This guidance sets out when a final order may be reviewed early.
Guidance on early reviews
Last updated: 6 February 2020
- About this guidance
- What is an early review?
- Why might we direct an early review?
- What is new evidence?
- Routes to early review
- Who decides whether there should be an early review?
- Who hears or determines an early review?
- Breach of an order made through accepted disposal
- Warning orders
- Successful appeals against criminal conviction
- Interim orders
About this guidance
This guidance sets out when a final order may be reviewed early. In other words, before the order would normally be due to be reviewed or before it would otherwise expire. It does not cover early reviews for interim orders as these orders are reviewed at regular intervals.
This guidance is intended primarily for social workers, their representatives, and Social Work England staff. It sets out why and on what evidence an order may be reviewed early, who decides whether to direct an early review, and how the review is conducted.
What is an early review?
When a social worker’s fitness to practise is found to be impaired, the possible outcomes include removal from the register, suspension, conditions of practice or warning orders.
Suspension or conditions of practice orders can be made for up to three years and must be reviewed before they are due to expire. Warning orders can be made for 1, 3 or 5 years. These orders can be reviewed early if new evidence becomes available to suggest the current order needs to be varied, replaced or removed.
Why might we direct an early review?
We may need to review an order early because of a change in circumstances that would mean the original order is no longer proportionate, workable, or sufficient enough to protect the public.
This protection includes maintaining confidence in and promoting the professional standards of social workers. The key principle is that any order imposed on a social worker’s registration must be the minimum necessary at that time to protect the public. This minimum level may change in the light of further evidence about the social worker’s fitness to practise since the original order was imposed.
The order is now disproportionate
Any order imposed on a social worker by us must be the minimum necessary to protect the public, including the wider public interest. This is the position when an order is first made, and it continues to apply throughout the life of the order. So, if an order is no longer necessary to protect the public or can be varied or replaced with one that is less restrictive while still providing sufficient protection, then this should be pursued through early review.
Conditions of practice or suspension orders may be imposed for a relatively long period with the expectation that they can be reviewed early if circumstances change. This avoids the need for frequent reviews which may serve little or no purpose but may be stressful for participants, while allowing for an early review to take place when required to reflect changed circumstances.
For example, a longer period of conditions might be indicated to allow a social worker to recover from ill health but can be reviewed early on receipt of medical reports that the social worker is now fit to practise without restriction.
Similarly, an order to suspend in response to not having the necessary knowledge of English could be reviewed early if the social worker produces evidence of having passed a recognised English language examination to the required standard.
In suspension cases, circumstances may change such that conditions of practice may become a more suitable order. An example might be where a social worker has recovered sufficiently from a health condition to develop insight into how to manage their condition to protect the public. The lack of insight may have required suspension but subsequently developing insight may mean conditions are now a more proportionate order.
Not every change in circumstances will necessarily mean we should hold an early review. For example, a suspension order might be imposed if the social worker failed to engage with the fitness to practise proceedings.
If the social worker subsequently engages, it does not necessarily follow that an early review is warranted. Social workers have a professional duty to cooperate with inquiries into their fitness to practise. It may therefore be contrary to the public interest for an early review to be granted solely because the social worker has belatedly engaged.
It will be relevant to consider the reasons why the social worker did not engage previously, and what evidence the social worker has of their commitment to engaging going forward and of remediating their fitness to practise.
As noted above, protection of the public includes the wider public interest of maintaining public confidence in and promoting the professional standards of social workers. Where the original order was imposed to reflect this wider public interest aspect of protection, the threshold for early review may not be met even if the social worker has remediated so that they are safe to practise.
For example, a suspension order imposed for a finding of dishonesty is less likely to warrant early review, because the purpose of the order includes sending a signal to the public and the profession about the standards expected of social workers. The effect of this signal might be compromised if the order was reduced following early review.
Also, securing positive reports of safe practice or other forms of remediation of the original concern may not be sufficient to mean the order should be immediately reduced or removed. It may be important for the social worker to demonstrate safe practice over an extended period of time to show there is no risk of repetition. This is particularly important where the original concern arose out of multiple incidents and/or where insight was an unresolved issue.
In health cases involving episodic health conditions or addictive behaviours, the health evidence might need to be explicit and positive about the level of risk of relapse before an early review is indicated. The health condition may need to be tested in the work environment if the social work has been too unwell to work to ensure that returning to employment does not trigger a relapse of any condition or addiction.
Whilst the health condition or addiction may be under control, sufficient time will be needed to ensure the working environment does not act as a stressor meaning recovery in itself does not mean an early review is needed straight away.
While personal remediation and conduct since the order was imposed may be relevant to the question of early review, the issue cannot be considered in isolation from the potential impact on the wider public interest if the order was to be varied, replaced or revoked. It is therefore very important that any decision about whether to direct an early review takes into account all the reasons why the order was originally imposed.
