Social Work England v Mark Simon Richard Burnham

On an application to extend an interim regulatory order, the court must assess whether continuation remains justified by public protection, the public interest or the practitioner’s interests. Relevant factors include the gravity of the allegations, the evidence, risk of harm, reasons for delay and prejudice to the practitioner. The court does not determine disputed facts or the merits of the underlying fitness-to-practise case.

Where the court has previously extended the order for a limited period, a further application should address the earlier evidence, submissions, reasons and observations. The applicant should not ordinarily relitigate issues already decided without a material change of circumstances or other good reason. An extension may nevertheless be granted where the final hearing could not reasonably be listed within the earlier period and public protection continues to justify interim suspension.

Social Work England applied under paragraph 14(2) of Schedule 2 to the Social Workers Regulations 2018 for a further extension of an interim suspension order imposed during a fitness-to-practise investigation concerning alleged boundary breaches, sexual motivation, failures to follow management instructions and inadequate records.

The order had originally been imposed in July 2021 and was extended by the court in January 2023 for six months, rather than the twelve months sought. The final fitness-to-practise hearing was subsequently listed for December 2023. The defendant opposed further extension, relying on alleged lack of public risk, delay and adverse effects on his health.

The central issues were whether continuation remained necessary and how the earlier court order affected the court’s jurisdiction and approach on the further application.

1. The application was allowed in part. The interim suspension order was extended until the end of January 2024, to allow the fitness-to-practise panel to conclude the listed hearing and deliver its decision. The longer period sought, ending in April 2024, was refused.

2. Applying General Medical Council v Hiew [2007] EWCA Civ 369, the court held that the relevant criteria for extension were the protection of the public, the public interest or the practitioner’s own interests. The applicant bore the burden on the balance of probabilities. The court could consider the gravity of the allegations, the nature of the evidence, risk of harm, reasons for delay and prejudice, but it was not its function to determine primary facts or the merits of the fitness-to-practise case.

3. The public interest included the statutory objectives in section 37 of the Children and Social Work Act 2017, including maintaining public confidence and proper professional standards. Credible evidence supported the allegations referred to a final hearing. The defendant’s intention not to practise, the absence of criminal proceedings, the DBS decision, his previous record and the service user’s failure to complain did not eliminate the relevant interim risk.

4. A later application must take account of the earlier order, the evidence and submissions previously made, and the earlier court’s reasons and observations. The decision was analogous to an interim or case-management decision with liberty to apply. Issues already determined should not ordinarily be fought again without good grounds, such as a material change of circumstances. The January order did not preclude extension because new evidence established that the final hearing could not reasonably be listed before the expiry date.

5. Delay and ill-health were relevant factors, but no culpable post-January delay was established and no material change in health was shown. Those matters did not outweigh public protection. Any complaint about the overall duration of the regulatory proceedings had to be pursued before the adjudicators or, where available, by appeal or judicial review.

Any future extension application was to be accompanied by this judgment and, ordinarily, the earlier hearing materials or a sufficient note of the earlier decision.

The judgment records that the High Court had previously extended the interim suspension order on 18 January 2023 until 27 July 2023. The present application concerned a further extension and was determined at first instance.