Discontinuance guidance

Last updated: 16 December 2022

Contents

• Who this guidance is for
• Terminology used in this guidance
• What discontinuance means
• When we may apply for discontinuance
• How we apply for discontinuance
• How discontinuance is decided
• The difference between discontinuance in part and amendments to regulatory concerns or allegations

Who this guidance is for

This guidance is for (all of the following):

• Social Work England employees
• social workers and their representatives
• adjudicators

Terminology used in this guidance

Allegations

Allegations are concerns that were considered and referred to a fitness to practise hearing by the previous regulator’s (HCPC) Investigating Committee Panel (ICP) and transferred over to Social Work England.

Regulatory concerns

Regulatory concerns are concerns that have been considered by our case examiners and referred to a fitness to practise hearing.

Statutory grounds

Statutory grounds are set out in regulation 25(2) of the Social Workers Regulations 2018 (as amended) and include (all of the following):

• misconduct
• lack of competence and capability
• a conviction or caution in the UK or in another country
• adverse physical or mental health
• a determination by another regulatory body that fitness to practise is impaired
• being included on the Disclosure and Barring Service barred list or Scottish Ministers child and adult list
• not having the necessary knowledge of English

What discontinuance means

After a case has been referred to a fitness to practise hearing, we will (do both of the following):

• undertake further enquiries
• gather additional evidence in preparation for the hearing

As a public body, we act in the public interest and will not seek to pursue regulatory concerns or allegations that have no realistic prospect of being found proved.

When we review the available evidence, we may consider that it no longer has a realistic prospect of being able to establish all or part of the regulatory concerns or allegations.

In those circumstances, we may seek to discontinue all or part of the regulatory concerns or allegations.

An independent decision maker will decide whether discontinuance should be agreed. This will be either adjudicators or case examiners.

When we may apply for discontinuance

Social Work England may apply for discontinuance in the following circumstances (any of the following):

• when new evidence obtained may indicate that the regulatory concerns or allegations are now less serious
• when new evidence obtained may indicate there is no longer a realistic prospect of proving the alleged facts, statutory grounds and/or fitness to practise being found impaired
• there are evidential concerns which may impact on whether there is a realistic prospect of proving the alleged facts, statutory grounds and/or fitness to practise being found impaired

An example of an evidential concern may be where a key witness has refused to attend a hearing to provide oral evidence to the adjudicators and we (both of the following):

• have considered measures to encourage their attendance
• do not consider it fair to the social worker to proceed without the witness’s attendance or make an application for the information to be relied on in the witness’s absence

We are unlikely to apply to discontinue where (either of the following):

• the evidence needs to be tested through questioning at a hearing
• there are conflicts in the evidence we have obtained

In these circumstances we consider it more appropriate to have these matters considered at a fitness to practise hearing.

Regulatory concerns

Regulatory concerns are concerns that have been considered by our case examiners and referred to a fitness to practise hearing.

Applications to discontinue one or more (but not all) regulatory concerns will take place at a case management meeting [1]. This will be before the adjudicators, in line with the fitness to practise rules. A case management meeting cannot be attended by members of the public.

Applications to discontinue all regulatory concerns will be made to adjudicators in a public hearing [2]. This hearing can be attended by members of the public in most circumstances.

[note 1] Rule 27(2) of the Fitness to Practise Rules 2019 (as amended) states: ‘At a case management meeting the adjudicators may discontinue one or more of the factual particulars and/or grounds on which the case examiners have referred a case to the adjudicators, when the adjudicators are satisfied that new information available since the determination of the case examiners means that there is no longer a realistic prospect of finding those factual particular(s) and/or ground(s) proved.’

[note 2] Rule 52(1) of the Fitness to Practise Rules 2019 (as amended) states: ‘Where the regulator considers that new information available since the determination of the case examiners means that there is no longer a realistic prospect of a determination of impairment in relation to the case, the regulator may make an application for discontinuance of the case to be considered by the adjudicators.’

Allegations (HCPC transfer cases)

Allegations are concerns that were referred to a fitness to practise hearing by the previous regulator’s ICP and transferred over to Social Work England.

Applications to discontinue one or more (but not all) of the allegations will take place (either of the following):

• at a case management meeting
• be dealt with as a preliminary issue at the beginning of the fitness to practise hearing

Applications to discontinue all allegations will be referred to the case examiners to consider in line with the just disposal of transfer cases policy. They will consider whether there is still a realistic prospect that the social worker’s fitness to practise is impaired.

How we apply for discontinuance

Application to the adjudicators

To assist the adjudicators, we will prepare a written statement of case.

This will be prepared in advance of the case management meeting or hearing and will set out (all of the following):

• a summary of the case
• details of the new evidence or evidential concerns
• an explanation of why the new evidence or concerns mean there is no longer a realistic prospect of (part or all of) the regulatory concerns being proved
• an explanation of what steps (if any) we have taken to resolve the situation (for example, by seeking other witnesses) or why such steps are unavailable or inappropriate
• an explanation of whether we think the discontinuance would affect our overarching objective of public protection

These documents will also be sent to the social worker and/or their representative before the case management meeting or hearing. They will then have the option to respond.

Application to the case examiners

If we are applying the just disposal of transfer cases policy and referring allegations back to the case examiners to consider, we will complete the appropriate template form.

This form will also be sent to the social worker and/or their representative before the referral to case examiners. They will then have the option to respond to them.

