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Service of notices and proceeding in the absence of the social worker

This guidance is for adjudicators, social workers and representatives about the provisions for serving social workers with notices of hearings and the circumstances in which the panel may proceed with a hearing in the absence of the social worker.

Guidance on service of notices and proceeding in the absence of the social worker

Last updated: 5 December 2019


About this guidance

This guidance is for adjudicators (the panel), social workers and representatives about:

  • the provisions for serving social workers with notices of hearings
  • the circumstances in which the panel may proceed with a hearing in the absence of the social worker

Service of notice

Social workers must maintain an effective address by which Social Work England can contact them (Regulation 16(1) Social Workers Regulations 2018). When serving notices of hearings, the requirement on Social Work England is that it can demonstrate that it has sent the relevant notice to the address the social worker has submitted as usable (rule 45 fitness to practise rules 2019), rather than that it has been received. For this reason, it’s extremely important that social workers keep their postal and electronic addresses up to date.

Where Social Work England is aware that the address that the social worker has submitted is incorrect or that the social worker has moved address, all reasonable efforts must also be made to serve notice.

Furthermore, Social Work England’s responsibility is to serve or to make all reasonable efforts to serve notice on the registrant (GMC v Adeogba [2016] EWCA Civ 162 para 23); in most cases this will be no more than to communicate with the social worker at the address they have provided (Adeogba paragraph 59).

Social Work England has set up a secure online account through which to send communications to registered social workers. Social Work England will tell social workers via their effective email address when a communication has been placed on the online account, which they can then access confidentially. This is the most convenient and reliable means of communication, and social workers are strongly recommended to agree to the portal being the primary means of contacting them.

If a social worker does not want to use the online account, they must provide Social Work England with an effective postal address to which correspondence can be sent. Notices of hearings will be served through the online account or, where the social worker has requested, by next day delivery service or by first class post (rule 44, fitness to practise rules 2019).

The date on which service is deemed to have been effected is set out at rule 45 of the fitness to practise rules 2019. In summary:

  • If the notice has been placed on the portal, the day an email is sent to the social worker to tell them that there is a communication for them on the portal
  • If the notice has been sent by next-day delivery service, the next working day after the notice was sent out
  • If the notice has been sent by first class post, 2 working days after the notice was sent out.

Proof of service

As noted above, Social Work England must show that it has served the social worker with notice of the hearing. This can be proved in the following ways (rule 44(b), fitness to practise rules 2019):

  • If the notice is sent through the portal, a signed statement from the person who placed the notice on the portal and a certified copy of the email sent to the social worker informing them that the notice has been placed on the portal.
  • If the notice is sent by next-day delivery service, confirmation of posting by the postal service used to deliver the notice.
  • If the notice is sent by first class post, a signed statement from the member of staff who has posted the notice.

Proceeding in the absence of the social worker

If the panel has decided the notice of hearing has been properly served, and the social worker does not attend the hearing and is not represented, the panel must decide whether or not to proceed with the hearing in the absence of the social worker.

However, before doing so, the panel might wish to adjourn briefly to allow an attempt to be made to contact the social worker or their representative by telephone or email.

This is for them to explore whether unforeseen incapacity has prevented the social worker from attending the hearing they requested The Court of Appeal in Adeogba has clarified the relevant factors to be considered in whether to proceed in a practitioner’s absence. The factors were endorsed in Sanusi v GMC[2019] EWCA Civ 1172, and include:

  • Discretion to continue in the absence of the social worker should be exercised with great caution and with close regard to the fairness of the proceedings
  • The decision about whether or not to proceed must be guided by Social Work England’s primary objective of protecting of the public. Fairness to the social worker is very important, but so is fairness to Social Work England and the public.
  • Whether all reasonable efforts have been taken to service the social worker with notice, bearing in mind that social workers are required to provide Social Work England with their correct contact details. As a result, the fact that a social worker has not updated their contact details with Social Work England is unlikely to provide a reasonable explanation for failure to participate in the process, sufficient to require the adjudicators to adjourn consideration of a fixed disciplinary hearing.
  • Social workers have a responsibility to engage with Social Work England in response to concerns about their fitness to practise. Social workers accept this responsibility when they are registered
  • Panels should not proceed with a substantive fitness to practise hearing if they have evidence that the social worker is involuntarily absent, for example through incapacity, unless the social worker has stated that they are content for the hearing to go ahead in their absence
  • Any ‘culture’ of adjournment is discouraged. It goes against the efficient disposal of the case—organising another hearing is inconvenient and disruptive to witnesses, panels, legal assessors, staff, and facilities.
  • The seriousness of the fitness to practise concern is not a relevant factor in deciding whether to proceed in absence.
  • If a social worker is absent and the hearing proceeds, the decisions of the panel at each stage should be communicated to the social worker. There is no requirement to adjourn after each decision to see if the social worker then wishes to take part in the hearing.

Drawing adverse inferences from the social worker’s absence

If the panel decides to proceed in the absence of the social worker, it should address what inferences to draw from the non-engagement of the social worker. In Kuzmin v GMC [[2019] EWCA 2129 Admin], it was ruled that a panel may draw adverse inferences if a registrant declines to give evidence.

This reflects the burden on regulated professionals to assist with the resolution of concerns raised against them. However, before drawing an adverse inference from silence, the panel should first:

  • Determine that a prima facie case has been established
  • Make sure the social worker has: i. been warned of the possibility of adverse inference being drawn from them not giving evidence, and an opportunity offered to explain why it would not be reasonable for them to give evidence, and if there is no reasonable explanation and ii. been given an opportunity to give evidence
  • Determine if there is a reasonable explanation for the social worker not giving evidence
  • Determine if there are any other circumstances in the case that would make it unfair to draw an adverse inference from the social worker not giving evidence

Even if the panel finds it reasonable for the social worker not to give evidence, they are allowed to consider the impact on evidence about, for example, insight and remediation when determining impairment and sanction.

Evidence about insight and remediation given only in writing may carry less weight than if the panel has had the opportunity to hear the social worker and to test their credibility on these issues. For more information, see Henderson v General Teaching Council for England [2012] EWHC 826 (Admin) .

For all of the above reasons, social workers are strongly advised to give evidence at hearings once a prima facie case against them has been established.

Cases where the social worker requested a hearing

In fitness to practise review hearings and interim order hearings, Social Work England must ask the social worker whether they wish to appear before the panel and be represented in order to make oral submissions.

If the social worker does not request a hearing, the matter may be determined at a meeting (rules 13(c) and 16(c) fitness to practise rules).

If the social worker has requested a hearing but does not then attend and is not represented, the panel should apply the factors above before deciding whether to proceed in absence.

However, before doing so, the panel might wish to adjourn briefly to allow an attempt to be made to contact the social worker or their representative by telephone or email.

This is for them to explore whether unforeseen incapacity has prevented the social worker from attending the hearing they requested. Some early review or interim orders hearings are scheduled because an immediate possible risk to public safety has been identified.

In these cases, it’s necessary for a panel to make a decision about whether to impose, or change, restrictions on a social worker’s practice. This decision might be to impose an interim order for the first time, to change an interim order for conditions or to replace it with suspension, or to change a final order of conditions or replace it with suspension.

In these cases, it’s very important to hear the case as soon as is reasonably practical to uphold our over-arching objective to protect the public (Section 37(1) Children and Social Worker Act 2017).

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