Power to review case examiner decisions (guidance for case examiners)

Last updated: 16 August 2024

• About this guidance
• When and why a decision might be reviewed
• The rule 12G decision
• What happens when the case is referred back to the case examiners?
• What happens when only part of a decision is returned for a fresh decision?
• Examples of where part of a decision may be referred back to the case examiners
• Second (and subsequent) applications

About this guidance

This guidance is about (all of the following):

• when and why we might review a case examiner decision
• making a rule 12G decision
• when a case is referred back to the case examiners for a fresh decision

Who this guidance is for

This guidance is primarily for (both of the following):

• our case examiners
• our case examiner operations team
• our power to review team

It may also be useful for other Social Work England staff.

Other resources

You may also find the following content useful:

• Case examiner guidance
• Power to review case examiner decisions guidance for the public
• Power to review case examiner decisions webpage

When and why a decision might be reviewed

What is the power to review case examiner decisions (via rule 12G)?

Social Work England has the power to review certain decisions made by case examiners on or after 16 December 2022. This power (and the process we need to follow) is set out in schedule 2, paragraph 9A of the Social Workers Regulations 2018 and rule 12G of the Social Work England (Fitness to Practise) Rules 2019.

Reviewing a case examiner decision under rule 12G is different from the review of an interim order or final order. In a review of a case examiner decision, we will decide whether something went wrong with the original decision. Where it has, we will consider whether a fresh decision is necessary.

Who can apply for a rule 12G review?

There are a number of people who can apply for a review of a case examiner decision under rule 12G. This includes (any of the following):

• the regulator (Social Work England)
• the social worker that was investigated
• the person or organisation that first raised a concern about the social worker
• someone else with an interest in the decision

What decisions can we review?

Rule 12G only applies to certain decisions made by the case examiners since 16 December 2022 (under paragraphs 6, 7 and 9 of schedule 2 of the Social Workers Regulations 2018).

The types of decisions we are able to review are (any of the following decisions):

• that there is no realistic prospect that the adjudicators would find the social worker’s fitness to practise impaired
• to take no further action (to close a case in part or in full)
• to issue advice or a warning to the social worker (to close a case in full)
• to make a final order as an alternative to a hearing (an ‘accepted disposal’)

How do we decide whether a fresh decision is necessary?

Rule 12G sets out a number of tests that we need to apply to each application for review. This is a two-stage process, completed by our power to review team.

The two stages are as follows:

1) Stage 1. Where we have determined that an application is eligible, we will decide whether the grounds to commence a review of the case examiner decision are met. We will do this using the tests set out in rule 12G.

We will decide (all of the following):

• whether the decision may be materially flawed
• whether there may be new information which may have led to a different decision

If one (or both) of the above criteria are met, we will then decide whether a review of the case examiner decision is (any of the following):

• necessary for the protection of the public
• necessary for the prevention of injustice to the social worker
• necessary in the public interest

There are two possible outcomes at stage 1:

• If we decide that the grounds to commence a review are met, we will carry out a review of the case examiner decision.
• If we decide that the grounds to commence a review are not met, the rule 12G process will end. The case examiner decision will remain in place.

2) Stage 2. We will carry out a review of the original case examiner decision.

We will decide (all of the following):

• whether the decision is materially flawed
• whether there is new information which would probably have led to a different decision

If one (or both) of the above criteria are met, we will then decide whether a fresh decision is (any of the following):

• necessary for the protection of the public
• necessary for the prevention of injustice to the social worker
• necessary in the public interest

There are two possible outcomes at stage 2:

• We may decide that a fresh decision is necessary. If so, we will refer the case back to the case examiners. The case examiners will then make a new decision on the case
• We may decide that the original case examiner decision will remain in place.

The full process and test is set out in rule 12G of the Social Work England (Fitness to Practise) Rules 2019 and our power to review case examiner decisions guidance for the public.

If an application passes stage 1 and stage 2, we have the option to refer the case back to the case examiners for a fresh decision. We do not make the fresh decision or decide on the outcome of the case itself.

If an application does not pass either stage 1 or stage 2 of the process, the original case examiner decision will remain in place.

The rule 12G decision

We will only ask the case examiners to make a fresh decision if the case meets all of the criteria listed below. We sometimes refer to this as making a “rule 12G decision”.

