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

Last updated: 16 December 2022

Contents

• About this guidance
• Service of notice
• Notice periods for different hearings and meetings
• Proceeding in the absence of the social worker
• Drawing adverse inferences from the social worker's absence

About this guidance

This guidance is for:

• adjudicators
• legal advisers
• social workers and their representatives
• Social Work England’s advocate
• Social Work England’s hearings team

It sets out:

• the provisions for serving social workers with notices of hearings
• when the adjudicators can proceed with a hearing in the absence of the social worker
• when the adjudicators can draw adverse inferences from the social worker’s absence

Service of notice

We will notify the social worker of when, where and at what time a hearing is going to take place.

When serving notices of hearings, we must prove that we have sent the relevant notice to the contact email or postal address which the social worker has provided to us.[1]

The obligation is on the social worker to keep their contact details up to date. We do not have to prove that the social worker has received the notice.

For this reason, it’s extremely important that the social worker makes sure that we always have their current email and postal address, so we can contact them. [2] They can do this through their online account.

If the social worker cannot use their online account, they must contact their fitness to practise case holder or the registrations team to make sure contact details are up to date.

[note 1] Rule 44(b) Fitness to Practise Rules 2019 (as amended)

[note 2] Regulation 16(1) of The Social Workers Regulations 2018 (as amended) sets out a requirement for the social worker to inform the regulator as soon as practicable if they become aware that any information registered in relation to them ceases to be accurate. This general professional requirement was also confirmed by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162

Notice periods for different hearings and meetings

Final fitness to practise hearings

Social Work England will provide the social worker with notice [3] of the (all of the following):

• date
• time
• place

of the hearing.

In addition to this information, Social Work England will also provide a statement of case to the social worker. This will set out (all of the following):

• matters agreed (or not agreed) between the social worker and Social Work England
• the basis for Social Work England alleging impairment of fitness to practise

For most final fitness to practise hearings, the notice period will be not less than 28 calendar days before the start of the hearing. This is unless the social worker consents to a shorter period [4].

In some instances, a case may relate to a concern under paragraph 1(2) of schedule 2 of the Social Workers Regulations 2018 (as amended). If so, the notice period may be not less than 14 calendar days [5]. This includes cases where:

• the social worker has been convicted of an offence where a custodial sentence has been imposed (other than a listed offence) [6]
• the social worker has been convicted of a listed offence (which was committed before 2 December 2019)

[note 3] Rule 15 – Fitness to Practise Rules 2019 (as amended)

[note 4] Rule 14(a) – Fitness to Practise Rules 2019 (as amended)

[note 5] Rule 14(b) – Fitness to Practise Rules 2019 (as amended)

[note 6] Schedule 3 – The Social Workers Regulations 2018 (as amended) sets out the offences which are ‘listed offences’.

Interim order applications

Social Work England will provide the social worker with notice of the (all of the following):

• date
• time
• place

of the hearing or meeting on which the adjudicators intend to consider making the order.

The notice must include the date by which the social worker must (do one or both of the following):

• make written submissions
• state that they intend to attend the hearing or meeting and make oral submissions [7].

This date must be not less than 7 calendar days after notice has been deemed served. This is unless (in the opinion of the regulator) a shorter time period is necessary to protect the public [8]. In some cases, they may consider the risk so serious that they need to hear the interim order application at the earliest opportunity. They will do this if the risk posed to the public outweighs the social worker’s interest in having 7 calendar days’ notice. For example, if the social worker has been charged with a serious criminal offence.

Where an urgent interim order application is necessary, the adjudicators should give the social worker as much notice as is reasonably possible.

[note 7] Rule 13(a) – Fitness to Practise Rules 2019 (as amended)

[note 8] Rule 13(b) – Fitness to Practise Rules 2019 (as amended)

Interim order reviews

Social Work England is required to review interim orders every 6 months [9]. It is in both the public interest and the social worker’s interest that we do these reviews within the statutory review periods.

Social Work England will issue the notice for an interim order review hearing or meeting. The notice for review of interim order must advise of the date (both of the following):

• on which we propose to review the order (not less than 7 calendar days before the date of the hearing or meeting)
• by which the social worker must make any written submissions, or state whether they wish to attend or be represented to make oral submissions [10] (not less than 7 calendar days after Social Work England has informed the social worker of the date of the hearing or meeting)

Social Work England may reduce either or both of these time periods if we deem a shorter period is necessary to protect the public or is in the public interest [11].

Social Work England will usually aim to provide notice of the date of the review more than 7 calendar days before when the review is due to take place. However, we may reduce the notice period in certain circumstances.

