Power to review case examiner decisions (rule 12G)

Published: 16 December 2022

• About this guidance
• How to apply for a review of a case examiner decision
• Summary of the power to review case examiner decisions
• In what circumstances a decision might be reviewed
• How we determine whether an application is eligible 
• Stage 1: should a full review be conducted? 
• Before we start the full review 
• Stage 2: full review of the case examiner decision
• A fresh decision by the case examiners 
• If you are unhappy with the outcome 
• Examples

About this guidance

This guidance is about (all of the following):

• our power to review case examiner decisions under rule 12G
• when and why we might review a case examiner decision
• the rule 12G process
• how to apply for a review of a case examiner decision under rule 12G

Who this guidance is for

If you think there is a problem with a case examiner decision, we may be able to review their decision in limited circumstances. We can only decide to review a case examiner decision if the grounds for review have been satisfied.

This guidance is for anyone who may be considering applying for a review of a case examiner decision under rule 12G. It may also be useful for anyone involved in the fitness to practise process.

There is separate guidance available for our case examiners.

How to apply for a review of a case examiner decision

You will need to complete our application form in order for us to consider reviewing a decision.

In the form, you should explain how your concerns amount to (one or both of the following):

• a material flaw in the case examiners’ decision
• new information which could change the decision

You should read this guidance carefully before you complete the application form. This guidance will help you to determine whether we are likely to accept the application and what information you’ll need to provide us with.

It is important that you complete the form as otherwise we will not be able to proceed with the review process. This is because Social Work England can only decide to review case examiner decisions if the grounds for review have been satisfied.

Complete the online form

Accessibility

If you have accessibility requirements which prevent you from using the form, you can email [email protected] or call us on 0808 196 2274. We will support you to complete the application.

Please be aware that we cannot advise on whether an application is likely to be successful or not.

Summary

What is the power to review case examiner decisions (via rule 12G)?

In a limited set of circumstances, Social Work England has the power to carry out a review of a case examiner decision. This includes (any of the following decisions):

• a decision that there is no realistic prospect that the adjudicators would find the social worker’s fitness to practise impaired
• a decision to take no further action on one or more concerns (to close a case in part or in full)
• a decision to issue advice or a warning
• a decision to make a final order by an accepted disposal (with a final order such as conditions of practise, suspension or removal)

Where we find that something went wrong with the decision, we have the power to refer the case back to the case examiners for a fresh decision.

This power is set out in rule 12G of the Social Work England (Fitness to Practise) Rules 2019 and schedule 2, paragraph 9A of the Social Workers Regulations 2018.

Who can apply for a rule 12G review?

There are a number of people who can apply for a review of a case examiner decision under rule 12G. This includes (any of the following):

• the regulator (Social Work England)
• the social worker that was investigated
• the complainant
• someone else with an interest in the decision

How do we decide whether a fresh decision is necessary?

Rule 12G sets out a number of tests that we need to apply to each application for review. This is a two-stage process, completed by our power to review team.

The two stages are as follows:

1. Stage 1. Where we have determined that an application is eligible, we will decide whether a review of the case examiner decision is necessary. We will do this using the tests set out in rule 12G.

There are two possible outcomes at stage 1:

• Where we decide that a review is necessary, we will carry out a full review of the case examiner decision (stage 2).
• If we decide that a review is not necessary, the rule 12G process will end. The case examiner decision will remain in place.

2. Stage 2. We will carry out a review of the case examiner decision.

There are two possible outcomes at stage 2:

• If we decide that a fresh decision is necessary, we will refer the case back to the case examiners. The case examiners will then make a fresh decision on the case.
• If we decide that a fresh decision is not necessary, the case examiner decision will remain in place.

What this process is not for

The rule 12G process looks back at whether there was a problem with the decision.

The rule 12G process is not (either of the following):

• an opportunity to present the same concern to a new decision maker (with the view of obtaining a different outcome)
• the same process as reviewing an ongoing sanction (such as a conditions of practice or suspension order). Where a social worker is subject to a conditions of practice or suspension order, the adjudicators will review this sanction on a regular basis. At times, they may carry out an early review. During these reviews, the adjudicators will look at whether the social worker’s fitness to practise is still impaired. They will also consider the most appropriate sanction (based on their current position).

If you have information which post-dates the decision

In some cases, there may be relevant information which becomes available after the case examiner decision is made. This means that the information came into existence after the date of the decision.

