  • f. being on a barred list
  • g. not having the necessary knowledge of English.

10. Impairment is about whether a person is fit to practise today and in the future. The events giving rise to a concern will inform any decision about current and future risk to the public, but the purpose of regulation is not to blame or punish for past mistakes or poor behaviour. The sanction imposed must be the minimum needed to protect the public and the wider public interest.

11. When considering whether a social worker’s fitness to practise is currently impaired, case examiners should address all of the factors that affect the seriousness of the case outlined below.

12. These factors are not exhaustive and are also often interdependent. For example, risk of repetition is likely to be higher where insight is lacking or remediation is incomplete. Case examiners should also consider published guidance to social workers on the standards expected of them. Serious, deliberate or repeated breaches of guidance are likely to increase the seriousness of the fitness to practise concern. These factors apply as much to the decision about the sanction as they do to the decision about impairment.

13. Case examiners should approach insight with a degree of care as they will only be able to consider the written submissions to assess the evidence put forward by the social worker. They are not able to assess things such as the demeanour of the social worker. This makes it especially important to have objective, verifiable evidence to support the submissions made.

14. Risk of harm 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.

15. If so, this points strongly towards continuing risk of repetition now and in the future. It also raises serious questions about insight and the capacity to remediate. Case examiners are able to explore in depth why the social worker did not reflect and act on what had gone wrong after the first incident to prevent risk of repetition. However, case examiners should assess how much control the social worker realistically has over the risk of repetition. For example, if the risk of repetition is primarily because of insufficient staffing levels, it is not properly a factor that weighs on the social worker’s fitness to practise.

16. An adverse finding is one that following due process and determination, has found fault in the social worker’s acts or omissions. Previous adverse findings might raise serious concerns about the social worker’s willingness or capacity to observe their professional duties. It also raises wider concerns about confidence in the profession. Further concerns arising while the social worker is still subject to a previous sanction may be viewed particularly seriously.

17. If the case examiners determine that there is an adverse fitness to practise history, they should consider whether it’s relevant to the current concerns. The case examiners should pay particular attention to patterns of similar behaviour. Even if there are no common themes, a social worker who has a significant history of fitness to practise proceedings might be considered to have a persistent lack of regard for the professional standards expected of them.

18. Case examiners should proceed with caution when a social worker’s previous history includes matters that did not lead to a finding of impairment. The case examiners should, however, pay attention to any warnings issued by the regulator even they didn’t find impairment. They should also take note of whether the social worker has demonstrated an understanding of the warning they received.

Insight

19. The risk of repetition is higher when the social worker fails to fully understand what they have done wrong. Insight needs to be complete rather than partial if the risk of repetition is to be sufficiently minimised so that restriction of practice is not needed.

20. Case examiners should take care to assess the quality of any insight. Simple assertion that the social worker accepts they have acted wrongly is very unlikely to be sufficient to demonstrate genuine insight. Case examiners may wish to explore, for example, whether the social worker understands what led to the events leading to the concern, and how they might act or react differently if the same circumstances were to happen again. Case examiners should carefully look for and assess any independent evidence that might corroborate the social worker’s evidence about their insight, such as reports from supervisors.

21. Offering an apology that includes an acceptance of personal responsibility may be evidence of insight, though it must not be treated as an admission of facts or impairment alone. Expressions of remorse may carry weight where they demonstrate genuine understanding of the impact on others as opposed to remorse for the impact on the social worker.

22. Case examiners should be aware that cultural differences may sometimes affect how insight is expressed. However, they should not assume that a social worker has developed insight unless there is evidence of this that can be set out in reasons for their decision. For example, starting relevant remediation early may be good evidence of insight, even if other elements of insight are absent.

23. Insight is also demonstrated where the social worker makes full and early disclosure about what has happened to those impacted and to current and future employers. This includes full cooperation with any subsequent investigations and inquiries into the events.

24. Case examiners should bear in mind that social workers have a professional duty of candour which requires as a minimum that they tell the relevant person when something has gone wrong, apologise, and explain what has gone wrong and the potential consequences, involve the affected person in deciding on an appropriate response, and remind the person of their right to complain. The social worker must also cooperate with any subsequent investigations into what has gone wrong. Case examiners should be wary of giving excessive credit to a social worker for meeting their core professional obligation to exercise duty of candour.

25. Case examiners should be cautious about giving credit for insight that has only emerged after investigations and inquiries are completed. Insight should be rooted in the social worker’s personal reflection and assessment of how they have fallen short of the professional standards expected of them. It carries far less weight if this insight is led by or dependent on the conclusions and directions of others.

Remediation

26. This is best shown by evidence such as successful completion of education or training courses, as well as satisfactory performance appraisals. Concerns that raise questions of bad character, such as dishonesty, breaches of trust or abuses of position may be harder to remediate. This is reflected in the greater difficulty of producing objective evidence of reformed character. Remediation can include steps the social worker has taken to right a wrong, such as apologising.

27. A social worker may be incapable of successful remediation until they develop insight. A social worker may also simply lack the skills to successfully complete a remediation programme.

28. A social worker should immediately start to review what has gone wrong and what needs to be done to prevent repetition when events leading to a concern take place. This is a fundamental principle of professionalism. There is normally no need for regulatory sanctions if the social worker has understood the causes of and learnt from any mistakes or misjudgements, and there is no risk of repetition unless the case raises issues about promoting and maintaining confidence in, and standards for, social workers. Sanctions are usually only required where the social worker has not immediately and fully reflected on what has gone wrong and taken the necessary steps to put things right. This means the earlier the insight and successful remediation, the greater weight it will normally carry.

Public confidence in the profession

29. Some concerns are so serious that action is required even if the social worker poses no current risk to the public. This is because a failure to sanction a social worker in such cases might undermine public’s confidence in social work as a profession. Abuses of trust, dishonesty or assaults are examples of cases that are likely to be viewed particularly seriously given the access social workers have to people’s homes and lives.

Admission of alleged facts

30. Social Work England need to prove the case against the social worker, and the social worker is entitled to deny the facts alleged against them. However, accepted disposal outcomes will not normally be available when the social worker does not accept the facts that are core to the question of impairment. Therefore, if the alleged facts can amount to impairment, such cases will be referred for a hearing for adjudication.

31. A social worker has a professional duty to cooperate with investigations into their fitness to practise. However, it does not make a concern more serious if they exercise their legal right to deny any allegations made against them. Likewise, any admission of the facts does not necessarily make a concern less serious. Admission of facts is not a mitigating or aggravating factor in itself.

32. If the case examiners decide that there is a realistic prospect of facts the social worker denied being found proven, they should approach the question of insight and remediation with care. A social worker may deny facts but still be capable of demonstrating sufficient understanding of why the public would be concerned by the behaviour and how to reduce the risk of repetition. The case examiners should take care to distinguish between any acceptance of the facts by the social worker, and their understanding of the implications if they were to behave in the way alleged in the future.

