Case Examiner Decision Michael Andrew Winn FTPS-16657

Contents

The role of the case examiners .................................................................................................. 3

Administrative details ................................................................................................................ 4

Decision summary ...................................................................................................................... 5

Summary of the initial concerns ................................................................................................ 6

Preliminary issues ...................................................................................................................... 9

The realistic prospect test - facts ............................................................................................. 10

The realistic prospect test - grounds ....................................................................................... 12

The realistic prospect test – current impairment .................................................................... 15

Referral to a hearing ................................................................................................................ 17

Referral to an interim order hearing ....................................................................................... 18

Accepted disposal .................................................................................................................... 19

Final decision............................................................................................................................ 23

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The role of the case examiners

The case examiners perform a filtering function in the fitness to practise process, and their

primary role is to determine whether the case ought to be considered by adjudicators at a

formal hearing. The wider purpose of the fitness to practise process is not to discipline the

social worker for past conduct, but rather to consider whether the social worker’s current

fitness to practise might be impaired because of the issues highlighted. In reaching their

decisions, case examiners are mindful that Social Work England’s primary objective is to

protect the public.

Case examiners apply the ‘realistic prospect’ test. As part of their role, the case examiners will

consider whether there is a realistic prospect:

• the facts alleged could be found proven by adjudicators

• adjudicators could find that one of statutory grounds for impairment is engaged

• adjudicators could find the social worker's fitness to practise is currently impaired

Case examiners review cases on the papers only. The case examiners are limited, in that,

they are unable to hear and test live evidence, and therefore they are unable to make

findings of fact.

4

Administrative details

Case examiners

Lay case examiner Oliver Carr

Professional case examiner Kay Blower

Social worker that is the subject of the concern(s)

Name Michael Andrew Winn

Registration number SW41595

Date of registration 01 August 2012

Case details

Case reference number FTPS-16657

Date the concern was raised 29 November 2019

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Decision summary

Decision summary

Provisional decision Accepted disposal – conditions

Final decision Final order - Conditions (12 months)

Executive summary

10 March 2020

The case examiners have determined there is a realistic prospect of the regulatory concerns

being found proven, and a realistic prospect that adjudicators would find the social worker

is impaired due to the statutory ground of misconduct. The case examiners do not,

however, believe the public interest requires this matter to be referred to a hearing; rather,

they have asked the social worker if he will comply with a set of conditions to be placed on

his practice for 12 months.

09 April 2020

Following agreement from the social worker to the proposed conditions of practice, the

case examiner have determined it is appropriate to resolve this matter by way of accepted

disposal.

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Summary of the initial concerns

Complainant’s details

Complainant’s name City of York Council

Relationship to the social

worker

Former employer

Details of the complaint

Date complaint was

received

29 November 2019

Complaint summary The complaint relates to the way the social worker

performed his duties at two safeguarding visits, while he

was employed by City of York Council.

Regulatory concerns

Regulatory Concern 1

On Thursday 7 February 2019 whilst employed as a Social Worker for York City Council you

did adequately investigate an allegation of physical abuse. You did not speak alone with all

the children concerned nor did you view the child ‘CC’ where it was claimed he had an

injury. This is contrary to HCPC Professional Standards:

1.3 be able to undertake assessments of risk, need and capacity and respond appropriately

1.4 be able to recognise and respond appropriately to unexpected situations and manage

uncertainty

1.5 be able to recognise signs of harm, abuse and neglect and know how to respond

appropriately

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4.1 be able to assess a situation, determine its nature and severity and call upon the

required knowledge and experience to deal with it

4.2 be able to initiate resolution of issues and be able to exercise personal initiative

4.3 recognise that they are personally responsible for, and must be able to justify, their

decisions and recommendations

4.4 be able to make informed judgements on complex issues using the information

available

4.5 be able to make and receive referrals appropriately Standards of proficiency – Social

workers in England

Regulatory Concern 2

On Monday 11 February 2019 whilst employed as a Social Worker for York City Council you

did not ask appropriate questions and take the lead on investigating a possible

safeguarding concern relating to physical harm caused by the child’s mother. This is

contrary to HCPC Professional Standards:

1.3 be able to undertake assessments of risk, need and capacity and respond appropriately