The circumstances that may mean a shorter period is necessary will be specific to the case at hand. Examples of circumstances which may warrant a shorter notice period include (any of the following):

• where new information has become available which suggests the interim order in place is no longer effectively protecting the public. This would mean there is a public protection risk if we do not immediately review the interim order. For example, if a social worker is not complying with an interim conditions of practice order. In this case, it may be necessary for the adjudicators to impose an interim suspension order to protect the public.
• where new information has become available which suggests the interim order in place may no longer be necessary. In this case, it would be in the public and social worker’s interests for us to review the order as soon as possible.
• where a postponement of an interim order review has been granted, a 7 calendar days’ notice period may no longer be possible if the order is to be reviewed within the required statutory review period. It would be in the public interest and the social worker’s interest to ensure the review takes place within the statutory review period. This is because the nature of the order (and its impact on a social worker) means that it must be reviewed every 6 months to ensure it remains necessary.

[note 9] Regulation 14(1)(a) and (b) of The Social Workers Regulations 2018 (as amended)

[note 10] Rule 16(a) – Fitness to Practise Rules 2019 (as amended)

[note 11] Rule 16(ab) and 16(b) – Fitness to Practise Rules 2019 (as amended)

Final order reviews

Social Work England must review a final order of suspension or conditions of practice before its expiry date . In the event that the review does not take place, the order will lapse at its expiry date [12]. This potentially leaves the public at risk. For example, if the social worker has not taken action to remediate their conduct since the final order was imposed. It is essential that we do these reviews before the expiry date of the order. This ensures that the adjudicators can make an assessment as to whether the social worker’s fitness to practise remains impaired. They can then determine whether restrictions on the social worker’s practice are still required.

Social Work England must inform the social worker of the date (both of the following):

• on which we propose to review the order (not less than 28 calendar days before the date of the hearing or meeting) [13]
• by which the social worker must make any written submissions or state whether they wish to attend or be represented to make oral submissions (not less than 7 calendar days after Social Work England has informed the social worker of the date of the hearing or meeting [14]

Social Work England may reduce either or both of these time periods if we deem a shorter period is necessary to protect the public or is in the public interest [15].

Social Work England will aim to hold the review hearing or meeting at least 28 days before the date the final order is due to expire. The outcome of the review of the final order will take effect after the expiry of the previous order.

Social Work England will also aim to provide notice of the date of the review more than 28 calendar days’ before the review is due to take place. However, we may reduce the period in certain circumstances.

The circumstances that may necessitate a shorter period will be specific to the case at hand. For example (any of the following):

• where new information has become available after notice has been issued that may suggest that the final order currently in place is no longer protecting the public. This means we may need to issue a new notice of hearing for an earlier review date as there could be a public protection risk. For example, where we have issued notice but new information indicates the risk has increased and the hearing needs to be heard much sooner. We might need to issue a new notice with a shorter notice period in order to bring the review date forward.
• where compliance with the usual notice period is no longer possible. For instance, if a postponement has been granted (by us or by the adjudicators) or we have made an administrative error. Ensuring the review takes place before the order expires would be necessary for the protection of the public, as well as in the public interest. If the order lapses, the social worker would be free to practise without restriction, before the adjudicators have reassessed their fitness to practise.

[note 12] Regulation 15(1) of The Social Workers Regulations 2018 (as amended)

[note 13] Rule 16(a)(i) and 16(ac) – Fitness to Practise Rules 2019 (as amended)

[note 14] Rule 16(a)(ii) and 16(b) – Fitness to Practise Rules 2019 (as amended)

[note 15] Rule 16(ab) and 16(b) – Fitness to Practise Rules 2019 (as amended)

Where we send the notice

Social workers can be sent notice through their secure online accounts. When this happens, social workers get an email that there is a new message in their online account. They can then log in to their online account to view the message confidentially. In order to use this method of service, social workers need to agree to us using their online account as the primary way to contact them and therefore, it may not be suitable for all cases.

If we cannot send the notice to the social worker’s online account, we will send it [16] (one of the following):

• to an email address provided by the social worker to the regulator
• by courier, next day delivery service or first class post to an address provided by the social worker to the regulator
• by next day delivery service, ordinary first class post or email to the address of the social worker’s representative
• by personal service on the registered social worker or their representative

[note 16] Rule 44, Fitness to Practise Rules 2019 (as amended)

How we will prove that we have served the notice

The way in which we will prove that we have given a social worker notice depends on how it was served. [17]

When we send a notice through the social worker’s online account, we will prove it with a (both of the following):

• signed statement from the person who placed the notice on the online account
• a certified copy of a message sent by email to the social worker informing them of the placement of the notice or communication on their online account

For notices sent by email, we will prove it with a signed statement from the person sending the notice.