The order is no longer workable
This situation is normally relevant to conditions of practice orders. An order may become unworkable for practical reasons, for example the order might require direct supervision of the social worker which the social worker’s employer can no longer support. However, the fact an order is unworkable doesn’t necessarily mean it should be reviewed early.
The overriding consideration remains the protection of the public. So, in the example of an employer not being able to support supervision, the fact the current employer cannot provide supervision doesn’t mean that level of supervision isn’t required to protect the public.
An early review might only be agreed to if it would be possible to varying the terms of the order to make it workable while still providing full public protection.
The order is no longer sufficient
Where we receive new evidence of concern, we may need to direct an early review to determine whether to increase the level of restriction, or in some cases to direct removal.
The new evidence must be relevant to the original concerns that led to the order being imposed, and it must suggest that the current order is no longer enough to protect the public including the wider public interest. New evidence of concerns which are not relevant to the original concern should be pursued as a fresh investigation.
Information about the current order can be taken into account as ‘previous history’ when determining impairment in the new case. For example, there might be evidence of further similar concerns since the order was imposed, or there might be evidence that the social worker is failing to engage with the retraining and remediation required to address the original concerns.
However, the key principle remains that an early review is only required where the current order is no longer sufficient to protect the public. For example, a social worker may initially have difficulties addressing the issues that led to the order being imposed, while they are retraining. Their continuing underperformance does not require a change to the order provided the practice arrangements in place ensure the public is protected from any adverse consequences of the social worker’s actions while retraining.
This protection might be provided by supervision, meaning the social worker’s decisions and proposed actions are checked before being implemented. Similarly, in health cases, a social worker may suffer relapses of ill health, but this would only require a change to the order if the arrangements in place were no longer sufficient to protect the public. For example, because the social worker lost insight and stopped engaging with their recommended treatment programme.
What is new evidence?
The new evidence must be relevant to the concerns that led to the finding of impairment. It must raise a realistic prospect that the order originally imposed is no longer appropriate to address those concerns. It must be genuinely new evidence which was not and could not have been made available to the decisionmakers when they imposed the order.
A further hearing through early review will not beheld to consider evidence which either the social worker or Social Work England failed to present at the original hearing. This means that, almost invariably, the new evidence will be about events which have happened since the order was directed.
The new evidence must be factual and verifiable. Submissions or arguments about the merits of the original case are not evidence and so would not provide a basis for an early review. It is important to emphasise that early review is not a route by which to reargue or appeal the decisions which led to the imposition of the order.
So, for example, it is not a route by which to challenge findings of fact made at a fitness to practise hearing. Social workers have the right to appeal to the High Court against findings and directions at fitness to practise hearings. Early review is not intended as an alternative option to this route of appeal.
Routes to early review
The social worker’s right to request an early review before the order takes effect
Social workers have the right to request an early review in the 28 day appeal period after the order has been directed but before it takes effect. Social Work England must decide whether or not to exercise its discretion to hold an early review in response to a request and will provide the social worker with reasons for that decision.
Bearing in mind that an early review is not an alternative appeal route, the grounds on which we might direct a review under this provision are likely to be exceptional. An example might be that a particular condition of practice is not workable for unforeseen reasons, for example that an employer is unable to support the social worker in meeting the condition.
Another example might be where the ground of impairment is English language deficiency, and in the days following the hearing the social worker passes a recognised English Language test to the standard required.
Early review under this provision would not normally be indicated where the social worker did not engage with the original hearing, unless the social worker has evidence that they were prevented from engaging for reasons beyond their control.
Even then, there must be a realistic prospect that an early review might result in a different order, for example, because the social worker can produce evidence of insight or remediation, where these were major factors leading to the original order.
The social worker’s options to request early review after the order has taken effect
There is no formal right for the social worker to request an early review after an order has taken effect, but in practice we will apply the same principles to the question of whether there should be an early review regardless of the timing or source of any new evidence in the case.
So, the social worker may provide new evidence relevant to an existing order at any time while an order is in place, and Social Work England will decide whether or not to exercise its discretion to hold an early review.
Similarly, we may receive regular reports, for example from a supervisor. These should be reviewed against the test of whether the existing order remains proportionate or sufficient.
Who decides whether there should be an early review?
It is for Social Work England to decide whether to direct an early review. In exercising this discretion, we have a responsibility, on receipt of new evidence either for or against the social worker, to assess whether the current order remains proportionate and/or sufficient to protect the public.
During the life of an order, we will keep in mind the possibility that the level of restriction could be reduced or removed. However, when a social worker’s fitness to practise has been found to be impaired, the burden is on the social worker to satisfy us that their fitness to practise is no longer impaired. There is therefore no obligation on us to actively seek evidence in support of the social worker.
There is no entitlement to an early review. Whether to direct an early review is a matter for Social Work England to determine. In making this decision, we will assess whether there is a realistic prospect that the adjudicators would determine that:
- the social worker’s fitness to practise is no longer impaired or
- the current final order should be varied or replaced with a different final order
Who hears or determines an early review?