1.4 be able to recognise and respond appropriately to unexpected situations and manage

uncertainty

1.5 be able to recognise signs of harm, abuse and neglect and know how to respond

appropriately

4.1 be able to assess a situation, determine its nature and severity and call upon the

required knowledge and experience to deal with it

4.2 be able to initiate resolution of issues and be able to exercise personal initiative

4.3 recognise that they are personally responsible for, and must be able to justify, their

decisions and recommendations

4.4 be able to make informed judgements on complex issues using the information

available

4.5 be able to make and receive referrals appropriately Standards of proficiency – Social

workers in England

Regulatory concern 3

On Monday 11 February 2019 whilst employed as a Social Worker for York City Council you

dozed in and out of sleep whilst in the presence of a service user and a CIN practitioner.

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This led to the meeting being brought to an early conclusion by the CIN practitioner. This is

contrary to HCPC Professional Standards:

6.3 You must make changes to how you practise, or stop practising, if your physical or

mental health may affect your performance or judgement or put others at risk for any other

reason.

By reason of RC1, RC2 and RC3 Your fitness to practise as a social worker is impaired by

reason of misconduct and competence.

Key evidence considered by the case examiners

The case examiners have had due regard to all the evidence provided to them in their

case bundle, including:

• City of York’s Disciplinary and Appeals pack concerning the social worker.

• Two responses from the social worker to Social Work England.

• Two Occupation Health Reports regarding the social worker.

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Preliminary issues

Conflicts of interest

Declaration: I am not aware of any material conflicts of interest that could impact upon

my consideration of this case.

Lay case examiner Oliver Carr

Professional case examiner Kay Blower

Requests for further information or submissions, or any other preliminary

issues that have arisen

The case examiners note the word ‘not’ is missing from Regulatory Concern 1. They

consider this is a typo and would have been obvious to the social worker when responding

to the regulatory concerns, which he has done by email. They consider therefore the social

worker has been provided with a reasonable opportunity to respond, in accordance with

the statutory requirement.

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The realistic prospect test - facts

Is there a realistic prospect of the facts as stated being found?

Regulatory concern 1

On Thursday 7 February 2019 whilst employed as a Social Worker for York City Council

you did [not] adequately investigate an allegation of physical abuse. You did not speak

alone with all the children concerned nor did you view the child ‘CC’ where it was claimed

he had an injury. This is contrary to HCPC Professional Standards.

The case examiners have reviewed the disciplinary pack provided by the City of York Council

(the council) which contains witness statements and outlines the council’s case against the

social worker.

The social worker explains that he was requested, at the last minute, to visit the family

along with a Child in Need (CiN) Practitioner to assess whether Child CC had any injuries

that had been caused by his father. The social worker explains he had no current

relationship with the family, and so worked in conjunction with the CiN practitioner.

As detailed in the notes of the council’s investigation meeting taking place on 15 March

2019, the social worker accepts he did not speak with the child alone during the meeting

and that he declined an offer made by the father to inspect Child CC. He also concedes that,

in hindsight, the level of investigation on that day was inadequate. The social worker has

provided a detailed explanation for his actions, which the case examiners will discuss in the

next section of their assessment. However, for the purposes of this aspect of their decision-

making, they have found there is a realistic prospect of the facts being proven by

adjudicators.

Regulatory concern 2

On Monday 11 February 2019 whilst employed as a Social Worker for York City Council

you did not ask appropriate questions and take the lead on investigating a possible

safeguarding concern relating to physical harm caused by the child’s mother. This is

contrary to HCPC Professional Standards.

A visit took place on 11 February to investigate an allegation that a child had been hit with

a wooden spoon.

The social worker states, “I let the CIN Practitioner take the lead and address the questions.

I chipped in when necessary.”

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When asked during the council’s investigative interview if he had fully explored the risk of

physical harm to the child, he states: “Probably not on reflection. In hindsight probably not.”

Again, the social worker has provided context for his actions in his representations and this

will be discussed below; however, based on the evidence noted above, the case examiners

have determined there is a realistic prospect of this regulatory concern being found proven

by adjudicators.

Regulatory concern 3

On Monday 11 February 2019 whilst employed as a Social Worker for York City Council

you dozed in and out of sleep whilst in the presence of a service user and a CIN

practitioner. This led to the meeting being brought to an early conclusion by the CIN

practitioner. This is contrary to HCPC Professional Standards.