The decision can be reviewed under rule 12G(1)

The case examiner decision must be one which can be reviewed under rule 12G(1). For example, a decision (any of the following):

• that there is no realistic prospect that the adjudicators would find the social worker’s fitness to practise impaired
• to take no further action (to close a case in part or in full)
• to issue advice or a warning to the social worker (to close a case in full)
• to make a final order as an alternative to a hearing (an ‘accepted disposal’)

A person with an interest in the decision has made the application

The application has been made by (any of the following) (rule 12G(2) and (3)):

• Social Work England
• the social worker that was investigated
• the complainant 
• someone else with an interest in the decision

The application has been made using the application form

The application has been made using the designated application form (rule 12G(4)).

The application is made within 3 months (or there are exceptional circumstances)

The application has been made within 3 months of the case examiner decision being made. If it has been over 3 months, there must be exceptional circumstances (rule 12G(6)).

This is the first application (or there are exceptional circumstances or new information)

The application must be the first one that the applicant has made (relating to this case examiner decision). If it is the second application, there must be exceptional circumstances or new information (rule 12G(7)).

The original decision is materially flawed, or there is new information

It must be the case that (one or both of the following) (rule 12G(10)):

• all or part of the original decision is materially flawed (for any reason)
• there is new information

We define “new information” as information which:

• was available (in existence) at the time that the case examiners made their decision
• the case examiners did not know about when they made their decision
• would have led to a different outcome (if the information had been available to the case examiners)

A fresh decision is necessary in the public interest

It must be the case that a fresh decision is necessary (one or more of the following) (rule 12G(10)):

• for the protection of the public
• for the prevention of injustice to the social worker
• otherwise in the public interest

We have concluded a fresh decision is necessary

We (the regulator) must conclude that a fresh decision is necessary (rule 12G(11)(a)) to refer the case back to the case examiners.

We should provide the final decision to the case examiners and we will set out the reasons why we consider that a fresh decision is necessary.

It is not for the case examiners to decide whether these criteria have been met. If we have referred the case to the case examiners for a fresh decision, we have already decided that these criteria are met.

What happens when the case is referred back to the case examiners?

What does it mean to make a “fresh decision”?

Where we refer a case back to the case examiners, they will make a ‘fresh’ decision (rule 12G). This means that the case examiners are making a new decision, based on the information available to them.

A fresh decision includes considering (all of the following):

• the original investigation report and bundle
• responses from the social worker and any other person
• the rule 12G decision
• any further information we have received

Who will be the case examiners for the fresh decision?

A fresh decision may be made by (either of the following):

• the same pair of case examiners that initially considered the case
• a new pair of case examiners

The case examiner operations team are responsible for deciding who to allocate the fresh decision to.

The same pair of case examiners

There may be situations where it is more appropriate for the case to go back to the original case examiners. For example, where there are a large number of documents, or where we receive new information which could change the original decision.

A new pair of case examiners

In some cases, the case examiner operations team will appoint new case examiners. This is more likely where (both of the following apply):

• we have found a material flaw in the original decision, and
• this flaw relates to the decision-making of the original case examiners (for example, where they have made an irrational decision)

Independence and impartiality

The case examiners are independent and impartial decision makers. They will have the full range of outcomes available to them when they reconsider the case.

How should we treat the original case examiner decision?

When we refer a case back to the case examiners for a fresh decision, we will revoke those parts of the original decision where we have decided that a fresh decision is necessary.

We will share the rule 12G decision with the case examiners. This will set out (both of the following):

• what the material flaw and/or new information is
• why a fresh decision is necessary (including whether it is necessary for the protection of the public, for the prevention on injustice or otherwise in the public interest)

We may also provide the original decision to the case examiners, to give them the context of the case. The case examiners should read the original decision alongside the rule 12G decision.

The original decision will not influence the fresh decision. The case examiners will consider the case as if there has been no previous consideration. They will not consider the merits of the original decision, because we will have already decided that (one or more of the following):

• the original decision is materially flawed
• there is new information which could change the outcome of the decision

It may be particularly helpful for the case examiners to consider the original decision when they only need to review part of the original decision, as they will need to understand (both of the following):

• what part of the original decision is still in effect
• which part of the original decision requires a fresh decision

For more information on this, see What happens when only part of a decision is returned for a fresh decision?’

What documents should the case examiners consider?

We will provide the case examiners with the same bundle that we provided to the case examiners who made the original decision. We will also provide a supplementary bundle. This supplementary bundle will include (all of the following):

• the rule 12G decision
• any information received during the rule 12G decision process
• any further investigation carried out as part of the rule 12G decision process
• any submissions we receive from the social worker (or any other person) during the rule 12G decision process and after we have made the rule 12G decision

How should we apply the case examiner guidance?