How discontinuance is decided

The case law makes it clear that decision makers (at Social Work England this will be case examiners or adjudicators) cannot simply agree to discontinue allegations and must (both of the following):

• play an active role in making sure they have the evidence needed to make a decision
• be fully informed before deciding to discontinue a case [3]

Decision makers should be provided with all the facts so they can decide whether (either of the following):

• it is appropriate for the regulator to no longer pursue the allegations
• they should require the regulator to reconsider that view [4]

[note 3] Ruscillo v CHRE [2004] EWCA Civ 135; The court determined that a regulator ought to “play a more pro-active role than a judge presiding over a criminal trial in making sure that the case is properly presented and the relevant evidence is placed before it [para 80].” PSA v NMC and X [2018] EWHC 70 (Admin)

[note 4] PSA v NMC and X [2018] EWHC 70 (Admin)

Discontinuance in part (one or more regulatory concerns, allegations or statutory grounds)

Adjudicators will consider our application for discontinuance in part at a case management meeting. They will then decide why one or more of the regulatory concerns, allegations or statutory grounds should no longer be referred to a fitness to practise hearing.

They will set out the reasons for this decision, explaining (both of the following):

• what has changed since the case examiner or ICP decision
• how this affects the realistic prospect of the relevant regulatory concerns, allegations or statutory grounds being found proved

How the case management meeting takes place can be (any of the following):

• agreed between the parties
• determined by us
• determined the adjudicators

The normal method would be for these decisions to be made in a meeting (without the social worker or our case presenter present). Sometimes it may be necessary for our advocate or the social worker to attend in person and make oral arguments.

We will normally appoint a legal adviser to assist the adjudicators at these case management meetings.

Discontinuance in part agreed

If the adjudicators agree to the application, they may be asked to consider setting additional directions to assist the progression of the case to a fitness to practise hearing. You can read more about the case management process and directions in our pre-hearing case management guidance.

Discontinuance in part not agreed

If the adjudicators do not agree to the application, the regulatory concerns, allegations or statutory grounds will continue to be referred to a fitness to practise hearing.

The adjudicators may still be asked to set additional directions. This is to help the progression of the case to the fitness to practise hearing.

Publication of information

The remaining concerns, allegations and statutory grounds will be published on the website 14 days before the fitness to practise hearing. This is in line with our publication policy.

The adjudicators at the final hearing will not be aware of the regulatory concerns, allegations or statutory grounds that were discontinued.

Discontinuance in full (all regulatory concerns)

We will make an application for discontinuance in full at a one-day fitness to practise hearing. A statement of case will be provided to the social worker and the adjudicators, setting out why there is no longer a realistic prospect of a determination of impairment.

At the hearing, our advocate will give the adjudicators a full opening statement to explain the case. They will also provide an explanation as to why we believe there is insufficient evidence to support all of the regulatory concerns and make a finding of impairment.

Discontinuance in full agreed

If the adjudicators decide that there is insufficient evidence to make a finding of impairment, they will then make a decision that the social worker’s fitness to practise is not impaired and may impose an outcome in accordance with paragraph 12(1) of Schedule 2 of the Regulations including [5] (any of the following):

• give a warning to the social worker regarding their future conduct and performance
• give advice to the social worker on any matter related to the fitness to practise proceedings
• take no further action

The adjudicators are required to provide reasons for their decision. The decision will be published for one month.

[note 5] Rule 52(3)(a) of the Fitness to Practise Rules 2019 (as amended)

Discontinuance in full not agreed

If the adjudicators do not agree that there is insufficient evidence to make a finding of impairment, they will be asked to provide reasons for their decision [6].

They may adjourn the hearing and be asked to provide further directions as to the progression of the case to a fitness to practise hearing.

These may include (but are not limited to):

• adjourning the hearing to make sure witnesses can attend to give evidence
• requiring the investigators to obtain (and provide to them) further information or submissions relevant to the fitness to practise hearing

[note 6] Rule 52(3)(b) of the Fitness to Practise Rules 2019 (as amended)

Publication of information

The regulatory concerns will be published on the website 14 days before the hearing. It will say that they are the subject of a discontinuance in full application.
Should the adjudicators agree to discontinue the case in full, the determination will be published for one month. This is in line with our publication policy.

The difference between discontinuance in part, and amendments to regulatory concerns or allegations

This guidance only applies to those cases where we are applying to discontinue distinct regulatory concerns or allegations rather than changing part of them.

Discontinuance in part is different to cases where we are seeking to make amendments to the wording of regulatory concerns or allegations.

How we will make these types of amendments will depend on the type of case.

Case examiner decisions

Case examiners will refer the case (including any regulatory concerns) to a fitness to practise hearing. Regulatory concerns are broader than allegations. Following the case examiner decision, we particularise them into more formal charges as set out in the statement of case.

This may require making amendments to the wording of the concerns, for example changing words or phrases. These changes will provide clarity but will not be substantive changes to the regulatory concerns.

HCPC transfer cases that were referred to a hearing before we became the regulator

These cases are what we refer to as allegations. Allegations are treated differently to regulatory concerns because they have already been particularised by the relevant ICP of the HCPC.

It may be necessary to amend the allegations to make them more specific (or to correct an error in drafting) for example the date an incident occurred may be incorrect.

These types of amendments will be dealt with as a preliminary issue at the beginning of the fitness to practise hearing.

We may also decide there is insufficient evidence in relation to a particular allegation at the start of the hearing rather than through an application to discontinue.

This will happen when there are allegations that are no longer capable of being proved at a hearing and they are non-prejudicial. That means the adjudicators knowledge of those withdrawn allegations would not affect the fairness of the remaining proceedings for the social worker.

It might be that the allegation does not affect the overall seriousness of the case. For example if particulars of an allegation about record keeping are removed because there were errors found in 4 rather than 6 records.