The social worker denies this allegation. In the investigative interview he states the tone of

the mother’s voice made him feel drowsy, and that he closed his eyes for a short period to

regain concentration. He however categorically denies ‘dozing in out of sleep’ as has been

alleged.

Conversely, in the notes of the 20 March investigation meeting with the CiN practitioner

who accompanied the social worker on 11 February, the practitioner states: “The social

worker was sat to my left and I could see out of the corner of my eye that he was nodding

off. He was not asleep for a long period of time. He was not proactive in the discussion as

he was nodding off/dozing.” The practitioner feels it likely the service user would have been

able to see the social worker dozing, albeit it does not appear the service user made a

complaint about the social worker. The case examiners also note the practitioner decided

to raise the issue with her manager immediately after the meeting.

There is also contradiction as to whether the meeting was cut short. The CiN practitioner

states she brought the visit to an early conclusion as she felt uncomfortable as the social

worker was falling asleep; however, the social worker asserts the meeting was not cut

short.

The case examiners are unable to resolve substantial conflicts in evidence. As such, on one

construction of the evidence – that of the practitioner – there is a realistic prospect of this

matter being found proven by adjudicators.

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Is there a realistic prospect of facts being found if the regulatory concerns

were amended?

The case examiners are satisfied that the regulatory concerns, as drafted, adequately

reflect the seriousness of this matter.

The realistic prospect test - grounds

For the facts that have passed the realistic prospect test, is there a realistic

prospect that they could amount to an allegation of impaired fitness to

practise by reason of the statutory grounds?

The case examiners must consider whether, if proven, the concerns would amount to an

allegation of impaired fitness to practise by reason of the statutory grounds. The statutory

grounds being considered are ‘lack of competence or capability’, and ‘misconduct’.

Lack of competence or capability will be addressed first.

Usually, lack of competence or capability must be demonstrated by a fair sample of a social

worker’s practice over a fair period of time. The social worker has been a registered

professional since 2005; during this time, he is likely to have carried a complex and wide

caseload. Given this matter only relates to two incidents, and given the length of the social

worker’s career, the case examiners do not feel this case represents a fair sample of his

work.

Accordingly, the case examiners are not satisfied there is a realistic prospect of adjudicators

finding that the concerns would amount to an allegation of impaired fitness to practise by

reason of ‘lack of competence or capability’.

The case examiners will now address Misconduct.

The case examiners are aware that misconduct suggests serious acts or omissions,

indicating a significant departure from what would be proper in the circumstances. To

understand what would be proper, the case examiners have considered what should have

happened in relation to the concerns, and which responsibilities principally rested with the

social worker. They have also considered how serious the matter is by looking at what the

impact was or could have been.

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With regards to the safeguarding visit that took place on 7 February, the social worker

states, prior to the visit, he tasked the CIN practitioner to make enquiries with the child’s

nursery to see if the child was behaving unusually or was withdrawn. He says he did this as

the CiN practitioner already had a relationship with the nursery, and because it allowed

him time to familiarise himself with the case notes before the visit. The account provided

by the social worker does not however appear to be supported by any written records or

by the practitioner’s account.

With regards to the concern that he did not inspect the child, the social worker states: “I

did not feel this was necessary. The child did not know me. No issues had been reported by

[the] Nursery. He (child) was uneasy as there were strangers in the house. […] The child

looked uncomfortable. On reflection [however] this should have been done there and then.”

The case examiners observe that while he did not speak alone with the child at the meeting,

arrangements were made to see the child the following day, away from the parents. It

seems the child was examined the following day and no injuries were found. It is unclear

however who instigated this second visit. The social worker suggests he had already

decided to make a follow-up visit. However, there is other evidence to suggest that the

follow-up visit was directed by a manager after learning from the CiN practitioner that the

child had not been examined at the initial meeting.

Whilst it appears the delay in speaking to Child CC was only a day, it can be argued the delay

was unnecessary. The main purpose of the visit, from the social worker’s point of view, was

to ensure a robust risk assessment had taken place ensuring the child’s safety. By his own

admission, a full assessment did not take place at the 07 February meeting.