If so, this information will not normally be considered new information (for the purposes of making a rule 12G decision).

This information should be considered as part of (either of the following):

• the review process for the final order
• the hearing process (where a case has been referred to the adjudicators)

In some cases, there may be new information which amounts to a new allegation or further concerns about a social worker. A new referral form should be completed instead. We will treat this as a new referral.

In what circumstances a decision might be reviewed

What decisions can Social Work England review?

Rule 12G only applies to certain case examiner decisions (made on or after 16 December 2022). [1]

The types of decisions we are able to review are (any of the following decisions):

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

Reviewing part of a decision

Rule 12G(2) is clear that either all or part of a case examiners’ decision may be subject to review.

“Part of” a decision may refer to a specific part of the case, or to a stage in the process. It may include (any of the following):

• One of the factual concerns (but not all)
• one of the grounds of impairment alleged (but not all)
• the decision on impairment (as opposed to the decision on the factual concerns)
• the sanction proposed as part of an accepted disposal (as opposed to proposing accepted disposal)
• the decision to give a warning (instead of advice or no sanction)

This means that where the case examiners consider that some of the facts of the case or the finding of impairment are not capable of being proved, and they either close all of the concerns which have been referred to them or some of the concerns, we can review the part of their decision which has been closed.

This also means that we will be able to review a case where some of the concerns have been referred to the adjudicators but where some of the concerns were closed by the case examiners and not referred on. We will only be able to review those concerns which have been closed and we will not be able to consider the concerns which have been referred to the adjudicators.

[note 1] Schedule 2 of the Social Workers Regulations 2018, paragraphs 6, 7 and 9

Who can ask for a review?

There are a number of people who can apply for a review of a case examiner decision. These are (any of the following): [2]

• the complainant i.e. the person or organisation who first raised the concern or allegation with Social Work England
• the social worker who was the subject of the case examiners’ decision
• the regulator (Social Work England)
• any other person who has an interest in the decision (in our opinion)

Who is ‘a person with an interest in the decision’?

A person with an interest in the decision may include (any of the following):

• the person or organisation who first raised the concern or allegation against the social worker (where this was not Social Work England. For example, to the police or to the local authority)
• the social worker’s employer(s)
• anybody with whom the social worker is contracted to provide services (for example, an organisation that an agency social worker is working for
• another regulator of social workers
• any other individuals or organisations who may, in the particular circumstances of the case, have such an interest

This list is not exhaustive. Other people or organisations may also have an interest in the decision.

We will assess who has an interest on a case-by-case basis. A person or organisation will need to be able to explain why they have an interest in the decision. For example, by explaining how they are linked to the social worker or the outcome of the case.

[note 2] Rule 12G(2) & (3)

How we determine whether an application is eligible

When we receive an application for a review of a case examiner decision, we will decide whether it is eligible. We do this by checking whether the application meets certain criteria.

These criteria are (all of the following):

• the case examiners made their decision on or after 16 December 2022
• the decision is one which can be reviewed 
• the application has been made by a person with an interest in the decision 
• the application has been made within 3 months of the decision (unless there are exceptional circumstances) [3]
• the applicant has not previously applied for a review of the same decision (unless there are exceptional circumstances or new information) [4]
• the application has been made using the application form [5]

Time limit for receiving an application

We cannot start a review of a decision more than 3 months after the date of that decision. This is unless there are exceptional circumstances.

Exceptional circumstances

When we assess whether there are exceptional circumstances, we will consider all of the following:

• whether there was a significant delay between the case examiners making their decision and it being sent to the applicant, or whether they received a copy of the case examiners' decision
• the extent of the delay and the reasons for it
• the seriousness of the allegation[s]
• if the allegations relate to a single incident or a wider pattern of behaviour
• the continuing risk to the public and/or public interest
• if it’s likely that relevant evidence will no longer be available
• whether and the extent to which the concerns have been considered elsewhere, such as the courts or an ombudsman
• if the allegations raise an important, new or developing area of practice or principle of law

We try not to define “exceptional circumstances” too narrowly. This allows us to consider each case fairly and with flexibility.

The Courts have previously defined “exceptional circumstances” as:

“a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” [6]

The Courts have also found that a decision must make clear what the exceptional circumstances are. This is so that the registrant may understand why this case was exceptional. [7] [8]

Second (and subsequent) applications

In some cases, the case examiner decision review team will decide that the original decision still stands.