Harm

33. Case examiners should take care when assessing the impact of actual harm caused by a social worker’s actions on the seriousness of the case. The fitness to practise procedures’ primary concern is risk to the public now and going forward. An action that, by good fortune, has not caused harm previously may still represent an unacceptable risk of causing harm if repeated. In such a case, there is no basis for regarding it as any less serious for the fact that actual harm did not occur.

34. Case examiners should assess the extent to which the risk of harm, or the actual harm caused, could and should have been foreseen by the social worker. Case examiners may be entitled to conclude that the more serious any actual harm caused, the more the risk of this should have been anticipated and managed in advance by the social worker. Exceptionally, actual harm caused may have been so serious that the cases raises questions of public confidence in the profession as a whole.

Testimonials

35. Testimonials that provide up-to-date, credible information about the social worker’s current practice or standing can be relevant to the question of current impairment. Case examiners should make sure that, where relevant, social workers have had an opportunity to submit testimonials ahead of any decision about impairment.

36. A testimonial should state what the author knows of the concerns that have been raised, should explain the author’s relationship to the social worker and declare whether there is any conflict of interest. It should also state whether the author is willing to give evidence in person in support of the testimonial. Case examiners should give little weight to testimonials from persons not aware of the fitness to practise proceedings.

37. Case examiners should be aware that there are many reasons beyond the control of the social worker why the quality and quantity of testimonials they can produce may vary.

  • The social worker may be unable to disclose details of the case to every potential referee because, at the case examiner stage, the case has not been made public.
  • There may be cultural reasons why some social workers may be reluctant to seek testimonials, for example discussing the facts of the investigation may have professional consequences or may adversely impact their private life.
  • A social worker who is relatively new to the profession may find it harder to produce testimonials from professional colleagues than one with a more established career.

38. For these reasons, case examiners should assess the content of each testimonial based on the knowledge of and relationship between author and social worker. It should also be based on 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, and the extent to which the testimonial offers a current view of the social worker’s fitness to practise.

39. Testimonials might be offered at the factfinding stage as to the likelihood of the social worker have acted in the alleged way. Whether such testimonials are admissible at the facts stage and the weight to be given to them are complex questions on which submissions and legal advice should be sought.

Types of concern

40. Concerns raised about social workers are subject to Social Work England’s fitness to practise process if they relate to one or more of the following grounds:

  • a. Misconduct
  • b. Lack of competence or capability
  • c. A conviction or caution in the United Kingdom for a criminal offence
  • d. A conviction not falling within sub-paragraph (c) for an offence which, if committed in England and Wales, would constitute a criminal offence
  • e. Adverse physical or mental health
  • f. A determination by a regulatory body to the effect that the person’s fitness to practise is impaired
  • g. Being included
  1. 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
  2. by the Scottish Ministers in the children's list or the adults’ list (within the meaning given in section 1(1) of the Protection of Vulnerable Groups (Scotland) Act 2007(c))
  • h. Not having the necessary knowledge of English

41. This section outlines guiding principles for case examiners to take into consideration when deciding how specific types of concern should be handled. For ease of access, this guidance is structured into 5 themes based on the types of concerns Social Work England might expect to receive.

Lack of competence or capability

42. Usually, lack of competence or capability must be demonstrated over a fair sample of a social worker’s work. Single episodes of lack or competence or capability are normally insufficient to represent a pattern that could be called a fair sample. However, in exceptional circumstances, a single case could arise from a lack of knowledge of or competence in such a fundamental principle of social work that it raises wider issues of concern for public safety. In cases like this, it may warrant a finding of impairment and a sanction on registration.

43. Misconduct is a separate and distinct category of impairment from competence or capability. These 2 cannot overlap. For example, poor performance within the social worker’s scope of practice may point to a competence issue. Performing poorly when knowingly practising outside the social worker’s scope of practice may point to misconduct. Where an allegation of lack of competence or capability fails to meet the fair sample threshold, it cannot be reframed as misconduct in order to support an impairment allegation.

44. Single episodes of lack of competence or capability that do not satisfy the fair sample test for impairment and are not so serious as to raise wider issues of concern for public safety, may be marked by advice or a warning. For example, a warning may be appropriate where the lack of competence, if repeated, could meet the fair sample test for impairment.

Abuse of trust

45. Social workers hold privileged positions of trust. Their role often requires them to engage with people over extended periods of time when those people may be highly vulnerable. It is essential to the effective delivery of social work that the public can trust social workers implicitly. Any abuse of trust by a social worker is a serious and unacceptable risk in terms of public protection and confidence in the profession as a whole.

46. Case examiners must assess each case on its merits and must apply proportionality considering any mitigating or aggravating factors present. However, most cases of serious abuses of trust are likely to require suspension or removal of registration. Case examiners should provide detailed reasoning to explain lesser sanctions in such cases.

Sexual misconduct

47. Convictions for sexual assault or abuse of children through pornography must result in the automatic removal of registration without adjudication.

48. Abuse of professional position to pursue a sexual or improper emotional or social relationship with a service user or a member of their family or a work colleague is a serious abuse of trust. Many people will be accessing social care for reasons that increase their vulnerability and that of their family. Pursuit of a sexual or improper emotional or social relationship with a vulnerable person is likely to require a more serious sanction against a social worker.

Dishonesty

49. Social workers are routinely trusted with access to people’s homes, and highly sensitive and confidential information. They are also routinely trusted to manage budgets including scarce public resources. Any individual dishonesty is likely to threaten public confidence in the proper discharge of these responsibilities by all social workers.

50. Financial dishonesty, whether in the course of professional work or in matters outside the social worker’s practice, is likely to damage the trust the public places in social workers. Theft or fraud leading to losses of public funds that would otherwise have been used to deliver services, or losses of property by service users and their families, is particularly serious.

51. Dishonesty through misrepresenting qualifications, skills and experience, for example on a CV, is also particularly serious because it may lead to the social worker being appointed to roles and responsibilities that they cannot safely discharge. The public and employers must be able to trust the accuracy of such information provided by social workers.

52. Evidence of professional competence cannot mitigate serious or persistent dishonesty. Such conduct is highly damaging to public trust in social workers and is therefore usually likely to warrant suspension or removal from the register.

Convictions and cautions

53. Convictions that do not qualify for automatic removal may still warrant removal of registration depending on the nature of the offence. However, the purpose of sanctions process is not to punish a social worker twice for the same offence. Case examiners must assess the conviction against what is needed to deliver the overarching objective of protecting the public including the wider public interest.

54. Case examiners should be wary of regarding the criminal sentence imposed as a definitive indication of the seriousness of the offence. Sometimes the courts will impose a relatively lenient sentence in the expectation that the person’s professional regulator will remove their registration.

55. Cautions are issued where a person has admitted committing a criminal offence, but court proceedings were considered unnecessary. The issuing of a caution acknowledges the admission of guilt and suggests the offence is of a lower severity. Nonetheless, case examiners must consider the impact on public protection and the wider public interest of the offending behaviour when deciding on impairment and the appropriate sanction.