The case examiners consider that failures in this regard would breach HCPC standards

requiring social workers to act promptly in response to safeguarding concerns and would

also breach guidelines set out by Working Together to Safeguard Children published in July

2018.

With relation to the second visit, the social worker states he allowed the CiN practitioner

to lead enquiries rather than leading the investigation himself. He states. “The majority of

the previous visits had been undertaken by the CiN practitioner who had a relationship with

the family. I felt it would be better for [the] CiN practitioner to take the lead and I would

chip in when necessary.” Of note, however, is that the social worker also had a pre-existing

professional relationship with the child.

It appears this approach was agreed between the CiN practitioner and the social worker

prior to the visit. In her interview, the practitioner states she did not feel particularly

supported by the social worker during the visit, however, the practitioner felt that no

additional support was required as she was happy with the way she led the enquiries.

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Nonetheless, the social worker concedes that enquiries during the meeting could have

been more thorough, especially as he was aware the child had made previous allegations

that had been found proven.

The case examiners have again consulted the guidance Working Together to Safeguard

Children. They note the guidance states that an investigation to assess a child under the

Children’s Act 1989 should be ‘led by a social worker’. They also note that CiN practitioners

do not have the same level of training and qualification as social workers, and as such, they

may not have the requisite experience or skills to deal with complex issues such as coercion

within a familial context.

The case examiners accept the social worker has explained why it may have been practical

to let the CiN practitioner take the lead; they also recognise that social workers are

encouraged to work within a multidisciplinary framework. They feel, however, by allowing

the practitioner to lead the inquiry, the social worker may have failed to recognise that the

responsibility for leading a safeguarding inquiry lies with the qualified social worker.

Moreover, that it was his statutory duty to ensure the risks posed to the children were fully

explored and assessed.

The case examiners further note the social worker is an experienced professional having

worked within child protection services for some considerable time. Accordingly, he should

have understood his role and responsibilities as the lead assessor. It is possible therefore

his actions would be seen as a significant departure from what would be expected of him

in the circumstances.

While not detailed in the regulatory concerns, the case examiners also note there was a

failure by the social worker to follow up both visits in an appropriate manner, with an

apparent over-reliance on the CiN practitioner to complete follow-up actions including

completing written records.

With regards to sleeping / dozing during a safeguarding meeting, while this is refuted by

the social worker, should this regulatory concern be established by adjudicators, it is likely

this would also be construed as a significant departure of acceptable behaviour and likely

to bring discredit on the profession.

For the sake of argument, even if the social worker merely closed his eyes to regain

concentration as he suggests, this may have sent non-verbal messages to others that he

was not fully engaged with the conversation.

The case examiners have given due regard to the social worker’ contention, supported by

occupational health reports, that he was subject to work-related stress at the time of these

incidents. The case examiners feel however this is unlikely to mitigate these matters away

from the threshold for misconduct: this case relates to the basic requirements of

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safeguarding investigations and the social worker appears to have several years’

experience in this area of social work.

Having considered all three regulatory concerns in the round, the case examiners have

decided, should the factual basis for the concerns be found proven by adjudicators, there

is a realistic prospect that the social worker’s conduct would be found to amount to the

statutory ground of misconduct.

The realistic prospect test – current impairment

Fitness to practise history

The case examiners have not been made aware of any previous adverse findings with

regards to this social worker.

Is there a realistic prospect that, if the case were to proceed to a hearing, the

adjudicators might find the social worker’s fitness to practise is currently

impaired?

The current impairment test has two limbs: the person element and the public interest

element.

Personal Impairment

Insight, remorse, remediation and risk of repetition

Throughout his representations to Social Work England, the social worker takes issue with

the decision made by the council to dismiss him, describing it as disproportionate to his

alleged misconduct. He has however shown some insight into the concerns raised against

him, acknowledging that he should have done things differently, or that he would act

differently in the future.

He also points out that he was prevented from attending as much training as he would have

liked because of high workloads and the need to continually re-prioritise his workload. The

social worker explains he has had scant opportunity to take any remedial action since these

matters were raised as he was on long-term sick leave from 25 March 2019 until his

dismissal on in November 2019.

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He further states he is not currently employed and therefore not currently practising. He

has stated however: “I would welcome the chance to complete some training, I would

benefit from some training. With what has gone on I would welcome training.”

