Fitness to Teach: our work

Our caseload

Our caseload has grown since early 2020. We started 2022-23 with 237 open cases, up significantly from 180 in 2021-22 and 164 in 2020-21. This represents the highest open caseload for us in more than 10 years.

The growth in our caseload has been partly due to the pandemic and the challenging context which it created for us progressing the most serious cases – those where regulatory action requires to be taken.

Our Fitness to Teach process relies on the cooperation and involvement of others in it, particularly teachers. The impact of the pandemic and focus understandably on managing the impact of the pandemic on the education system over 2020 and 2021 made it difficult for teachers to be released to participate in our process, whether as witnesses or panel members. Health has been a factor that has impacted availability and release too.

We have also experienced other challenges over recent years, particularly in relation to information sharing and an increase in the time that it takes for us to obtain information. We took legal action against Police Scotland to address some of these challenges. While the impact of that legal action has been positive, it continues to take a long time for us to get the information we need to take our process forward effectively and significant work has been associated with us advocating for system-wide change and improvement in this context.

Over and above those factors affecting case throughput to closure, caseload growth has also been caused by an increase in the number of referrals made to us. There have been identified referral spikes in each of the 2019-20 (228 referrals received) and 2021-22 (230 referrals received) years. While the number of referrals made are still low relative to the size of our Register, these increases are significant relative to the number of referrals we received before (160 referrals were received in 2016-17).

There is no single explanation that we have found for the increase in referrals as the pattern in referrals has varied. In both 2018/19 and 2022/23 there was an increase in the number of referrals made to us by employers (66 in 2018/19 and 75 in 2022/23 – the five-year employer referral average is 61). In 2019/20 we received 69 referrals from members of the public when the five-year average was 53. In 2021/22 we received 85 referrals from teachers themselves (self-referrals), almost all of these related to applicants for registration and a significant proportion (41) was associated with college lecturers applying for registration. The referral increase in 2021/22 was therefore almost certainly linked to the increase in the number of people on our Register, and us welcoming college lecturers on to it.

Spikes in referrals in any year create challenges for us because we are a small organisation – having a stable and predictable number of referrals is much easier for us to manage within the team of officers and other resources that we have available to us. We have also experienced quite significant turnover in the team of officers that carry out our Fitness to Teach work which has affected continuity and increased work. We are looking at ways we can increase the resilience of our process and our resource to address these challenges.

Focusing on the cases we need to see

We communicated with local authority employers in 2022 to remind them of their legal obligation to make referrals to us and to make sure they had made all the referrals that they should have over recent years about the teachers employed by them. We also asked them to help support the recovery of our Fitness to Teach process from recent challenges and provided some information about our process and legal context. A majority (66%) of local authorities responded, and we plan on following this up again in coming years.

We see a wide variability in the investigative practice of employers across different types of cases. We believe there is a particular challenge in ensuring there is the resource, knowledge and experience within employers to carry out these processes with neutrality and an understanding of best legal investigative practice. Continuity of resource and records management are other challenges we have observed. These are areas we are keen to discuss with partners and see how we can play our part in supporting improvements in future.

We received 305 referrals from employers between 1 April 2018 and 31 March 2023. We investigated or took forward 92% (282) of them.

Many concerns raised with us by members of the public relate to matters that we are not able to consider through our Fitness to Teach process or are made too early, before local processes have been used to try and resolve things first. Sometimes referrals are made years after events alleged occurred, by which time the member of the public has taken their concerns everywhere and still does not feel they have been properly heard so they are understandably very aggrieved. There is often confusion about what our role is and expectations of our process that we cannot meet.

Commonly the concerns are about the education service that is being provided, rather than the conduct of an individual teacher. We believe we see a higher level of referrals about headteachers for this reason. We are also increasingly seeing concerns raised about multiple teachers at one time which may be similarly related – the issue is about the school and system, not the individual teacher.

The concerns raised also often relate to an isolated set of events involving one learner. A mistake or error of judgement has been recognised and there is nothing to suggest the teacher represents an ongoing risk to justify involving our Fitness to Teach process.

We received 275 referrals from members of the public between 1 April 2018 and 31 March 2023. We investigated 26% (71) of them.

Allegation themes we have identified in member of the public referrals are:

• Concerns about how learner-to-learner bullying and similar is being addressed within a school
• Concerns related to a different interpretation or recollection of what has been heard or said by those involved. These are presented as ‘dishonesty’, but they often do not represent a deliberate intention to mislead. We sometimes find in these referrals that the teacher has raised welfare concerns about the member of the public’s child/children, and there appears to be an attempt to gain advantage in another forum through our process
• Concerns about safe handling procedures/approaches and plans for learners who have identified additional support needs
• Concerns about views that a teacher has expressed publicly, often through social media.