The case examiner guidance will continue to apply to fresh decisions. However, the case examiners will need to decide how to apply that guidance to the specific factual scenario (as with any decision).

In cases where we have ordered a fresh decision, that factual scenario will include the rule 12G decision (which sets out the reasons why a fresh decision is necessary). For example, where there was a material flaw because the original case examiners did not apply the correct law and guidance, then the fresh decision should apply the correct test of law and guidance, as it will be (correctly) set out within the rule 12G decision.

What happens when only part of a decision is returned for a fresh decision?

Rule 12G(2) is clear that either all or part of a case examiners’ decision may be subject to review.

“Part of” a decision may refer to a specific part of the case, or to a stage in the process. It may include (any of the following):

• one of the factual concerns (but not all)
• one of the grounds of impairment alleged (but not all)
• the decision on impairment (as opposed to the decision on the factual concerns)
• the sanction proposed as part of an accepted disposal (as opposed to proposing accepted disposal)
• the decision to give a warning (instead of advice or no sanction)

The remaining part of the case examiner decision remains in place.

This means that where the case examiners consider that some of the facts of the case or the finding of impairment are not capable of being proved, and they either close all of the concerns which have been referred to them or some of the concerns, we can review the part of their decision which has been closed.

This also means that we will be able to review a case where some of the concerns have been referred to the adjudicators but where some of the concerns were closed by the case examiners and not referred on. We will only be able to review those concerns which have been closed and we will not be able to consider the concerns which have been referred to the adjudicators.

Fresh decision

If we decide a fresh decision is necessary for part of a decision (but not all of it), the decision maker will refer that part of the decision back to the case examiners to make a fresh decision on. Only that part of the decision will be revoked and the case examiners must not change the rest of the original decision.

The information we provide to the case examiners will make clear (both of the following):

• which parts of the original decision require a fresh decision
• which parts of the original decision will remain in place

Examples of where part of a decision may be referred back to the case examiners

Example 1

A case consisted of 4 regulatory concerns.

The original case examiner decision referred regulatory concerns 1 and 2 through to the adjudicators. The remaining regulatory concerns (3 and 4) were closed.

Someone makes an application to review the regulatory concerns which were closed (3 and 4). We make a rule 12G decision that a fresh decision is necessary for these concerns, and send them back to the case examiners.

The case examiners’ original decision on regulatory concerns 1 and 2 will remain in place. The case examiners will then make a fresh decision on regulatory concerns 3 and 4. When making a decision on impairment and the outcome of the case, they will take into consideration the original decision about regulatory concerns 1 and 2.

Example 2

A case examiner decision closes two regulatory concerns. After review, we decide that a fresh decision is necessary in respect of only one of the regulatory concerns (concern 1). We revoke the case examiner decision on concern 1, and refer it back to the case examiners for a fresh decision. The original decision in respect of the other regulatory concern (concern 2) will still stand and will remain closed.

Example 3

During a case, a social worker makes admissions to the regulatory concerns. The case examiners agree to an accepted disposal of a conditions of practice order.

However, the complainant makes an application to review the decision to impose a conditions of practise order. They say there is new information that would change that decision.

We make a rule 12G decision that a fresh decision is necessary, because there is new information. This new information could change (both of the following):

• the case examiners’ decision on impairment
• the outcome of the case

A fresh decision will only be required on those parts of the decision. This means the original decision on facts will remain in force. However, the case examiners will need to reconsider impairment.

If they find that there is a realistic prospect that the social worker’s fitness to practise would be found impaired at a hearing, they will need to consider (doing either of the following):

• proposing an accepted disposal (this may be the same type of final order, or a different final order, to that proposed by the original case examiners)
• referring the case to the adjudicators

Second (and subsequent) applications

Second applications

In some cases, the power to review team will decide that the original decision still stands.

If so, we will not review any further applications from the same person. This is unless (one or both of the following):

• they provide us with new information which could change the outcome of the decision
• there are exceptional circumstances

The purpose of this rule is to ensure that (all of the following):

• we make decisions efficiently
• the social worker has certainty in the outcome
• we do not receive repeat applications from the same person

Applications made following a fresh decision

If the case examiners make a fresh decision (following a rule 12G decision), we consider this to be a new decision. This means that the same person can apply for this decision to be reviewed as this will be their first application in respect of the new decision.

If this happens, we will follow the process as set out in this guidance.