The case examiners consider the conduct complained of is remediable, however in this

instance, further training and reflective work may be necessary to ensure that there is no

risk of repetition.

Public interest

Under this heading the case examiners will consider public safety; the need to uphold

proper standards in social work, and the need to maintain the public’s confidence in the

profession.

The case examiners have found that the social worker’s actions, if proven, would breach

his statutory duty with regards to safeguarding vulnerable individuals. These allegations

have the potential to put service users at risk and undermine the public’s confidence in the

profession. What is more, because safeguarding is a basic tenet of social work, it is

incumbent on the regulator to take appropriate action to ensure standards relating to child-

safeguarding are upheld. As such the case examiners believe the public interest is engaged

by this matter.

For the reasons stated above, the case examiners have concluded there is a realistic

prospect that adjudicators would find the social worker to be currently impaired.

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Referral to a hearing

Is there a public interest in referring the concerns to a hearing?

Having established there is a realistic prospect of finding current impairment, the case

examiners must turn their minds to whether it is in the public interest for this matter to be

referred to a final hearing to be considered by adjudicators.

When considering the public interest necessitating referral, the case examiners have

considered the following factors:

• The risk to public safety

• The need to maintain the public’s confidence in the profession

• The need to uphold proper standards within the social work profession

• The need for regulators to act proportionately

The case examiners have identified a potential risk to the public posed by this social worker

due to his need for remedial training. The case examiners, however, have the power to

impose conditions on the social worker, meaning the regulator will have oversight of his

practice until he is deemed safe to continue practising unrestricted.

What is more, the case examiners are required to act proportionality, and they have

determined this case is suitable for resolution without the need for a full hearing. The case

examiners feel the social worker has shown the requisite insight by identifying that he

would do things differently and is in need of further training. The case examiners

acknowledge the social worker disputes some of the facts that underpin the regulatory

concerns, but overall, he has demonstrated a desire to improve his practice. The case

examiners believe therefore the public can be protected by the regulator overseeing his

remediation.

In addition, while noting there is a realistic prospect that adjudicators would find these

allegations are serious, the case examiner do not believe adjudicators would consider these

matters are so serious that they would seek to permanently remove the social worker’s

registration. This is a further indication that a referral to a hearing is not in the public

interest.

With regards to upholding standards, the case examiners are aware that in the event the

social worker agrees to an ‘accepted disposal’, their full decision will be published on Social

Work England’s website, thus fulfilling the public interest and the need to declare what is

proper conduct. They are cognisant that their guidance supports this approach in all but

the most serious cases.

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For the reasons given above, the case examiners have decided it is not in the public interest

to refer this matter to a hearing, rather they will attempt to resolve the matter now by

offering that the social worker agrees to an accepted disposal.

Referral to an interim order hearing

Should a referral to an interim order be made? A referral must be made if an

interim order may be necessary for the protection of the public or in the best

interests of the social worker.

The case examiners do not believe the concerns raised against the social worker are such

that there is an urgent need for his practice to be restricted. They further note the social

worker has stated he is not currently practising and have seen no evidence to the contrary.

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Accepted disposal

Case outcome

Proposed outcome Final order – conditions (12 months)

Reasoning

The case examiners have found a realistic prospect that the social worker will be found to

be currently impaired. What is more, by his own admission he would benefit from some

further training. The case examiners are aware they must choose the least sanction

necessary to protect the public. They have considered offering advice or a warning to the

social worker, but they note that neither sanction gives the regulator any ongoing oversight

of the social worker’s practice. As such, they believe that a final order requiring conditions

of practice is the minimum necessary to ensure the public remains protected while the

social worker updates his skills.

The case examiners are aware the social worker is not currently working; however, they

feel that some reflective work and professional development can be undertaken while not

in practice. They also note the social worker’s intention to seek further employment now

that, with his agreement, the investigative aspect of the fitness to practise process can

come to an end.

Before deciding whether to accept the order, should the social worker have any questions

about how he should comply with the conditions set out below, he is encouraged to speak

with Social Work England staff.

The case examiners are aware that if the social worker does not accept their proposal, the

matter will proceed to a full hearing to be considered by adjudicators.