56. Case law is to the effect that a registrant convicted of a serious offence should not normally be permitted to return to unrestricted practice while they are still subject to a criminal sentence. This includes any suspended custodial sentence or community order. See ‘Fleischmann’ (CHRP v (1) GDC and (2) Mr Fleishmann [2005] EWHC87 (Admin)). 

Part 2: The substantive case process

Scheduling and allocation of substantive cases

57. The case examiner operations team (‘operations team’) will be responsible for the maintenance of an up-to-date schedule of availability for the case examiners. Case examiners must provide their availability to the operations team in advance so that they can accurately forecast and assign new cases.

58. Once a case examiner has provided the operations team with their availability, they have committed to working on the days indicated. Any changes will require authorisation by the head of adjudications through the usual HR process.

59. The operations team will assign cases in agreement with the principles and processes outlined in the case examiner conflicts of interest guidance. This will include an initial review of new cases with reference to the register of interests, sending limited case information to the case examiners, and the escalation of potential conflicts to the case examiner operations manager and the head of adjudications. The case examiner operations manager and the head of adjudications with then provide a decision about how to proceed.

60. When a case has been assigned, the operations team will also complete an initial assessment of the complexity of the case to determine how much of the case examiners’ time will be needed to complete a full and fair consideration of the case. The operations team’s assessment will include an estimate of the time required for each case examiner to individually assess the case, and the time required for them to reach a mutual decision and draft their report.

61. On completion of the operations team’s initial review of the case, they will allocate it to the case examiners with reference to the schedule of availability and the following criteria:

  • a. All cases will be allocated to a pair of case examiners and, in all cases, the pair will consist of a lay case examiner and a professional case examiner.
  • b. Case examiners must not review a case if there is a potential conflict of interest.
  • c. The case examiners do not have to start their individual review of the case on the same date, but they must have sufficient time at the end of the process for them to reach a mutual decision, draft, and finalise their report.

62. An expected completion date for a case will be sent to the case examiners at the time of assignment. If it becomes clear that it will not be possible to make their decision by that date, the case examiners must notify the operations team immediately.

Preliminary issues

63. Once assigned a new case, the case examiners must review the evidence in full to make sure they have a full understanding of the parties and matters involved.

64. If a case examiner identifies a potential conflict of interest at this stage, or at any stage of a case, they must declare it immediately to the operations team. Any case examiner that has a potential conflict of interest must avoid further discussion of the case with the second case examiner. They must also stop working on the case and they must not access any documentation associated with the case until they receive further instructions from the operations team. Instructions will be provided to the case examiners based on a decision made in agreement with the case examiner conflicts of interest guidance.

65. At this initial stage, the case examiners should also make sure the social worker was given the opportunity to comment on the case at the investigation stage. They should also consider whether an appropriate decision was reached by the investigators as to whether the complainant should also have been offered an opportunity to comment on any submissions made by the social worker The case examiners must also consider the complainant’s and the social worker’s rights as outlined in the fitness to practise rules.

  • a. The social worker must have been notified of the grounds for investigating their fitness to practise.
  • b. The social worker must have been given a period of at least 14 days to make their written submissions.
  • c. If the social worker has provided written submissions, the complainant may be offered the opportunity to comment on any written submissions made by the social worker.
  • d. The complainant, if asked to comment, must have been given a period of at least 7 days to make their written submissions.
  • e. At the discretion of the investigators, if new evidence was obtained over the course of the investigation that changed the nature or seriousness of the concern or the credibility of the evidence, the social worker may have been given the opportunity to provide further comment.
  • f. At the discretion of the investigators, the social worker may also have been given the opportunity to comment on the findings of their investigation. Where the social worker has been given the opportunity to comment, the complainant may also have been offered the opportunity to comment on any response received from the social worker.

66. If the case examiners are not satisfied that the social worker and/or the complainant have had reasonable opportunity to comment, they should consider pausing their consideration of the case until the social worker and/or the complainant have been given a fair opportunity to submit their comments. The case examiners should communicate their decision, and reasoning, to the operations team who will then liaise with the investigators.

67. If the case examiners identify minor errors in the investigator’s report, such as incorrect dates or names, they may correct these errors in their final report. In such cases, the case examiners should make a note in their report that they have done so.

68. If the case examiners decide that a material amendment may be required, they must pause their consideration of the case and ask that the investigators clarify the point or make an amendment. It may be necessary for the investigators to offer the social worker or the complainant an opportunity to comment on the changes that have been made.

Mutual decision making

69. The case examiners must reach a mutual decision on each case. That is, they must be in unanimous agreement on the outcome.

70. In cases where the case examiners cannot agree on an outcome, they must take all appropriate steps to reach a consensus.

71. If, after taking appropriate steps, the case examiners cannot reach a consensus, maintaining the integrity of the decision making process is the top priority. The case examiners must declare their disagreement to the operations team and withdraw from the case. The case examiners’ disagreement will be recorded by the operations team and the case assigned to new case examiners. Under no circumstances will the new case examiners be informed of the reason why they have been assigned the case, nor will they be given any details of the previous case examiners’ disagreement.

The realistic prospect test

72. At the end of an investigation, case examiners must decide whether there is a realistic prospect that the adjudicators would find the social worker’s fitness to practise is currently impaired. Impairment is where the protection of the public or the wider public interest requires action to be taken on the social worker’s registration. The wider public interest might include matters that could materially impact upon public confidence in the social work profession, or in Social Work England’s regulation of the profession. In reaching their decision, the case examiners should apply the factors that determine the seriousness of a concern in agreement with the guidance set out in part 1 of this guidance.

73. In making this decision, the case examiners must consider any information that would be available to the adjudicators both for and against the case for impairment.

74. The case examiners must not seek to resolve conflicts over facts that relate to the question of impairment. The case examiners do not hear evidence and are not able to assess credibility. They should base their assessment of the realistic prospect test on the assumption that any alleged facts supported by credible evidence may be found proven.

75. As highlighted earlier in this guidance, case examiners should address all the factors that affect the seriousness of the case. They should approach questions of insight with care given that they will only have written submissions to assess the evidence put forward by the social worker. They will not be able to assess things such as the demeanour of the social worker. This makes it especially important to have objective, verifiable evidence to support the submissions made.

Cases where there is no realistic prospect

76. If there is insufficient evidence to support the alleged facts, the case examiners will usually decide to close the case with no further action.

77. The case examiners may consider offering advice to the social worker about to how the complaint or concern arose. For example, if a complaint was made because of a misunderstanding, the case examiners may suggest steps that the social worker could take to avoid similar issues in the future.