For notices sent by post or delivery/courier service, we will prove it with (one of the following):

• a signed statement from the person sending the notice
• confirmation of posting or sending from the postal service or delivery/courier service used to deliver the notice

For notices that have been personally served on the social worker or their representative, we will prove it with a signed statement from the person who effected personal service.

[note 17] Rule 44(b), Fitness to Practise Rules 2019 (as amended)

Calculating the date a notice was served

We calculate the date a notice is deemed to have been served [18] as (one of the following):

• the day an email is sent to the social worker to tell them that there is a message for them on the online account (if the notice was sent through the online account)
• the day the email was sent (if the notice was sent by email)
• the day after the notice was sent (if the notice was sent by next-day delivery service or courier)
• two days after the notice was sent (if the notice was sent by first class ordinary post)
• the day notice was served (if the notice was personally served)

This applies where (both of the following):

• we send a notice to the social worker directly
• the social worker has nominated a representative to accept notices on their behalf [19]

[note 18] Rule 45 Fitness to Practise Rules 2019 (as amended)

[note 19] Rule 46(a) Fitness to Practise Rules 2019 (as amended) 

Proceeding in the absence of the social worker

Rule 43 of the Fitness to Practise Rules 2019 (as amended) allows the adjudicators to proceed in the absence of a social worker, including in circumstances where the social worker has previously indicated they wished to attend.

If the social worker does not attend the hearing and is not represented, the adjudicators must decide whether (both of the following):

• the notice of hearing was properly served or all reasonable efforts were made to serve the social worker with notice
• to proceed with the hearing in the absence of the social worker

When deciding whether to proceed in the absence of the social worker, they should (both of the following):

• consider all the circumstances of which the adjudicators are aware
• balance the fairness of the social worker with that of Social Work England and the interests of the public

Cases where the social worker has requested a hearing

We must ask the social worker whether they want to request a hearing for (both of the following):

• final order review hearings
• interim order applications and review hearings

If the social worker requests a hearing but does not attend, the adjudicators can decide whether to proceed in the absence of the social worker as long as (one of the following):

• they are satisfied that the social worker has been served with notice
• all reasonable efforts have been made to serve the social worker with notice of the hearing in accordance with the rules

Adjudicators should still apply the factors set out in the next section before deciding whether to proceed in absence.

The adjudicators might adjourn the proceedings briefly so we can call or email the social worker (or their representative) if they have (one or both of the following):

• previously indicated that they want to attend the hearing
• requested the hearing themselves

This is to allow for any unforeseen incapacity that may have prevented the social worker from attending the hearing.

Considerations for the adjudicators when deciding whether to proceed

The adjudicators must provide reasons for any decision to proceed in absence.

The adjudicators should also be mindful that in circumstances where the hearing goes ahead in the absence of the social worker, they must still ensure the hearing is fair.

Where a social worker is absent, the legal adviser has a responsibility to advise the adjudicators on the need to explore any weaknesses in the case put forward by Social Work England and identify any points which may be of assistance to the absent social worker. [20]

In terms of the relevant factors to be taken into account, in the case of GMC v Adeogba [2016] EWCA Civ 162 [21] the Court of Appeal confirmed that the principles set out in R v Jones [2002] UKHL 5, provide a helpful starting point in determining whether the discretion to proceed in absence should be exercised. The Court of Appeal did however acknowledge that the Jones case concerned a decision to proceed with a criminal trial, and indicated that the decision to proceed with a regulatory hearing must be guided by the regulator’s main statutory objective. Social Work England’s overriding objective is the protection of the public.

The adjudicators should consider the following factors when deciding whether to proceed in the absence of the social worker.

[20] Compton v General Medical Council [2008] EWHC 2868; McDaid v Nursing and Midwifery Council [2013] EWHC 586 (Admin)

[21] The factors in Adeogba were also recently endorsed in Sanusi v GMC [2019] EWCA Civ 1172

Service of notice

The adjudicators must consider whether all reasonable efforts have been taken to serve the social worker with notice. They should bear in mind that social workers are required to keep the register up to date with their contact details.

As a result, the fact that a social worker has not updated their contact details on the register is not a reasonable explanation for failure to participate in the process. It is also not sufficient to require the adjudicators to adjourn a fitness to practise hearing even if they may be aware the social worker is no longer at their registered address. [22]

[note 22] In Jatta v NMC [2009] EWCA Civ 824 the court held that a panel is entitled to proceed in the absence of a registrant even if the panel may be aware the social worker is no longer at their registered address but has not provided revised contact details and the panel knows that the notice may not have come to their attention.

Fairness

Deciding to proceed in the absence of the social worker should be exercised with caution. The adjudicators should consider the fairness of any decision to proceed or not proceed taking into account the interests of:

• the social worker
• Social Work England
• the public

Public protection

The decision about whether to proceed must be guided by our primary objective to protect the public.