Content of the advice, warning or conditions

1. You must notify Social Work England within seven days of any professional

appointment you accept or are currently undertaking and provide the contact

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details of your employer, agency or any organisation with which you have a contract

or arrangement to provide social work services, whether paid or voluntary.

2. You must allow Social Work England to exchange information with your employer,

agency or any organisation with which you have a contract or arrangement to

provide social work or educational services, and any reporter or workplace

supervisor referred to in these conditions.

3. (a) At any time, you are providing social work services which require you to be

registered with Social Work England, you must agree to the appointment of a

‘reporter’ nominated by you and approved by Social Work England. The reporter

must be on Social Work England’s register.

(b) You must not start/restart work until these arrangements have been approved

by Social Work England.

(c) You must allow your reporter and Social Work England to exchange information.

4. You must provide reports from your reporter to Social Work England every four

months and at least 28 days prior to any review.

5. You must inform Social Work England within seven days of receiving notice of any

formal disciplinary proceedings taken against you from the date these conditions

take effect.

6. You must inform Social Work England within seven days of receiving notice of any

investigations or complaints made against you from the date these conditions take

effect.

7. You must inform Social Work England if you apply for social work employment /

self-employment (paid or voluntary) outside England within seven days of the date

of application.

8. You must inform Social Work England if you are registered or subsequently apply

for registration with any other UK regulator, overseas regulator or relevant

authority within seven days of the date of application (for future registration) or

seven days from the date these conditions take effect (for existing registration).

9. You must work with your reporter, to formulate a personal development plan

(PDP), specifically designed to address the following areas of your practice:

o Duties and responsibilities when undertaking investigations under s17 and

s47 of the Children’s Act 1989 (amended 2007).

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o Complying with Working Together to Safeguard Children guidance.

o Using your professional judgment when assessing risk.

o Ensuring professionalism / effective communication when dealing with

service users.

10. You must provide a copy of your personal development plan to Social Work England

within two months from the date the reporter is approved by Social Work England

and an updated copy 28 days prior to any review.

11. You must read Social Work England’s Professional Standards (July 2019), and

provide a written reflection to Social Work England three months after these

conditions take effect, focusing on how your conduct was allegedly below the

accepted standard of a social worker (as outlined above in the three regulatory

concerns) and explain what you could have done differently. You should make

specific reference to professional standards 2 and 3.

12. (a) You must undertake at least 20 hours of CPD in relation to a social worker’s

responsibilities regarding effectively safeguarding children and effective

communication skills. This could include training courses and/or reflective or self-

directed reading. Your PDP (mentioned above) should set out how you will achieve

this.

(b) You must provide evidence of CPD undertaken to Social Work England within six

months of these conditions taking effect.

13. You must inform, within seven days from the date these conditions take effect, the

following parties that your registration is subject to the conditions listed at 1 to 12,

above:

o Any organisation or person employing or contracting with you to undertake

social work services whether paid or voluntary.

o Any locum, agency or out-of-hours service you are registered with or apply

to be registered with (at the time of application).

o Any prospective employer (at the time of application).

o Any organisation, agency or employer where you are using your social work

qualification/knowledge/skills in a non-qualified social work role, whether

paid or voluntary.

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You must forward written evidence of your compliance with this condition to Social

Work England within 14 days from the date these conditions take effect.

14. You must permit Social Work England to disclose the above conditions, 1 to 13, to

any person requesting information about your registration status.

The conditions will apply for a period of 12 months, starting from the day they are accepted

by the social worker. Social Work England is able to request an early review of these

conditions if appropriate.

Response from the social worker

The case examiners have been provided with a response form the social worker dated 06

April 2020.

The social worker has signed to say that he agrees in full to the terms of the proposed

outcome. The social worker has also requested two minor amendments to the text within

the body of their decision.

Case examiner response

The social worker has requested two minor amendments to the text within the body of

their decision. The case examiners are happy to agree to these amendments and have

updated their decision accordingly.

The case examiners have considered again the public interest in referring the matter to a

hearing; however they have been provided with no additional information which would

make them change their previous assessment of this issue.

Accordingly, and in light of the social worker’s acceptance, the case examiners have

decided to resolve this matter by way of a final order of conditions lasting 12 months.

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Final decision

Case examiners’ final decision

Final order – conditions (12 months)