78. In some cases, the case examiners may decide there is no realistic prospect that the adjudicators would find the social worker’s fitness to practise impaired but that, if repeated, the social worker’s actions could result in impairment. In this situation, the case examiners may decide to issue a warning. This may include serious errors or failings in practice which have been addressed, incidents which might affect the public confidence in social workers which are not directly related to practice, and minor offending resulting in criminal convictions or cautions.

79. A warning may be appropriate where there has been a breach of professional standards, guidance or procedures that is not serious enough to amount to impairment, but which could do so in the future if repeated to form a pattern. The warning will note that repetition of the behaviour could amount to impaired fitness to practise. This may most commonly occur in cases of lack of competence or capability but can also occur in cases of ill health where the social worker has recovered from the illness but did not self-manage to protect the public when the illness first presented.

80. Advice and warnings issued in cases of no impairment do not have a defined lifespan and they are not published. Warnings can, however, be considered if further fitness to practise concerns are received, particularly if those concerns are similar in nature. 81.In cases where the case examiners decide that advice or a warning may be required, they must be careful to make sure full reasoning is provided. These reasons don’t need to be elaborate or lengthy, but state in broad terms why the decision has been reached. They should state why the social worker has been found to have departed from the standards expected of them.

Cases where there is a realistic prospect

82. If the case examiners decide that there is a realistic prospect of the social worker’s fitness to practise being found impaired, they can progress the case in two different ways. They may either refer the case to a hearing or they can seek to dispose of the case without a hearing. We call this second process accepted disposal.

Referring cases to a hearing

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

84. Fitness to practise procedures require case examiners to refer a case to a hearing if, in their opinion, it would be in the public interest to do so, rather than resolve it through accepted disposal.

85. When considering the public interest, the case examiners should give careful consideration to whether a hearing is necessary to maintain public confidence in the profession; to promote and maintain proper professional standards for social workers in England; or to maintain public confidence in Social Work England’s regulation of the profession.

86. In most cases, resolving a case through the accepted disposal process and publishing the decision with reasons will serve the wider public interest of maintaining confidence in, and the professional standards of, social workers.

87. In exceptional cases, a case may be so serious that not holding a public hearing would carry a real risk of damaging public confidence in the regulation of the profession. In these circumstances, the case examiners must refer the case to a hearing in the interest of the public.

88. Case examiners must refer cases of possible impairment to a hearing where they consider a removal order is required, where the key facts are disputed, or where the social worker does not agree to the proposed accepted disposal of the case.

Disposal without a hearing: accepted disposal

89. Social Work England’s fitness to practise rules allow case examiners to close a case through a process called ‘accepted disposal’. A case can be closed in this way if the case examiners decide there is a realistic prospect of a finding the social worker’s fitness to practise impaired, but they do not consider it to be in the public interest to refer the case to a hearing.

90. Accepted disposal is likely to be the preferred means of closing a case where there is evidence that the social worker accepts that their fitness to practise is currently impaired. The social worker may also be actively engaged in remedial work.

91. A case may only be closed through accepted disposal with the agreement of the social worker. If the case examiners decide to propose accepted disposal, they must produce a written report that outlines their decision and its reasoning and send it to the social worker as a formal proposal.

92. Written proposals must include the following information as a minimum:

  • a. A summary of the concerns that were the subject of the case examiners’ report
  • b. A summary of the alleged facts and evidence available to the case examiners
  • c. A summary of the social worker’s comments including any admissions and evidence of remedial action undertaken
  • d. A summary of any comments obtained from the complainant
  • e. Confirmation that the case examiners have not declared any conflicts of interest
  • f. Confirmation that the case examiners have had access to all of the information that they considered to be required to reach their decision
  • g. Confirmation that the case examiners have decided that there is a realistic prospect of impairment and their reasons for this decision
  • h. Confirmation that the case examiners have decided, based on the evidence available to them at the time that there is no public interest in referring the case to a hearing and their reasons for this decision.

93. The sanction that the case examiners have decided is appropriate and proportionate and their reasons for this decision; the timescale the sanction will run for and the content of that sanction.

94. The case examiners will determine a reasonable timeframe of normally between 14 and 28 days for the social worker to decide whether to accept the proposed disposal. The case examiners should consider the following principles as well as not delaying the case longer than necessary:

  • a. If the case examiners have decided to close the case with no further action, advice, a warning, or limited conditions of practice, the social worker shouldusuallybegiven14 days to respond.
  • b. If the case examiners have proposed that the case is closed with conditions of practice or a suspension order, the social worker should be given a minimum of 21 days to respond. It is expected that social workers will use this time to ensure they will be able to comply with the proposed conditions. This may take the form of a conversation with any parties that are likely to be involved in the implementation of the conditions; for example the social worker’s lawyer. In the case of a proposed suspension order, it may be appropriate to give the full 28 days for a response. This is reflective of the fact that these sanctions will require careful consideration by the social worker.

95. If Social Work England is aware of any circumstances that might require an extended timeframe, for example if the social worker is unwell or where reasonable adjustments may need to be made, then the operations team will bring this to the attention of the case examiners prior to the service of the proposal so that they can decide on an appropriate timeframe for a response.

96. The case examiners may amend the terms of the proposed disposal without a hearing to reflect if, for example, a social worker disputes facts that are not directly relevant to the issue of impaired fitness to practise. If, however, a social worker disputes facts that are directly related to the issue of impairment, the case examiners should normally refer the case to a hearing.

97. An additional timeframe for review might also be required if the social worker agrees to the premise of a disposal without a hearing, but where they want to contest the specific terms of the case examiners’ decision. In these cases, the case examiners usually give a timeframe of up to 14 days (and under normal circumstances, no more than 28 days) for the social worker to respond to the amended proposal.

98. If the case examiners and social worker cannot reach an agreement after one round of proposed amendments, the case examiners should refer the case to a hearing immediately. The social worker will not be permitted to request amendments to a revised proposal. If the social worker does not accept the revised proposal, the case will be referred to a hearing.

99. If the social worker accepts the proposed disposal, the case examiners must make a final decision on whether it’s still in the public interest to dispose of the case without a hearing. If, for any reason, the social worker suggests that they no longer accept that their fitness to practise is impaired, the case examiners may decide to refer the case to a hearing in the public interest.

100. If the case examiners decide the social worker’s fitness to practise is impaired and the case is closed with an accepted disposal, they must publish the decision and reasons. The outcome must also be recorded on the social worker’s entry in the register.

Available sanctions

101. If the case examiners decide that a case should be closed through accepted disposal, their proposed sanction should be the least restrictive sanction necessary to protect the public and the wider public interest. When considering sanctions, case examiners must start with the lowest sanction and then move up through the sanctions in ascending order of seriousness. They should decide on the first sanction that is sufficient to protect the public.

102. If the case examiners have decided that the social worker’s impairment poses a current risk to safety, they may move beyond no action, advice or warnings on this basis alone, as these outcomes will not protect the public.

103. To test the appropriateness and proportionality of a proposed sanction, case examiners should consider the next, more serious sanction. It’s particularly important to do this if the proposed sanction is advice or a warning as these outcomes do not restrict the social worker’s practice.