If so, we will not review any further applications from the same person. This is unless (one or both of the following):

• they provide us with new information
• there are exceptional circumstances [9]

An example might be where the applicant later has access to information that was not available at the time of the case examiners’ decision.

Where the case examiners make a fresh decision, we consider this to be a new decision. This means that someone or the same person can apply for this new decision to be reviewed under rule 12G.

[note 3] Rule 12G(6)

[note 4] Rule 12G(7)

[note 5] Rule 12G(4)

[note 6] Lord Bingham CJ in R v Kelly (Edward) [2000] 1 QB 198, approved by the Court of Appeal in R v Kelly (Edward) (No.2) (2001) EWCA 1751

[note 7] R (Gwynn) v GMC [2007] EWHC 3145 (Admin)

[note 8] Paragraph 46: “While the 2004 Rules do not impose a duty to give reasons for a decision… fairness to both the practitioner and the patient requires that reasons are given by the Registrar… On the assumption that the irregularity is capable of being cured, the practitioner must be able to identify the “exceptional circumstances of the case”, which have led the Registrar to conclude that it is in the public interest, in those circumstances, that it should proceed; otherwise he or she will be left with a very real doubt as to whether the underlying reason for the Registrar's decision was not the exceptionality of the case, but a corporate desire on the part of the GMC to avoid the inconvenient or embarrassing consequences of its own procedural errors.”

[note 9] Rule 12G(7)

Stage 1: should a review be conducted?

If an application meets the eligibility criteria we have set out above, a decision maker at Social Work England will then consider whether we should carry out a review of the case examiner decision. This decision will normally be made by one of our lawyers. We refer to this decision as a stage 1 decision.

We do not carry out a full review of the case examiner decision at this stage. Rather, we decide whether it is necessary for us to carry out a review.

The stage 1 decision consists of 2 decisions. A case must pass each decision for us to progress to a full review.

We first consider whether there may be something wrong with the case examiner decision. We will decide whether we have reason to believe (one or both of the following):

• the decision may be materially flawed [10]
• there may be new information which may have led to a different decision [11]

We then decide whether a review of the decision is necessary (one or more of the following):

• for the protection of the public
• for the prevention of injustice to the social worker
• otherwise in the public interest [12]

Each of these decisions will be made separately.

Material flaw and/or new information

Material flaw

A decision can be flawed (in any of the following ways):

• in its reasoning
• in its content
• as a result of the process that was followed

The flaw may only relate to one part of the decision. It is not necessary to have reason to believe that the entire decision may be flawed. However, the flaw must be a material one and have the potential to affect the final decision.

What amounts to a material flaw?

At stage 1, we are considering whether the decision may be flawed, not whether it is flawed.

What could amount to a material flaw may be very broad. As such, it is not possible to include an exhaustive list of possible material flaws. However, examples include (any of the following):

• the concerns were not investigated properly
• there was an error of fact in the information we provided to the case examiners (or the case examiners made an incorrect assumption as to the facts)
• the case examiners did not consider all of the concerns raised
• the case examiners did not consider (or have access to) all the relevant information
• the case examiners considered irrelevant considerations, or failed to consider the relevant considerations
• the reasons the case examiners provided for the decision are not sufficiently detailed, such that it is not possible to understand the decision
• the case examiners attempted to resolve conflicts of evidence
• the case examiners did not apply the relevant guidance (or did not give clear, detailed and sufficient reasons for departing from the guidance)
• the case examiners granted an accepted disposal where the social worker has not admitted the facts or impairment
• the decision appears to be irrational
• there is an error in law in the decision (for example, the wrong test was applied, or the procedure set out in the Social Workers Regulations 2018 was not followed)
• there are concerns of actual or apparent bias on the part of the case examiners

New information

At stage 1, we define “new information” as information which:

• was available (in existence) at the time that the case examiners made their decision
• the case examiners did not know about when they made their decision
• may have led to a different outcome (if the information had been available to the case examiners)

If the applicant does not provide the new information

In some cases, the applicant may not have access to the new information. If so, they do not need to supply the new information to us when they make their application.

