Briefing note – The Social Workers (Amendment and Transitional Provision) Regulations 2022
Briefing note – The Social Workers (Amendment and Transitional Provision) Regulations 2022
First published: 16 December 2022
Introduction
The first 2 years of our regulation have involved a period of intense activity in unexpectedly challenging circumstances. In this time, we have:
- learned and reflected on our work
- tested our legislative framework
- collated learning where it relates to our regulations and rules
Between 23 March and 11 May 2022, the Department for Education consulted on a number of proposed changes to the Social Workers Regulations 2018 (“the 2018 Regulations”). The consultation proposed amendments which would (do all of the following):
- give greater clarity to the Social Work England’s processes
- remove operational inefficiencies
- correct unintended anomalies in the original drafting
The Social Workers (Amendment and Transitional Provision) Regulations 2022 (“the Amendment Regulations”) is a legal instrument which will bring the proposed changes into effect. It has now been laid before Parliament and is available on Gov.uk.
The Amendment Regulations are currently due to come into force on 16 December 2022.
As well as setting out the proposed changes to the 2018 Regulations, the Amendment Regulations contain a number of transitional provisions which will facilitate the change from the existing wording of the 2018 Regulations to their amended post 16 December 2022 wording.
The purpose of this note
This briefing note is intended to provide guidance in relation to how each transitional provision will be applied by Social Work England. It is not intended to act as a substitute for the transitional provisions themselves.
If you think that any of the transitional provisions may apply to your circumstances, you should consider the Amendment Regulations in full and seek independent legal advice if necessary.
The transitional provisions
This section will set out (both of the following):
- each transitional provision as it appears in the Amendment Regulations
- how each transitional provision will be applied by Social Work England
Transitional provision 5(1) and (2)
(1) Paragraph (2) applies in relation to a review of a final order which—
(a) is made under paragraph 13 of Schedule 2 to the 2018 Regulations; and
(b) has effect immediately before these Regulations come into force,
where that review takes place after these Regulations come into force.
(2) Paragraph 15(2)(d) of Schedule 2 to the 2018 Regulations (as substituted by paragraph 11(4)(c) of the Schedule to these Regulations) has effect in relation to such a review as if for the words “could have made on the date on which they made the order” there were substituted the words “are able to make”.
This transitional provision relates to paragraph 15(2) of the 2018 Regulations which is the power of the regulator to review final orders 'early' (well ahead of their expiry) when new evidence relevant to the order has become available. We refer colloquially to these provisions as our 'early review powers’.
Why the transitional provision is required
Before 16 December 2022, the case examiners are unable to make removal orders (a type of final order) when disposing of a case with the social worker’s agreement.[1]
After 16 December 2022, the case examiners will be able to make a removal order when disposing of a case with the social worker’s agreement.[2]
An additional amendment [3] will be made to paragraph 15(2)(d) of Schedule 2 of the 2018 Regulations which will say (emphasis added):
(2) The regulator may review a final order where new evidence relevant to the order has become available after the making of the order, or when requested to do so by the social worker, and may—
(d) substitute any order which the adjudicators or the case examiners could have made on the date on which they made the order.
[note 1]: Paragraph 9(3) of Schedule 2 of the Social Workers Regulations 2018
[note 2]: This has been enabled by including a new provision under paragraph 13(2) of Schedule 2 of the Social Workers Regulations 2018 (see paragraph 9 of the schedule to the Social Workers (Amendment and Transitional Provision) Regulations 2022).
[note 3]: By virtue of paragraph 11(4)(c) of the schedule to the Social Workers (Amendment and Transitional Provision) Regulations 2022
As both the adjudicators and case examiners will have the full suite of final orders at their disposal after 16 December 2022, the amended paragraph 15(2)(d) means that the regulator can substitute the original final order for any other final order, including removal orders if (both of the following apply):
- a final order is made by either the adjudicators or the case examiners after 16 December 2022
- it is subsequently reviewed by the regulator under paragraph 15(2)
However, under a strict reading of the amended paragraph 15(2)(d), this would not be the position for orders made before 16 December 2022. This is because paragraph 15(2)(d) refers to orders the case examiners could have made “on the date on which they made the order”. The case examiners did not have the power to make a removal order prior to 16 December 2022. For this reason, under the amended wording of paragraph 15(2), the regulator would not be able to make a removal order if the original final order was made by the case examiners prior to 16 December 2022.