104. Case examiners must explain fully their reasons why each sanction has been either rejected or chosen in their report.

105. If current impairment is found, a sanction restricting or removing registration will normally be required to reflect the seriousness of the case. However, in some cases, after taking into account the social worker’s mitigation, the matter may be resolved with a warning or advice. Alternatively, we may require a social worker to comply with specific conditions or suspend them from practising whilst they address the issues that led to the concerns until their fitness to practise is no longer impaired. In the most serious cases we can remove the social worker’s name from the register. The factors that may determine which sanction is appropriate are discussed below in this guidance.

106. It is possible for a social worker to be subject to more than one sanction at the same time. This may be appropriate if entirely unrelated concerns have been investigated separately through the fitness to practise process. If a social worker is already subject to a sanction from a previous unrelated case and the case examiners are considering imposing a new sanction, they should consider how the new sanction affects –or does not affect –the other sanction when making their decision. For example, it should make clear in the decision imposing a new warning does not affect an existing conditions of practice order. However, if the case examiners decide on a suspension order, it would have the effect of overriding the conditions of practice order.

107. Impairment is when a social worker is not suitable to be registered without restriction. The outcomes of no further action, advice or warning after a finding of impairment do not restrict the social worker’s registration. This means that these outcomes may only be appropriate where the concern is sufficiently serious to warrant restriction, but the mitigating factors put forward by the social worker in defence such as insight and remediation are strong enough that restriction is not required. These outcomes are therefore likely to be inappropriate where the social worker has not engaged with the fitness to practise proceedings.

No further action

108. This outcome means there is no restriction on the social worker’s practice, and they are not given advice or a warning. The social worker’s fitness to practise is impaired at the point the decision is made, but the finding of impairment has no duration-the social worker is regarded as fit to practise at the end of the proceedings. This outcome is likely to be exceptional and would be in cases where the finding of impairment is itself enough to protect the wider public interest. It may be appropriate if there has been a significant departure from professional standards or guidance, but which has been fully remediated with no risk of repetition.

109. An example might be where the social worker has received a caution. It’s important to remember that the purpose of the regulatory proceedings is not to punish for a second time, a finding of impairment may be sufficient to protect the public or address the public interest without the need for any further action.

110. This outcome is very unlikely to be appropriate where there is any continuing risk to the public of the social worker behaving in the same way again.

Advice or warning

111. Advice or warnings issued following a finding of impairment are published on the Social Work England website and are included on the social worker’s register entry. This means those engaging with the social worker professionally can be made aware of the concerns. The social worker’s fitness to practise remains impaired while the advice or warning is in effect. 

112. These outcomes do not directly restrict practice and they cannot be reviewed before they expire, except in the case of a warning if new concerns are raised. They are therefore not appropriate outcomes if there is a current risk to the public.

113. An advice order should be regarded a lower sanction than a warning and should be considered first. The advice is likely to be in terms that set out the steps the social worker should take to address any shortfall in their conduct or performance that contributed to the concern arising.

114. A warning order is a signal any repetition of the behaviour that led to the concern is highly likely to result in a more severe sanction. A warning order implies a clearer expression of disapproval of the social worker’s conduct or performance than an advice order.

115. Case examiners can direct that advice and warnings will stay on the social worker’s register entry for periods of 1, 3 or 5 years. In advice cases, case examiners should consider the appropriate length of time for the social worker to demonstrate they’re applying the advice to their practice. For warnings, the decision makers should take into account the following guidance when deciding on the proportionate duration.

116. 1 year might be appropriate for an isolated incident of relatively low seriousness where the primary objective is to send a message about the professional standards expected of social workers.

117. 3 years might be appropriate for more serious concerns to maintain public confidence and to send a message about the professional standards expected of social workers. The period also allows more time for the social worker to demonstrate that they have successfully addressed any risk of repetition.

118. 5 years might be appropriate for serious cases that have fallen only marginally short of requiring restriction of registration, to maintain confidence in the profession and where it is necessary to send a clear signal about the standards expected. The timeframe presents an extended period over which the social worker must demonstrate that there is no risk of repetition.

Conditions of practice orders

119. The primary purpose of conditions of practice orders is to protect the public while the social worker takes the necessary steps to remediate their fitness to practise. In addition to any protective restrictions, the conditions may include remediation steps that the social worker must take as a minimum to regain fitness to practise, such as the successful completion of relevant education or training.

120. Conditions are most commonly applied in cases of lack of competence or ill health. They are less likely to be appropriate in cases of character, attitudinal or behavioural failings, or in cases raising wider public interest issues. For example, conditions would almost certainly be insufficient in cases of serious misconduct, violence, dishonesty, abuses of trust and discrimination involving a protected characteristic.

121. Conditions may be appropriate where public protection can be delivered by some restriction of practice, but it is not necessary for either public protection or wider public confidence grounds to suspend the social worker’s registration completely. When considering public protection, decision makers must fully assess insight and any attitudinal behaviours to determine whether or not the social worker is capable of complying with conditions.

122. Conditions can also be imposed on registration for a period of up to 3 years at a time. The order must be reviewed before it expires, and then it can be further extended or replaced with a different order if the social worker is still not fit to practise. The period of conditions should be sufficient to give the social worker a reasonable opportunity to successfully complete any necessary remediation.

123. Conditions must be proportionate and workable. Whether a condition is workable is by reference to the social worker and their working environment, and to any practical implications for employers. For example, case examiners should consider whether it is reasonable to expect an employer to provide the level of supervision necessary to enable the social worker to practise safely. The conditions should be capable of being monitored, for example through management supervision, to ensure compliance.

124. Case examiners should remember that when setting conditions that the primary objective is to protect the public. It is not the role of the regulator to take responsibility for directing how the social worker remediates. It is the social worker’s professional responsibility to restore their fitness to practise, and part of any assessment of successful remediation will be how they have identified and acted on this personal responsibility. The case examiners’ report should give indications of what the regulator expects to see at future reviews by way of evidence of remediation in the form of recommendations. This can be included in the decision reasoning rather than in the body of the conditions.

125. Conditions should not be so restrictive as to be tantamount to suspension. They should be achievable and proportionate. Case examiners must also be satisfied that the social worker is willing and capable of complying with conditions. Previous breaches of guidance or protocols, especially where deliberate, may raise significant doubt about whether the social worker could or would comply with conditions. On the other hand, early engagement with retraining and remediation might be strong indicators that the conditions may be workable.

126. In some types of case such as ill health, it might be reasonable to include a condition that the social worker must cease practise if advised to do so by their treating physician. This enables the social worker to practice when fit enough to do so but protects the public should the social worker suffer a relapse of ill health. This will only be appropriate where the case examiners are satisfied that the social worker will fully engage with their treating physician and has insight regarding their health.

