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SRA Continuing Competence - are you competent?

Are you competent?


Introduction

On the 1st November 2017, the CPD requirements for around 138,000 practising solicitors and their colleagues changed significantly away from an hour based regime to a competency based scheme. 

For all firms, this will mean in varying degrees, changes in both their culture and systems for dealing with the new requirements. This short article will explore the new requirements and the practical ways that compliance can be ensured.

Regulation

Under the umbrella of the Legal Services Board, the SRA regulates the solicitors' profession through the requirements of the SRA Handbook, currently in its 18th edition [1st November 2016].

Changes in regulation

The regulation of the profession is currently under review and the outcome is intended to be: increased access to the law, reduced regulatory burden manifest in a drastic reduction in the size of the SRA Handbook and a shortening of the SRA Code of Conduct [the Code]. 

Also, there is a move towards allowing solicitors to practice in non-regulated entities which will mean a two-tier regulation at solicitor and entity levels.

Why the need for change in CPD?

The need for change to the system was based on the flaws in the old system.  Firstly, the requirement to undertake a minimum of hours per year was no guarantee of competence and lead to inappropriate CPD being undertaken i.e. based on compliance rather than competence. 

Some solicitors merely ticked a box to confirm that they had undertaken the required 16 hours but this did not ensure that the CPD undertaken was relevant to a solicitors' area of practice or their personal competency needs. 

The intended outcomes and benefits of the new scheme are to ensure clarity on what solicitor competence looks like, flexibility of how competency needs are addressed and reduce the regulatory burden on solicitors.

Competence underpinning

Of the 10 principles in the Handbook, the most relevant to Continuing Competence is number 5: You must provide a proper standard of service to your clients". For a reference in the Code, we should look to Chapter 7 and Outcome 7.6: "you train individuals working in the firm to maintain a level or competence appropriate to their work and level or responsibility".

What are the stakeholders saying?

The SRA has stated that the new scheme is not a soft option for solicitors, some of whom may be thinking: "great, I do not have to do CPD anymore!". 

The result of a Law Society survey stated that three quarters of those who responded said they will carry on as before.  It is impossible to see how solicitors can deal with the new approach to CPD by carrying on as before. 

They may decide to take the convenient option of staying with a 16-hour based scheme but why and how those hours are spent must surely change?

Finally, the indemnity insurers are very interested in how solicitors and their firms approach the new requirements given that competence [and compliance] is at the heart of dealing with many negligence claims. 

They will be asking searching questions about solicitor competence and the provision of evidence to support any claim regarding competence.

The Reflective Learning Cycle

The new scheme is based on a tried and tested model of: REFLECT - PLAN - ACT - EVALUATE.  The cycle begins with reflection when the a solicitor will consider his/her practice and the areas in which they are performing well and others where they need to improve. 

Reflection will include consideration of legal skills and knowledge as well as competence in softer skills where the solicitor has management and supervision responsibilities.  

Reflection will require some honesty and an investment of precious time. The obvious time for this to take place is around annual appraisal time but for those who have such a system in place, they will probably need to change to ensure the reflective learning cycle is accommodated effectively. 

Planning is easier with an effective period of reflection and is simply the formation of a plan, typically annual, for addressing the competency needs identified during reflection.  The plan describes the why, what and how you are going to address competency needs.

There is no point is having a plan if you are not going to execute it!  Therefore, act is simply doing what you say you were going to do in your plan and keeping the relevant records of such actions. 

As actions are taken, it is important that there is process of evaluation to ensure that the actions taken have addressed the competency need[s] that they were intended to address.

This ensures we do not simply tick the compliance box to confirm attendance but that we consider whether the desired outcome was achieved i.e. a need was satisfied. If not, further action may be required.

What does competence look like?

There are three documents that solicitors must consider during their reflection:

Statement of solicitor competence, the Threshold Standard & Statement of Legal Knowledge

These cannot be considered in isolation and whilst they contain some overlap, they are a package and should be considered holistically. 

The statement of solicitor competence is generic and underpinned by the definition of competence: "the ability to perform the roles and tasks required by one's job to the expected standard" [Eraut & du Boulay, 2001]. 

The statement is presented in 4 sections dealing with: [1] Ethics, professionalism & judgement [2] Technical legal practice [3] Working with other people [4] Managing themselves and their own work. 

There are 91 separate requirements to be considered when reflecting on competence and if used as a competence checklist, a solicitor should be able to tick each of these boxes!  

The Threshold standard identifies 5 levels of solicitor competence and a newly qualified solicitor must have reached level 3 upon qualification.  The consideration of the threshold standard by supervisor and supervisee will be an interesting challenge for many but is an important element of risk and compliance within the remit of the COLP.  

The statement of legal knowledge is specific to different areas of law and identifies the knowledge that any solicitor should have attained at the point of qualification. There are 89 requirements to be considered by newly qualified solicitors. 

Copies of these documents are available to download from the SRA website [www.sra.org.uk].

What activities will count towards CPD?

The reflection part of the cycle should provide the "what" and "why" of competence whereas the plan should provide the "how". 

Without the former, the latter is meaningless.  Until recently, any training provider would tell you that October was their busiest month of the year i.e. when solicitors ticked the "how" box to satisfy the "why" which was simply to meet the 16-hours requirement.  

Now SRA accredited providers and courses are a thing of the past which means that CPD activities can be flexible and more importantly, appropriate to individual needs.
Attendance on conferences and courses will continue to be a relevant learning and development activity but others may be just as relevant and possibly more cost [time] effective.

Online resources, webinars, in-house events, networking events [with a training element e.g. guest speaker], mentoring, coaching, shadowing, supervision and attending meetings with a training element could all be captured as activities that address competency needs.

This may mean that record keeping will change as solicitors create a portfolio of evidence of compliance. This should not be onerous but may mean more activities will be captured, recorded and evaluated than was previously the case.  However, should the regulator or indemnity insurer come knocking, the evidence of competence should be at hand.

What will happen at the end of the CPD year?

The CPD year remains unchanged and runs from 1st November to 31st October.  At the end of the CPD year, solicitors will make the following declaration when they apply for their practising certificate to be renewed: "I have reflected on my practice and addressed any identified learning and development needs". 

Those firms that use the bulk renewal process can continue to do so and will probably have their own internal declaration requirements dependent upon the level of centralisation applied to competency requirements. 

Finally, the declaration that is made on 31st October 2017 will relate to the current CPD year [1st November 2016 to 31st October 2017] and thereafter will confirm their competence at the end of the year for that year.

Disclaimer

This article is provided for information only in the hope that it will prompt discussion and action within firms and amongst solicitors regarding their competence. 

No liability is accepted for any consequence arising from any action or decision taken or not taken resulting from the content of this article.  Nothing in this article should be taken as advice.

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