Social workers have a responsibility to engage with us in response to concerns about their fitness to practise [23]. Social workers accept this responsibility when they are registered.

[note 23] Social Work England’s Professional Standard 6.7 - ‘As a social worker, I will cooperate with any investigations by my employer, Social Work England, or another agency, into my fitness to practise or the fitness to practise of others.’

Why the social worker is absent

Adjudicators should consider the nature and circumstances of the social workers absence, in particular whether the behaviour may be deliberate and voluntary.

The adjudicators might consider that it is not appropriate to proceed with a hearing if (both of the following):

• they have independent evidence that the social worker is involuntarily absent, for example through incapacity
• the social worker otherwise intended to attend the hearing

Adjournments

Any ‘culture’ of adjournment is to be discouraged. It goes against the efficient disposal of cases. Organising another hearing is:

• inconvenient
• costly to all parties
• disruptive to witnesses, the adjudicators, legal advisers, staff, and facilities

The seriousness of the concern

Adjudicators should note that the seriousness of the fitness to practise concern is not a relevant factor in deciding whether to proceed in absence [24]. However, the adjudicators should consider the extent to which the social worker may be disadvantaged by not being able to give their account of events. This includes having regard to the nature of the evidence. If the social worker has already participated to some extent, this may reduce their disadvantage. For example, if they have previously provided a detailed written response to the concerns. They may also have participated in an investigation at a local level.

[24] R v Jones [2002] UKHL 5 - Lord Bingham at (at [14]): "I do not think that "the seriousness of the offence, which affects defendant, victim and public"… is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor." This was confirmed in GMC v Adeogba [2016] EWCA Civ 162

Interim order hearings

The adjudicators must consider different issues when they decide whether to proceed in the absence of a social worker for interim order hearings. This is because the adjudicators must conduct an immediate risk assessment at interim order proceedings (rather than consider formal findings of fact).

We will only apply for an interim order when we think restrictions on a social worker’s practice may be:

• necessary for the protection of the public
• in the best interests of the social worker

We refer a case for interim order consideration as soon as possible to ensure that we are effectively fulfilling our objective to protect the public.

However, the adjudicators must still be satisfied that all reasonable efforts have been made to serve notice of the hearing to the social worker (or their representative).

If the social worker has informed us that they do not want to attend the hearing, the adjudicators should proceed.

The adjudicators should still consider going ahead with the hearing if the social worker has indicated that they are unable to attend because they need more time to:

• secure representation
• prepare for the hearing

This is because of the urgent nature of the application and the risks that have been identified.

The potential unfairness to the social worker of going ahead in these circumstances is arguably mitigated by the fact that social workers can:

• seek an early review of an interim order (if new evidence becomes available)
• attend and engage in any future mandatory reviews of the interim order (where they can seek to have the order revoked or changed)

Early review hearings

Some early review hearings are scheduled because we have received new evidence which suggests that we need to make changes to an existing order to ensure public protection.

This decision might be to (one of the following):

• change the content of an interim order for conditions of practice, or replace it with suspension order (or vice versa)
• change the content of a final order for conditions of practice, or replace it with a suspension order (or vice versa)
• revoke the interim or final order

As set out above, any potential unfairness to the social worker in proceeding in absence is arguably mitigated by the opportunity for the social worker to seek an early review of any order imposed, including an interim order or a final order, if new evidence becomes available.

Drawing adverse inferences from the social worker's absence

The adjudicators can draw an adverse inference that a social worker who fails to attend a hearing has no innocent explanation for some or all of the facts alleged against them [25] if:

• a prima facie case has been established - this means that Social Work England has presented sufficient evidence to establish the facts
• the social worker has:
• i. been warned of the possibility of an adverse inference being drawn from them not attending the hearing (a letter sent to the social worker in advance of the hearing will usually be sufficient)
• ii. been given an opportunity to attend or explain why it would not be reasonable for them to do so (a valid proof of service of the notice of hearing will usually be sufficient to demonstrate this)
• there is no reasonable explanation for the social worker not attending the hearing (if the social worker does not provide a reasonable explanation to the adjudicators they should not speculate as to any possible reasonable explanation)
• if there are any other circumstances in the case that would make it unfair to draw an adverse inference from the social worker not attending, for example if the social worker is not able to attend due to a health condition

If the adjudicators decide to draw an adverse inference from the social workers failure to attend the hearing, they should make it clear in their decision on the facts (both of the following):

• what adverse inference has been drawn
• why they have drawn this adverse inference

[note 25] Kearsey v NMC [2016] EWHC 1603 (Admin); Wiszniewski v Central Manchester Health Authority [1997] P.I.Q.R P324