127. Similarly, a condition might be that the social worker must not work unless and until they have passed an assessment of their English language skills to the required standard. This effectively suspends the social worker until they’ve passed the assessment but enables them to start practising as soon as they have done so. However, this is likely to be insufficient if the social worker has previously practised when knowingly deficient in English language skills.

Suspension orders

128. Suspension orders can be imposed for a period of up to 3 years. Suspension is appropriate where no workable conditions can be formulated that can protect the public or the wider public interest, but where the case falls short of requiring removal from the register or where removal is not an option.

129. In deciding on the period of suspension, case examiners should consider the need to protect the public and the wider public interest. They should balance this against the risk that a prolonged suspension might result deskilling. Where possible, it is in the public interest to support the return to practice of a trained and skilled social worker if this can be achieved safely. This means the risk of deskilling is a public interest consideration.

130. Case examiners should remember that the purpose of the proceedings is not to punish. It may be appropriate to impose a longer period of suspension where there is no reasonable prospect of the social worker regaining fitness to practise in the short term. This could arise, for example, where the social worker is subject to a criminal sentence and the suspension is imposed to cover the period of the sentence. It might arise where the social worker does not intend to remediate or practise in the short term but wishes to do so in due course.

131. In cases of chronic ill health, it might be in the interest of the social worker to impose a longer period of suspension. This avoids the stress for the social worker of a review hearing before they have recovered to full health. If the social worker makes an earlier recovery, then an early review hearing can be scheduled to consider lifting the suspension or allowing a phased return to practice through conditions.

132. As a general principle, longer periods of suspension may be appropriate where this is necessary to protect public safety. If the suspension is aimed primarily at maintaining confidence in the profession or setting the professional standards to be observed, then a sanction of suspension up to one year might be appropriate. Given the risk of deskilling, case examiners should consider whether a case warranting a period of suspension longer than 1 year on the grounds of public confidence might be more appropriately disposed of by a removal order.

Removal orders

133. Case examiners cannot decide to impose a removal order. Cases where a removal order is a possible outcome must be referred for a hearing.

Reasons for decisions

134. The case examiners must publish a report for any fitness to practise case only where the social worker’s fitness to practise has been found impaired and a sanction has been given.

135. By contrast, the decisions of the adjudicators are delivered in public, whether or not the social worker’s fitness to practise has been found impaired or a sanction given.

136. It’s essential that the case examiners’ report gives reasons for their decisions and that anyone can read and understand them. The report should make clear the basis of the case against the social worker, and how and why the decision was reached.

137. To achieve this, the case examiners’ reasons for the decisions on impairment and sanction should include the following:

  • a. A description of the events giving rise to the fitness to practise concern
  • b. A summary of the key facts that raise the question of impairment
  • c. An analysis of the reliability and credibility of the evidence that supports the key facts including, where appropriate, the credibility of witness evidenced.
  • d. A summary of where the key facts are contested
  • e. Case examiners should not normally resolve conflicts of evidence but may reject in their report any challenges to evidence that are plainly undeniable
  • f. The factors the case examiners have considered when assessing the seriousness, impairment, and the relative weight given to each factor. They must address and explain all the factors both for and against the social worker
  • g. The reasons for their decision on impairment or sanction. These might include a summary of the facts and the factors as already set out. The reasons should explain the case examiners’ judgment on the current risk to public safety, including any risk to the maintenance of confidence in the profession and of standards of professional performance of social workers

138. Published reports in health cases must not include any information that gives away the precise nature of the social worker’s health condition. Case examiners may have to produce a confidential supporting document for the benefit of the social worker. The published report 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.

Publishing sanctions

139. If a case is closed through accepted disposal, the sanction must be included in the social worker’s entry in the register while it remains in place. This includes warnings and advice issued after a finding of impairment. The reasons for the decision must also be published.

140. Warnings and advice issued if there is no realistic prospect of a finding of impairment are not included in the social worker’s register entry, and the reasons for the decision are not published. Interim suspensions or condition orders are only included in the register for as long as the order is in force.

141. Condition and suspension orders issued after a finding of impairment must continue to be included in the register for set periods after the sanction ceases to have effect, unless the sanction was given as a result of impairment by reason of ill health. These periods are set out in the fitness to practise rules16. A removal order will appear indefinitely in a person’s register entry if their registration is subsequently restored.

142. Sanctions that are imposed because of the social worker’s health will exclude any details that would disclose the medical condition involved.

Requests for further information or submissions

143. In most cases, the case examiners reach a decision based solely on the material they have been given. However, in some circumstances, the case examiners are not able to reach a decision without further information. If this is the case, case examiners must not try to source information themselves. Instead, they must pause their consideration of the case and formally request the information.

144. The information case examiners may request is limited to:

  • a. Clarification of a determinative factual point in the relation to the evidence.
  • b. Legal advice on any aspect of the case or the decision making process.
  • c. Medical advice about the social worker’s fitness to practise.
  • d. Expert or professional advice on an aspect of the case related to the social worker’s practice.
  • e. Specific additional evidence or information that is not part of the evidence provided.
  • f. Further information or submissions from the social worker or complainant.

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

146. Case examiners should make sure they request any additional information or statements as soon as they get the evidence. If the case examiners determine that the case should be referred to a hearing, no further information or statements may be requested.

147. The investigators will be responsible for getting any additional information and for clarifying any facts or evidence. The investigators must not ask the case examiners to justify their request or refuse or block such a request. They may, however, seek clarification of any request through the operations team.

148. In agreement with the guidance on the independence of the case examiners, the case examiners will not have direct contact with the investigators at any time. All requests for information must be sent to the investigators by the operations team.

149. The case examiners must submit any request for information to the operations team in writing. Their request should clearly include what information is required and why.

150. When they get a request for further information, the operations team will immediately record that the case is paused. Case examiners must not continue their consideration of a case until they have received the additional information or have been told the information cannot be provided.

151. New information obtained by the investigators will be shared with the social worker and, if appropriate, the complainant. It may not be appropriate, for example, to share medical evidence or advice with the complainant. Depending on the nature of the information, the social worker and the complainant may be given another opportunity to comment before the case is referred back to the case examiners.

Part 3: The fast-track case process

Fast-track cases

152. A fundamental part of modern regulation is that fitness to practise concerns are dealt with proportionately and promptly. In some cases, an expedited process may be required in order for Social Work England to deliver its primary objective of public protection.

153. For most cases, the case examiners follow the substantive case process as outlined in part 2of this guidance. However, there are circumstances that allow the case examiners to follow an expedited, or ‘fast-track’, case process. Those circumstances are:

a. the investigators have recommended that a case can be closed

b. the social worker has been convicted of a non-listed offence, and they have been given a custodial sentence

c. the social worker was convicted of a listed offence before Social Work England became the regulator.

154. The fast-track case process might also be used in cases where the investigators have recommended that an interim order might be required.