However, it is helpful if the applicant can provide us with (any of the following):

• details about what new information there is
• the reasons why they have not provided the information or material
• why the information would have led to a different outcome

If the applicant has not provided the new information, the decision maker will need to consider (all of the following):

• the reasons why the applicant has not provided the information or material
• whether the applicant has made any efforts to obtain the information
• whether the information exists
• whether we could obtain the information

Necessary for the protection of the public, to prevent injustice, or otherwise in the public interest

At stage 1, we consider whether it is in the public interest to carry out a review:

Factors we will consider may include (any of the following):

• the nature and seriousness of the concerns about the social worker’s practice
• whether there is a real risk of harm to the public if the decision is not reviewed
• any evidence available of remediation (either before or since the case examiners’ decision), which suggests that they are unlikely to repeat the behaviour which caused the concerns
• whether the concerns have been investigated or considered elsewhere (such as by the Courts or an ombudsman)
• how much time has passed since the concerns
• whether there are any other concerns or fitness to practise decisions about the social worker
• whether the social worker had the opportunity to comment on the concerns before the decision was made
• whether a review is necessary to prevent unfairness to the social worker
• the need to promote and maintain public confidence in the profession and Social Work England as the regulator of social workers, and to promote proper professional standards and conduct

Considering all or part of the case

In some cases, the applicant may make an application about part of a decision. If so, the decision maker will consider whether opening a review into part of the decision may affect the outcome of other parts of the decision.

The decision maker may also identify grounds for a review which the applicant has not identified. If so, the decision maker may also refer other parts of the decision back to the case examiners.

We are not limited to the scope of the initial application. We may consider the entirety of the case examiners’ decision when carrying out our review.

Progressing to stage 2

The case will progress to stage 2 if (both of the following):

• there may be a material flaw and/or may be new information
• a review of the decision is necessary in the public interest

At stage 2, the decision maker will carry out a review of the case examiner decision. They will consider whether the case examiners need to make a fresh decision on the case.

[Note 10] Rule 12G(2)(a)

[Note 11] Rule 12G(2)(b)

[note 12] Rule 12G(5)

Before we start the review

Telling people that we will be carrying out a review

Before we start a review of the case examiner decision, we will inform (all of the following people): [13]

• the social worker
• the complainant
• the person who applied for the review (if this is not the social worker or complainant)

We may also inform any other relevant people (if we consider them to have an interest in the decision).

We may provide any of the above parties with any new information that we have received. We will do this where it is appropriate to disclose this information to them. We are unlikely to disclose any information which could be sensitive or personal, or which should not be disclosed at this stage.

We will give any person we notify of the stage 1 decision at least 14 days to provide written submissions and further information. We will do this before we carry out the review of the case examiner decision. [14]

Further investigation

We may decide to make further enquiries or seek further evidence. We will do this if the decision maker feels that this will help them decide if a fresh decision is necessary. [15]

This is not an opportunity for us to reinvestigate the case. We will only seek out information which is relevant to the potential material flaw or new information.

Once the further investigation work is complete, we will disclose a copy of any relevant information we obtain to the social worker. We will give them at least 14 days to provide any written submissions.

We may also disclose any relevant information to any other person with an interest in the decision (where we consider it appropriate to do so). We may also seek written submissions from them.

[note 13] Rule 12G(8)

[note 14] Rule 12G(9)

[note 15] Rule 12G(8)(c)

Stage 2: review of the case examiner decision

Reviewing the case examiner decision

Once we have received responses (or the allotted time for responses has passed), we will conduct a review of the decision.

We will decide (both of the following): [16]

• whether the decision, for any reason, was materially flawed (in whole or in part)?
• whether there is new information which would probably have led (wholly or partly) to a different decision?

If one (or both) of the above criteria is met, we will decide whether a fresh decision is (one or more of the following):

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

Factors that may have led to a review being in the public interest will not necessarily mean that there is a public interest in a fresh decision being made (even if one of the grounds has been met). A review of the case may have sufficiently satisfied the public interest, meaning that a fresh decision is not necessary.

Is a fresh decision necessary?

When considering whether a fresh decision is necessary, the decision maker may also consider (any of the following factors):

• the likely difference in outcome following a fresh decision. If a fresh decision is highly likely to result in the same outcome (albeit on different grounds), it is less likely that a fresh decision is necessary
• the likely impact of a fresh decision
• whether any other investigations or court proceedings are being brought on the basis of our findings

These factors are not exhaustive.

Possible outcomes

The only possible outcomes of a review of case examiner decision under rule 12G are (either of the following): [17]

• the case examiner decision remains in place
• we refer the case back to the case examiners to make a fresh decision

If we decide that a fresh decision is necessary, this means that we will revoke the decision of the case examiners. We will then refer the decision back to the case examiners for reconsideration and a fresh decision.