Final orders imposed by the case examiners
The case examiners may impose a final order (except a removal order) in a case through accepted disposal. This is where the social worker accepts that their fitness to practise is currently impaired and agrees to the terms of an order proposed by the case examiners.
Early review of case examiner directed orders will be carried out by the adjudicators. The adjudicators may revoke the existing order, propose a varied or different order (except a removal order), or decide the current order should remain unchanged.
The social worker will have the opportunity to attend an early review hearing before the adjudicators and be represented in order to make submissions.
In any case where the original order was directed by the case examiners, a removal order is not an option when first reviewing that order. Subject to that restriction, any order may be imposed that was available when the original order was directed.
Final orders imposed by adjudicators
Where the order was directed by adjudicators following a fitness to practise hearing or meeting, the early review will be conducted by a panel of adjudicators.
The social worker will have the opportunity to attend before the adjudicators and be represented in order to make submissions. If the social worker does not attend, the review may be conducted by means of a meeting.
The adjudicators may only impose a removal order following an early review hearing where the original order was imposed by the adjudicators. Also, a removal order may not be imposed in cases of lack of competence or capability, adverse physical or mental health, or not having the necessary knowledge of English, unless the social worker’s registration has been subject to a final order for suspension and/or conditions for a period of at least 2 years continuously.
Breach of an order made through accepted disposal
Where the case examiners have directed an order and the social worker is alleged to have wilfully breached it, this should be investigated and, if appropriate, referred to the adjudicators, as a new allegation of impairment by reason of misconduct. If the adjudicators find the facts of the alleged breach proved and a finding of current impairment, then they may go on to consider making a removal order.
In health cases, a breach of an order may be as a result of deterioration in the health condition, for example a failure to follow the guidance of a treating doctor. An early review may well be required to consider increasing the level of restriction, but such health related breaches should not usually be seen as potential misconduct if the ill health explains the breach.
If a referral for breach of an order is made and the new concern is referred to the adjudicators, the original order should also be referred at the same time for early review. This is usually considered at the sanction stage of the adjudicators’ determination of the new concern.
An allegation of a breach that was sufficiently serious to suggest impairment would, by definition, mean the original order was no longer sufficient to protect the public.
Warnings are imposed for periods of 1, 3 or 5 years. The purpose of a warning is often primarily to warn the social worker that a repetition of the fitness to practise concern may lead to a more serious sanction.
The length of the order will usually reflect the view of the decisionmakers about the period over which the social worker needs to practise safely so as to show there is a low risk of repetition. It follows that practising safely and not repeating the concern is not sufficient new evidence to justify shortening the order.
However, an early review might be warranted in response to positive objective evidence about how the social worker has reduced the risk of repetition, for example successful completion of relevant educational or professional qualifications, or achievements at work resulting in formal recognition such as promotion or awards.
As noted above, early reviews cannot go behind the original decision to impose the order. If an order was imposed for public interest reasons, to maintain confidence in and the professional standards of social workers, it is likely to be inappropriate to reduce the length of the order on early review. This is because to do so might be in conflict with those public interest reasons for imposing the order.
An early review of a warning order will almost inevitably be needed where there is new evidence of further episodes of similar concerns since the warning order was imposed. This may lead to an early review of the warning in order to replace the warning order with a more restrictive sanction.
Successful appeals against criminal conviction
Where a finding of impaired fitness to practise has been made and an order imposed in respect of a criminal conviction, and the social worker subsequently successfully appeals against that conviction, then an early review should be held to consider revoking the order.
However, social workers should note that early reviews cannot quash previous findings, so these would stay on the social worker’s registration record, albeit annotated to show the subsequent turn of events. In order to have the previous findings quashed, the social worker would need to appeal to the High Court. It is unlikely we would contest such an appeal.
Interim orders can be imposed during an investigation, during a part-hard hearing or at the end of a substantive hearing to cover the appeal period where a substantive order has been imposed.
Interim orders are reviewable when they are imposed during an investigation or during the intervening period where a hearing has adjourned part heard. They cannot be reviewed when they are imposed to cover an appeal period.
Those interim orders that are reviewable, will be reviewed initially after 6 months of being imposed, and then every 3 months thereafter for the duration of the order.
A request for an early review of an interim order will be considered along the same or similar grounds as discussed above but due to the frequency of the reviews that will already be taking place, the need for an early review of an interim order is less likely.
At each review, the decision maker will decide whether the order is still necessary or whether a greater or lesser order is needed, such as changing an interim conditions order to one of interim suspension or vice versa, dependant on the evidence that is reviewed.
We acknowledge the pressures that social workers face, and we appreciate the impact that the fitness to practise process can have, particularly for those in ill health. We would encourage social workers to access dedicated support services. Details of services that may be able to assist.