That said, the intention when drafting the Amendment Regulations was for all orders to be captured by the amended paragraph 15(2), including those made prior to 16 December 2022. Transitional provisions 5(1) and (2) have been included to make this clear.
What is the effect of the transitional provision?
Transitional provision 5(1) confirms that the regulator can undertake an early review of a final order made before 16 December 2022 under paragraph 15(2). This will include final orders made by case examiners.
For these cases (ones where the final order was made before 16 December 2022), transitional provision 5(2) has the effect of substituting the amended wording of paragraph 15(2)(d) to say as follows (emphasis added):
(2) The regulator may review a final order where new evidence relevant to the order has become available after the making of the order, or when requested to do so by the social worker, and may—
(d) substitute any order which the adjudicators or the case examiners are able to make
As both the adjudicators and case examiners will have the full suite of final orders available when making a final order after 16 December 2022, the impact of this transitional provision is that the regulator will also have the full suite of final orders available to them when undertaking an early review under paragraph 15(2), including those cases where the original final order was made by case examiners before 16 December 2022.
Transitional provision 5(3)
(3) In paragraphs (4) and (5), “relevant interim order” means an interim suspension order or an interim conditions of practice order made by an adjudicator under paragraph 8(2) or 11(1) of Schedule 2 to the 2018 Regulations on or after 18th November 2022 but before 16 December 2022.
This confirms that the following two transitional provisions, 5(4) and 5(5) (discussed separately below) apply to interim orders that are made within the 28 days before the Amendment Regulations come into force (for example, where interim orders have been made between 18 November and 16 December 2022).
Transitional provision 5(4)
(4) A relevant interim order must be recorded in the register referred to in section 39(1) of the Children and Social Work Act 2017(a) immediately on the coming into force of these regulations.
Why the transitional provision is required
Under section 39(1) of the Children and Social Work Act 2017, Social Work England must keep a register of social workers in England.
Before 16 December 2022, Social Work England was unable to record on the register that an interim order had been made until the 28-day time period in which the social worker could appeal the interim order had passed.[4] This created a risk to public protection as it meant that employers and members of the public could not rely on the public register to check whether a social worker’s practice was restricted. Amendments to the 2018 Regulations make sure that, after 16 December 2022, interim orders can be recorded on the public register immediately after being made.[5]
However, a plain reading of the amendment to paragraph 9 of the 2018 Regulations would not apply retrospectively. This means that, on 16 December 2022, there will be a small number of interim orders made by the adjudicators in the 28 days before the Amendment Regulations come into force that have not been published on the public register (due to the previous requirement to wait 28 days before publishing the same). This means they will not be captured by the new provisions.
[note 4]: Regulation 9(4) of the Social Workers Regulations 2018
[note 5]: See regulation 2(4) of the Social Workers (Amendment and Transitional Provision) Regulations 2022
What is the effect of the transitional provision?
Transitional provision 5(4) confirms that any interim order made between 18 November 2022 and 16 December 2022 (those that fall between the two statutory schemes) will be recorded on the public register on 16 December 2022, regardless of whether 28 days have passed since the order was made.
Transitional provision 5(5)
(5) In so far as paragraph 14(1)(b) of Schedule 2 to the 2018 Regulations (as amended by paragraph 10(2) of the Schedule to these Regulations) applies to a relevant interim order, the period of six months in that paragraph begins on the date on which the relevant interim order was made.