155. If a case falls into one of these categories it is automatically entered into the fast-track process.

Fast-track case conferences

156. Fast-tracked cases will be considered at case conferences—a video call or telephone call that is usually held twice a week.

157. These case conferences usually involve a lay case examiner, a professional case examiner, the case examiner operations manager (or a nominated member of staff in their absence), and a case examiner support officer.

158. Case conferences must have a minimum of two case examiners (one lay case examiner and one professional case examiner) and one member of the operations team.

Role of members

159. During a case conference, it’s the case examiners who make decisions with regard to the cases considered. It’s their responsibility to make sure they protect the independence of their decisions as outlined in maintaining the independence of case examiners. They should be aware of the possibility that their decision making process could be influenced by other Social Work England employees. The case examiners should be particularly careful not to talk to other Social Work England employees in attendance about the merits or otherwise of any other aspect of a case.

160. The role of the case examiner operations manager is to make sure the case conference involves the necessary members and that any conflicts of interest are managed properly. They’ll also address any concerns raised about the fast-track process or the fitness to practise process in general. If they are the only member of the operations team in attendance, they will take notes and draft the decisions made by the case examiners. The case examiner operations manager will then send the draft decisions report to the case examiners for them to finalise. The case examiner operations manager must not challenge any amendments the case examiners make to the draft decisions report.

161. Case examiner support officers may attend case conferences as well as the case examiner operations manager or on behalf of the case examiner operations manager as their nominee. In most cases, the case examiner support officer will take notes and draft the decisions made by the case examiners. They will then send the draft decisions report to the case examiners for them to finalise. The case examiner support officer also must not challenge any amendments the case examiners make to the draft decisions report.

Mutual decision making

162. The case examiners must reach a mutual decision on each case. That is, they must be in unanimous agreement on the outcome.

163. In cases where the case examiners cannot agree on an outcome, they must take all appropriate steps to reach consensus.

164. If, after taking the appropriate steps, the case examiners cannot reach consensus, a third case examiner will be presented with a summary of the case and the two opposing views. The third case examiner will be asked if they agree with one of the other case examiners’ decisions. If they do, that decision will be the outcome. If the third case examiner cannot agree with either of the other case examiners’ views, all parties must withdraw and the case will be discussed by a new pair of case examiners at the next available case conference.

165. In the substantive process, case examiners must withdraw from a case if they cannot reach a mutual decision. When it comes to fast-track cases, the use of a third case examiner means that a decision can be made much more quickly.

Scheduling and allocation

166. The operations team is responsible for the maintenance of an up-to-date schedule of availability for the case examiners. Case examiners must provide their availability in advance so that the operations team are able to accurately forecast and assign new cases.

167. Once a case examiner has provided the operations team with their availability, they have committed to working on the days indicated. Any changes will require authorisation by the head of adjudications through the usual HR process.

168. The operations team will normally schedule two fast-track case conferences each week and will assign a pair of case examiners based on availability. In all cases, the pair will include a lay case examiner and a professional case examiner.

169. When they receive a case that is eligible for the fast-track case process, the operations team will assign it to the next case conference with an available slot. This process will require an element of judgement. However, the operations team should consider the following suggested criteria:

  • a. Case examiners must not review a case if there’s a potential conflict of interest.
  • b. A case conference will usually include between 3 and 5 cases.
  • c. If most of the cases allocated to a particular case conference are being fast-tracked in relation to a potential need for an interim order, a total allocation of 5 cases will usually be appropriate.
  • d. If 3 of the cases allocated to a particular case conference include a recommendation for closure or a conviction, a total allocation of no more than 3 cases will usually be appropriate.

170. The operations team will allocate cases to case conferences in agreement with the principles and processes outlined in the case examiner conflicts of interest guidance. This includes an initial review of new cases considering potential conflicts of interest. They must escalate any potential conflicts to the case examiner operations manager and the head of adjudication and wait for a decision about how to proceed.

171. The operations team will usually provide case examiners with two working days’ notice that they’ve been assigned to a case that’s part of the next conference. They must review the limited information they receive and immediately declare any potential conflicts of interest. 

172. If the operations team get an urgent interim order request within 2 working days of a case conference and they are able to add it to the schedule, the case examiners will be sent limited information immediately so that they have time to declare any potential conflicts of interest.

173. If the case examiners confirm there are no potential conflicts of interest, the operations team will send them the case and the evidence. The case examiners must review the evidence before the case conference to make sure they fully understand matters involved and that there are absolutely no actual or perceived conflicts of interest.

Recommendations for closure

174. Paragraph 4 (1) (d) of the Social Work England appointment rules 2019 says that investigators must present their recommendation for case closure or referral to case examiners in a written report. The investigators may recommend that a case be closed if, for example, they have not been able to find evidence to support the concerns or if the evidence goes against the concern.

175. In cases where the investigators recommend closure, their report will outline each individual concern submitted to Social Work England and state why there was no evidence to support it.

176. In determining whether the case can be closed, the case examiners will apply the realistic prospect test, as outlined in part 2 of this guidance.

177. The case examiners must also be satisfied that there is no realistic prospect of new evidence being found that would support the concerns.

178. In cases where the case examiners agree with the investigators’ recommendation for closure, the case will be closed because there is no realistic prospect that the registrant’s fitness to practise could be found to be impaired.

179. If the case examiners decide there is no realistic prospect that the social worker’s fitness to practise would be found impaired, they may still give warnings or advice if they decide the matter could result in impairment if repeated. The case examiners must consider the guidance provided in part 2of this guidance when deciding whether advice, a warning, or no further action is required.

180. If the case examiners do not agree with the investigators’ recommendation for closure, they must return the case to the investigators for them to investigate further. The case examiners should explain their reasons and, in some cases, they may wish to suggest potential lines of enquiry that the investigators should explore. This is likely to be an appropriate course of action where the case examiners identify that the social worker or the complainant did not receive appropriate opportunity to comment at the start of the investigation.

Convictions

181. Paragraph 1 (2) of Schedule 2 of the Social Workers Regulations 2018 states that there are reasonable grounds for investigating whether a social worker’s fitness to practise is impaired and that there is a realistic prospect that the adjudicators would determine that the social worker’s fitness to practise is impaired in relation to:

  • a. convictions for non-listed offences that carry a custodial sentence and
  • b. convictions for listed offences where the conviction was received before 2 December 2019 that cannot be managed via the automatic removal process.

182. If Social Work England is notified of a conviction after the social worker has been convicted, the case will usually be referred directly to the case examiners by the triage team. The referral must include a certificate of conviction. In some cases, such as those where the conviction relates to fraud or dishonesty, the triage team may also provide a transcript of court proceedings and/or sentencing remarks relevant to the case.

183. If Social Work England is informed of an ongoing criminal investigation or a charge that might lead to a conviction, the triage team may place the case on hold until the criminal proceedings have closed. If the triage team decides an interim order might be required, they may refer the case to the investigators. The investigators will give consideration to the potential need for an interim order and may place the consideration of the case on hold. If the social worker is subsequently convicted, the investigators will collect all the relevant evidence and immediately refer the case to the case examiners through the fast-track case process.