Across all referrals we receive we know that people find it difficult to clearly set out what the concerns are. We have identified that we are sometimes having to investigate a case to find out what the allegations are because what is set out in the referral is vague or confusing. We have made several changes to our website over time so that those thinking of raising a concern are able to get clear information about what we are able to consider and the types of information we find useful when making a referral. We have also dedicated resource to external engagement work to help tackle these issues. We will continue to work on improving the information we provide and the online referral form to help. Making the right decisions at the right time We aim to make clear and well-evidenced decisions at the earliest possible opportunity as we know this is in the best interests of everyone involved and we want to minimise the impact of cases progressing further than is required. We need the right information to make the right decisions at the right time.

Information sharing challenges have been a particular barrier over recent years and this has meant some cases have taken a lot longer for us to investigate than we want.

As mentioned earlier, we took legal action against Police Scotland, and this has started to have a positive impact on the information we can obtain to enable effective Fitness to Teach investigations.

We have also been advocating for change in relation to the information that Disclosure Scotland provides us. We do not get ongoing monitoring information – like criminal convictions – from Disclosure Scotland about the teachers on our Register. We only get a Disclosure Scotland notification where a teacher is placed under consideration for listing as being barred from working with children. This notification does not tell us what the allegations concerned are.

Criminal justice agencies and Disclosure Scotland have all understandably experienced pressures because of the impact of Covid-19. This has affected how long it takes them to respond to our information requests. The criminal justice process has also experienced delays and this has impacted our case timeframes because we usually wait until a criminal process has concluded before we progress the case.

One of the biggest challenges we experience in progressing our cases is getting the evidence required legally to establish what has or has not happened. The context of our casework means that we sometimes need to involve children and young people in our investigations by taking statements from them where the statements they have given in other forums are inadequate for our purposes. We also sometimes need to ask children and young people to give evidence at a hearing because, where their evidence is key, we now experience increased challenge about relying on their statements alone. This tends to happen in the cases that raise the biggest potential public protection concerns. Understandably, the children/ young people and their parents/carers are often reluctant to become involved in our process – they are worried about the impact that our process will have – they do not want to relive traumatic events. Our process also usually comes after others have gone before – criminal as well as employer proceedings have often taken some time. People are fatigued and they want to move on; mental health is a common concern.

In some cases, key witnesses are too young for us to contemplate bringing to a hearing. This creates significant challenges for us getting witnesses to participate and cooperate in our process and therefore getting the evidence required. It adds to the time cases take and can impact on our ability to address the risk that a teacher may present. We find that in cases where we have CCTV footage or similar that has recorded events at the time they happened, these issues are minimised, and we know this is similar to the experience of other professional regulators like us. The quality of investigations carried out before ours also has a real impact on whether we need to involve children and young people in our investigation.

School holiday and closure periods are another factor we have identified that affects progression of a lot of our cases because we find it difficult to get teacher participation in our process at these times or obtain documentation/ information from employers.

We have looked at the average time that it takes us to make decisions in conduct cases at the various process stages since 1 April 2018. We have made decisions about whether to investigate a case (initial consideration) within two to four weeks. We have investigated conduct cases in which no further action has been taken within four to six months. We have gradually reduced these timeframes over the last five years. Cases that have reached the Panel stages have taken much longer and we have seen this timeframe increase over the last five years for the various reasons we have explained. Cases concluded at the Panel stages have been taking, on average, a further one to two years.

Professional competence cases have been taking eight months to conclude on average. Where the recommendation is not challenged and this is indicated at an early stage, cases conclude more quickly, often within three months. We commonly see challenges to recommendations being withdrawn which means the cases take longer than they should, and this is an area we would like to address with partners.

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Conduct cases we have taken regulatory action in

In the conduct cases that we have taken regulatory action in, we have identified the following allegation trends and themes:

• Abuse of a position of trust
• Forming, or attempting to form, inappropriate relationships with learners/young people
• Breaching confidentiality
• Offensive treatment of colleagues, sometimes involving aggression, discrimination or sexual harassment
• Sexual misconduct or indecency (including child sexual abuse and possession of child sexual abuse materials)
• Behaviour which is discriminatory or demonstrates intolerance or prejudice of the background, personal circumstances, cultural differences or values and beliefs of learners
• Attendance at work under the influence of alcohol
• Public expression/demonstration of views through social media or elsewhere that undermines confidence in the teaching profession or infringe the rights of others by being, abusive offensive or inflammatory
• Fraud, dishonesty and exam/assessment related malpractice
• Domestic abuse
• Failures related to safe handling of learners and alleged physical assault.

We have also identified that additional support needs of learners is a big theme in cases and often forms part of the context in some way. We see increasing complexity in cases related to safe handling. These cases raise evidential challenges. It can be difficult to establish whether what has happened has been caused by a lack of competence or negligence or represents a deliberate intention to harm (assault) or recklessness.

Another overarching theme is mental health, whether as a causal or aggravating factor in cases.

Across all our casework we are seeing increasing complexity because we see more cases involving multiple allegations of different types. We also see an increasing complexity in the number and type of procedural matters raised in cases, including requests for privacy and/or anonymity.