Part of a decision

Where part of a decision is referred back to the case examiners to make a fresh decision, only that part of the decision is revoked. The remaining part of the case examiner decision remains in place.

Examples of where part of a decision may be referred back to the case examiners can be found at the end of this guidance.

[note 16] Rule 12G(10)

[note 17] Rule 12G(11)

Interim orders

Where we decide to revoke the case examiners’ decision, we will consider whether it is necessary to refer the case for an interim order hearing.

A fresh decision by the case examiners

Who makes the fresh decision?

A fresh decision may be made by (either of the following):

• the same case examiners that initially considered the case
• a new pair of case examiners

The case examiner operations team are responsible for allocating the fresh decision to the case examiners.

The same pair of case examiners

There may be situations where it is more appropriate for the case to go back to the original case examiners. For example, where there are a large number of documents, or where we receive new information which could change the original decision.

A new pair of case examiners

In some cases, the case examiner operations team will appoint new case examiners. This is more likely where (both of the following apply):

• we have found a material flaw in the original decision
• this flaw relates to the decision-making of the original case examiners (for example, where they have made an irrational decision)

Independence and impartiality

The case examiners are independent and impartial decision makers. They will have the full range of outcomes available to them when they reconsider the case.

What we share with the case examiners

We will share the reasons why the original decision should be reviewed with the case examiners. However, we will not direct what the fresh decision should be.

We may also provide the original decision to the case examiners, to give them the context of the case. The original decision will not influence the fresh decision. The case examiners will consider the case as if there has been no previous consideration.

What happens when only part of a decision is returned for a fresh decision?

If we decide a fresh decision is necessary for part of a decision (but not all of it), the case examiners must not change the rest of the original decision.

The information we provide to the case examiners will make clear (both of the following):

• which parts of the original decision require a fresh decision
• which parts of the original decision will remain in place

If you are unhappy with the outcome

We consider all applications we receive for a review of a case examiner decision under rule 12G carefully and impartially. We will communicate any decisions we make during the review process in writing, with clear supporting reasons.

In some cases, you may be unhappy with our decision. This may be our decision to not conduct a review of the case examiner decision (stage 1), or our decision that the case examiner decision should remain in place and not be referred back to the case examiners for a fresh decision (stage 2). The only way to challenge this is by a legal process called ‘judicial review’. There is no further remedy available through our legal framework.

You may wish to seek legal advice (or advice from your union if applicable) before you pursue this option. There are very stringent rules governing this process, including strict time limits.

You can find further information on challenging a fitness to practise decision on our challenging a fitness to practise decision page.

Examples of where part of a decision may be referred back to the case examiners

Example 1

A case consisted of 4 regulatory concerns.

The original case examiner decision referred regulatory concerns 1 and 2 through to the adjudicators. The remaining regulatory concerns (3 and 4) were closed.

Someone makes an application to review the regulatory concerns which were closed (3 and 4). We make a rule 12G decision that a fresh decision is necessary for these concerns, and send them back to the case examiners.

The case examiners’ original decision on regulatory concerns 1 and 2 will remain in place. The case examiners will then make a fresh decision on regulatory concerns 3 and 4. When making a decision on impairment and the outcome of the case, they will take into consideration the original decision about regulatory concerns 1 and 2.

Example 2

A case examiner decision closes two regulatory concerns. After review, we decide that a fresh decision is necessary in respect of only one of the regulatory concerns (concern 1). We revoke the case examiner decision on concern 1, and refer it back to the case examiners for a fresh decision. The original decision in respect of the other regulatory concern (concern 2) will still stand and will remain closed.

Example 3

During a case, a social worker makes admissions to the regulatory concerns. The case examiners agree to an accepted disposal of a conditions of practice order.

However, the complainant makes an application to review the decision to impose a conditions of practise order. They say there is new information that would change that decision.

We make a rule 12G decision that a fresh decision is necessary, because there is new information. This new information could change (both of the following):

• the case examiners’ decision on impairment
• the outcome of the case

A fresh decision will only be required on those parts of the decision. This means the original decision on facts will remain in place. However, the case examiners will need to reconsider impairment.

If they find that there is a realistic prospect that the social worker’s fitness to practise would be found impaired at a hearing, they will need to consider (doing either of the following):

• proposing an accepted disposal (this may be the same type of final order, or a different final order, to that proposed by the original case examiners)
• referring the case to the adjudicators