184. When considering fast-track conviction cases, the case examiners are not required to decide if there is a realistic prospect of impairment being found. Paragraphs 1 (2) and 3 (2) of Schedule 2 of the Social Workers Regulations 2018 state that for convictions of the types outlined at the start of this section the realistic prospect test is automatically satisfied.

185. As the realistic prospect test has already been satisfied, the case examiners must consider whether the case should be referred to a hearing in the public interest. The case examiners must refer to the guidance provided on convictions and cautions in part 1 of this guidance, and to the guidance provided on referral to a hearing in the public interest in part 2of this guidance to reach a decision.

186. If the case examiners cannot reach a decision on the evidence provided, they may request additional evidence (such as a transcript of court proceedings and/or sentencing remarks). These requests will be handled in agreement with the process for requesting further information or statements outlined in part 2of this guidance.

Interim orders

187. The Social Workers Regulations 2018 give Social Work England the power to restrict or suspend a social worker’s right to practise during a fitness to practise investigation. An interim order can be given by adjudicators if they think it’s necessary to protect the public or it is in the best interests of the social worker.

188. The following guidance helps investigators and case examiners to decide whether to request that the adjudicators consider putting in place an interim order.

How and when are referrals to an interim order hearing made?

189. If during the investigation the investigators think an interim order ‘...may be necessary for the protection of the public or in the best interests of the social worker.’ (Schedule 2 paragraph 5(4)(a) of the Social Workers Regulations 2018), they must refer a case to the case examiners. It’s then the case examiners who will make an official referral for the interim order.

190. If the case examiners agree that an interim order may be necessary, Social Work England must hold a hearing. The hearing must involve two or more adjudicators who will decide whether or not to make an interim order.

191. If at any time they are considering a concern under the fitness to practise process, the case examiners may refer the case for an interim order hearing if they consider it may be necessary to make an interim order on the grounds above.

Criteria for making an interim order

192. An interim order hearing is where the adjudicators weigh up both the interests of the public and the social worker to decide if an interim order is necessary.

193. When they’re making the decision whether or not to refer a case for an interim order hearing, the case examiners must decide whether there are grounds for adjudicators to consider making an order. This is not the same as deciding that an interim order should be imposed. They should ask themselves whether an interim order may be necessary.

194. As outlined in the introduction of this guidance, the protection of the public is the primary objective of Social Work England. It has 3 elements:

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

195. Referral in the social worker’s best interests may be needed if the social worker is not restricting their practice and as a result is putting themselves or others at further risk, for example.

196. Case examiners should identify and record each criterion related to referral.

197. Case examiners should consult Social Work England’s guidance on referral to an interim orders hearing (case examiner conflicts of interest guidance) for guidance on the factors that affect a decision to refer, the types of concern that may need to be referred, and how to handle circumstances where new information is found after a decision has been made not to refer a concern for an interim order hearing. 

Part 4: quality assurance of case examiners’ decisions

198. Case examiners’ decisions are made independently of Social Work England. All Social Work England employees, including case examiners, have a shared responsibility to maintain the integrity of the decision making process.

199. Case examiners’ decisions must not be influenced, obstructed or interfered with by other employees of Social Work England.

200. Case examiners’ decisions are assessed 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 so that they can be easily understood by social workers, informants, and the wider public.

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

Written outcomes

202. The quality of draft reports is usually monitored by the operations team. They may correct minor errors with the case examiners’ approval before the report is sent to the relevant parties. Minor errors include minor factual errors and any presentational or typographical errors.

203. If a minor error is found by the operations team, it must be corrected as a tracked change and sent back to the case examiners for review. The case examiners may accept or reject any tracked changes as they see fit.

204. Any minor corrections must be signed off by the case examiner operations manager and the case examiners who drafted the report.

205. A copy of each iteration of the report must be kept on file and must include any tracked changes proposed by the operations team.

206. The operations team may also point out any obvious discrepancies or omissions in the report to the case examiners. For example, 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 report, for example if the case examiners have referred to an earlier statement in their own report that they have subsequently removed.

207. If the operations team notice any discrepancies or omissions, they must send their concerns to the case examiners in writing. However, the case examiners do not have to accept any proposed changes.

208. The operations team must not correct material flaws in the case examiners’ report or in their decision making process. Similarly, they must not give any opinions to the case examiners on their assessment of a case, the evidence available, or what the outcome should be.

Conditions

209. The case examiners may decide it is appropriate to allow a social worker to continue to practise subject to a set of conditions. In such cases any conditions are subject to the agreement of the social worker and cannot be imposed unilaterally. Where this is the case, the case examiners must send a draft set of the conditions to the case review team. The case review team is responsible for the monitoring of conditions once they are in place.

210. Case examiners must also share a draft of their report with the case review team if they have decided to suspend the social worker’s right to practise.

211. The case review team may recommend amendments to the conditions drafted by the case examiners in the following circumstances:

  • a. The conditions are not workable.
  • b. The conditions contain typographical, grammatical or formatting issues.

212. The case review team must not amend the case examiners’ draft report. Any recommendations or minor errors that are noticed by the case review team must be sent to the case examiners in writing. The case examiners do not have to accept any recommendations made to them by the case review team.

213. The case review team must not give any opinions to the case examiners on their assessment of a case, the evidence available, or on their decision to dispose of a case with conditions or to suspend the social worker’s right to practise. If the case examiners have decided to suspend the social worker from practice, the case review team may only comment on the proposed conditions they must meet to return to practice.

214. A copy of any recommendations made by the case review team must be kept on file.

Final decisions

215. The quality of final decisions is monitored on a continuous basis by the case examiner operations manager and the head of adjudications.

216. The case examiner operations manager is responsible for reporting cases that might benefit from further scrutiny to the head of adjudications. This might include cases where:

  • a. the ultimate decision and/or the rationale for the decision could be questionable
  • b. the outcome was not as expected or does not fall within the range of what may be considered reasonable or proportionate in all the circumstances; or where
  • c. there may be some valuable learning to be taken from the outcome of the case.

217. The head of adjudication is responsible for selecting a sample of cases and referring them to the quality assurance group. In most circumstances, cases will not be referred until after they’ve been closed. Social Work England employees must never offer an opinion or feedback on a decision to the case examiners before they have concluded a case.

218. In all but the most extreme cases, the quality assurance group will address any mistakes through learning and improvement. Any general feedback or learning that is found during the quality assurance processes will be given to the case examiners as written reports, through training, and in team meetings.

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

220. The quality of final decisions and the decision making process may also be reviewed externally by the Professional Standards Authority. The Professional Standards Authority may provide learning points and feedback upon completion of their review. If the Professional Standards Authority has responded with feedback about a case examiner decision, the relevant case will also be reviewed by the Quality Assurance Group. 

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