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

Information about how to raise a concern about a social worker and how we deal with concerns. 

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

Last updated: 19 April 2022


About this guidance

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

It sets out:

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

Service of notice

Adjudicators must notify the social worker of a hearing at least 28 calendar days before the hearing (unless they agree to a shorter period). There are some cases where the notice period may be shorter, such as some types of conviction cases [note 1].

The notice of hearing must include (both of the following):

  • the date, time and place of the hearing
  • a statement of case

When serving notices of hearings, we must prove that we have sent the relevant notice to the contact address which the social worker has provided to us [note 2].

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 [note 3]. They can do this through their online account.

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

Where we send the notice

We prefer to send all communications to social workers 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.

This is the safest and most reliable means of communication. We strongly recommend that social workers agree to us using their online account as the primary way to contact them.

If we cannot send the notice to the social worker’s online account, we will send it [note 4] (one of the following):

  • to an email address provided by the social worker
  • by next day delivery service or first class post using the social worker’s postal address as recorded on our register (if the social worker has requested this in advance)
  • by next day delivery service, ordinary first class post or email to the address of the social worker’s representative (who has been nominated by the social worker to accept service on their behalf)

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 [note 5].

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 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 service used to deliver the notice

Calculating the date a notice was served

We calculate the date a notice is deemed to have been served [note 6] 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 out (if the notice was sent by next-day delivery service)
  • two days after the notice was sent out (if the notice was sent by first class ordinary post)

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 [note 7]

Notes

  • [note 1] Rule 14(b) Fitness to Practise Rules 2019 (as amended)
  • [note 2] Rule 44(b) Fitness to Practise Rules 2019 (as amended)
  • [note 3] Regulation 16(1) Social Workers Regulations 2018 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. Contact information of the social worker is currently recorded on back end register. This general professional requirement was also confirmed by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162
  • [note 4] Rule 44, Fitness to Practise Rules 2019 (as amended)
  • [note 5] Rule 44(b), Fitness to Practise Rules 2019 (as amended)
  • [note 6] Rule 45 Fitness to Practise Rules 2019 (as amended)
  • [note 7] 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.

If the social worker does not attend the hearing and is not represented, the panel 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 panel is 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):

  • fitness to practise final order review hearings
  • interim order 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 panel might adjourn 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.

The role of the legal adviser is particularly important here and they should consider taking reasonable steps to test Social Work England's case on behalf of the social worker.

In terms of the relevant factors to be taken into account, in the case of GMC v Adeogba [2016] EWCA Civ 162 [note 8] the Court of Appeal confirmed the principles set out in R v Jones [2002] UKHL 5.

This has provided further clarification of the relevant factors that adjudicators should consider when deciding whether to proceed in the absence of the social worker.

Fairness

Deciding to proceed in the absence of the social worker should be exercised with caution. The adjudicators should give prime consideration to the fairness to 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.

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 our 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 consideration of a fitness to practise hearing even if they may be aware the social worker is no longer at their registered address [note 9].

Social workers have a responsibility to engage with us in response to concerns about their fitness to practise [note 10]. Social workers accept this responsibility when they are registered.

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.

Panels should not 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 the case. Organising another hearing is:

  • inconvenient
  • costly to all parties
  • disruptive to witnesses, panels, 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 [note 11]. 

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 panel 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 panel 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 panel should proceed.

The panel 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
  • change the content of a final order for conditions of practice, or replace it with a suspension 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.

Notes 

  • [note 8] The factors in Adeogba were also recently endorsed in Sanusi v GMC [2019] EWCA Civ 1172
  • [note 9] 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.
  • [note 10] 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.’
  • [note 11] 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

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 [note 12] 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:
    1. 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)
    2. 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 panel 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:

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

Notes

  • [note 12] Kearsey v NMC [2016] EWHC 1603 (Admin); Wiszniewski v Central Manchester Health Authority [1997] P.I.Q.R P324
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