For social workers already in receipt of a Fitness to Practise notification letter from Social Work England (“SWE”), the next step in the process; aside from potentially being referred to an Interim Orders Hearing (see here: https://www.mysocialworknews.com/article/help-i-ve-been-referred-for-an-interim-order-what-does-this-mean) is receiving the case investigation report and bundle of accompanying documents from SWE. Once in receipt of these documents a social worker will, for the first time, be informed of SWE’s full case against them and have the opportunity to respond to the allegations and where relevant, comment on the evidence.
Why Is This Stage Important?
This stage of the Fitness to Practise (“FTP”) process is incredibly important as a social worker will finally understand SWE’s full case and is able to present their case to the Case Examiners along with supporting evidence. In doing so, a social worker can potentially have their case closed down at the Case Examiners stage and a social worker should make the most of this opportunity, subject to any pertinent legal advice received, and not ignore this stage of the process or believe their comments will not make a difference. This is definitely not the case and cases can and are closed at the Case Examiners stage.
Naturally, legal representation can assist at this stage of the process to effectively present arguments to SWE on robustness of evidence, case law on relevant thresholds, and any relevant personal mitigatory evidence. Legal representation can take the form of representations being written by a lawyer, advice sought solely on SWE’s evidence or a lawyer reviewing and supplementing a social worker’s response.
What Is The Role Of The Case Examiners?
The Case Examiners consist of a lay person (non-social worker) and a SWE registered social worker. Together, they consider SWE’s case investigation report and documents in conjunction with the social worker’s response and documents and decide how to dispose of the FTP case. The Case Examiners, having considered all information presented to them can:
- Close the case with no further action.
- Refer the case to a hearing.
- Close the case via the accepted disposal route instead of a hearing (see below).
- Adjourn consideration of the case to obtain further information.
In order to reach a decision, the Case Examiners will apply the ‘realistic prospect’ test e.g. is there a realistic prospect, based on the documents before them, that the facts would be found proven by the Adjudicators at a hearing and the social worker’s FTP found to be impaired. If the answer to this question is ‘yes’, and a hearing is deemed in the public interest, the matter will be referred to a hearing. If, however, a hearing is not deemed in the public interest, the accepted disposal route will be considered and raised with the social worker (as their consent is required).
Accepted disposal is the means of disposing of a case without a hearing however the social worker must accept that their FTP is impaired and the sanction proposed by SWE. Given the enormity of what they are consenting to, legal advice, where able, should be obtained so that a social worker can fully understand the associated implications.
Where a social worker disputes the facts of the case or refuses to consent to the accepted disposal process, which is the social worker’s prerogative, the case will be referred to a hearing before the Adjudicators either in person, virtually or by means of a hybrid hearing.
How Should A Social Worker Respond To The Case Examiners?
Whilst each case turns on its own particular set of facts, a general rule of thumb for responding to the Case examiners is as follows:
- Read all the documentation provided by SWE in full before beginning to draft a response and note (and adhere to) the deadline cited.
- In connection with every allegation raised, clearly state whether the allegation is admitted or denied and provide an explanation where relevant and/or supporting documentation.
- If SWE have included factually incorrect information in the report or document bundle, do not be afraid to bring this to their attention along with information which demonstrates why it is factually incorrect.
- Remain polite and professional in all responses to SWE remembering that a social worker’s response to the Case Examiners will most likely be placed before the Adjudicators at a hearing, where referred, and to prevent further allegations being raised against them. Of note, SWE like other regulators can raise additional allegations against a registrant for aggressive or abusive behavior displayed in correspondence with the regulator.
- Take the time to draft a full, accurate response to the Case Examiners bearing in mind this response will form the basis of a social worker’s case at any future hearing before the Adjudicators.
- Ensure the response is well-written, with relevant headings where needed and proof read for spelling errors. Case Examiners will be assisted in their reading and understanding of a social worker’s case by a well-written response with no ambiguity. Any ambiguity could be the difference between a case being referred on to a hearing/consensual disposal as opposed to being closed down by the Case Examiners.
- Where providing testimonials or references from employer(s), colleagues or others, ensure the person writing the reference/testimonial has seen the allegations and confirms as such in the reference.
- Note that a social worker’s response will most likely be provided to the complainant. Where a social worker wishes to include personal or confidential information within their response, they should mark the document/relevant parts accordingly and request this information be kept confidential and not provided to the complainant.
- Before sending to SWE, ensure the response contains the correct reference and the response is sent to the correct email address – all of which will be provided to the social worker by SWE.
What Happens Next?
Once a social worker’s response has been received, it will be provided to the Case Examiners and the Case Examiners will consider this information, alongside SWE’s information, and make their decision within 4-6-weeks. Once a decision has been made by the Case Examiners, a written decision will be provided to the social worker. This decision will be detailed in content and will set out the Case Examiners decision and the reason(s) for their decision.
Where a social worker believes the Case Examiners decision to be materially flawed or there is new information which may have led to a different decision being made, which is necessary to be rectified to prevent injustice being caused to the social worker, a request for a review of the Case Examiners decision can be made to SWE. Before making such a request however, and where possible, legal advice should be obtained to understand and assess the merits of requesting a decision review.
Nicola Wheater is a solicitor at Ridouts Professional Services Limited (“Ridouts”). Ridouts assist social workers, and other registered healthcare practitioners in responding to the Case Examiners and Fitness to Practise matters in general. Nicola can be contacted on nicola@ridout-law.com or 0207 317 0340 for a confidential discussion and fee quotation.