Why the transitional provision is required
Under the current wording of the 2018 Regulations, interim orders are reviewed within 6 months of being made and then every 3 months.[6]
From 16 December 2022, interim orders will be reviewed within 6 months of being made and then every 6 months.[7]
After 16 December 2022, Social Work England will have no mechanism to review interim orders every 3 months. This means that the change to paragraph 14(1)(b) will apply to all interim orders already in place prior to 16 December 2022 (as well as any made after that date) and a transitional provision is not strictly required to bring this into effect.
However, to provide clarity to social workers and others impacted by the interim order review cycles, transitional provision 5(5) was included within the Amendment Regulations. This provision confirms that any interim orders already within the 3-month review cycle on 16 December 2022 will move to the new scheme and will be reviewed every 6 months (rather than every 3 months).
[note 6]: See paragraphs 14(1)(a) and (b) of Schedule 2 of the Social Workers Regulations 2018
[note 7}: See paragraph 10(2) of the schedule to the Social Workers (Amendment and Transitional Provision) Regulations 2022
What is the effect of the transitional provision?
We do not think the intention of this amendment has been fully captured by the wording of transitional provision 5(5) and could be misunderstood for the reasons set out below:
- The "relevant" interim orders captured by transitional provision 5(5) are those made be-tween 18 November and 16th December 2022, rather than any interim order that is within the review cycle when the amendments take effect (as was intended).
- Transitional provision 5(5) refers to the 6-month review cycle beginning from the date the interim order was “made”. However, paragraph 14(1)(a) already provides for the first review of an interim order to take place within 6 months of it being made.
- Paragraph 14(1)(b) (to which transitional provision 5(5) relates) applies only to interim order reviews that take place following the first review at 6 months as noted above (meaning it only applies to second and subsequent reviews). By referring to 6 months from the date the interim order was “made”, transitional provision 5(5) appears to suggest the 6-month review cycle under paragraph 14(1)(b) will apply to the first review of an interim order which is not the correct position (as the first review would be under-taken using paragraph 14(1)(a) rather than 14(1)(b)).
The impact is that transitional provision 5(5) does not properly clarify the practical application of the amendment to paragraph 14(1)(b) as intended. However, we do not consider that the issues with respect to this transitional provision are problematic for allowing all interim orders to enter a 6-month review cycle.
The amendment to paragraph 14(1)(b) will come into force on 16 December 2022 and will apply immediately to all interim orders, including those already in place. This means that any interim order reviews under paragraph 14(1)(b) due to take place after 16 December 2022 (any second and subsequent reviews) will be reviewed at 6 months from the previous review rather than 3 months.
Transitional provision 5(6)
(6) For the purposes of regulation 34(g) of the 2018 Regulations (as amended by regulation 2(8)(b) of these Regulations), a decision under paragraph 15(1) of Schedule 2 to the 2018 Regulations is specified for the purposes of section 29(2A) of the National Health Service Reform and Health Care Professions Act 2002(b) only where that decision was taken on or after the date on which these Regulations come into force.
Why the transitional provision is required
The Professional Standards Authority (‘the Authority’) can appeal certain decisions made by Social Work England.[8]
Due to an oversight, final orders reviewed under paragraph 15(1) of Schedule 2 of the 2018 Regulations [9] were not included in the list of appealable decisions. As a result of the amendments, reviews of final orders under paragraph 15(1) will now be included as appealable decisions.[10]
What is the effect of the transitional provision?
Transitional provision 5(6) confirms that the Authority’s regulation 34(g) power to appeal decisions made under paragraph 15(1) is not retrospective. This means that they can only appeal decisions made under paragraph 15(1) if they were made on or after 16 December 2022.
[note 8]: The Authority’s powers to appeal a decision of Social Work England stem from section 29(2A) of the National Health Service Reform and Health Care Professions Act 2002. The decisions that can be appealed are specified in regulation 34 of the Social Workers Regulations 2018.
[note 9]: Being reviews of final orders prior to expiry of the order
[note 10]: See regulation 2(8)(b) of the Social Workers (Amendment and Transitional Provision) Regulations 2022