Are you competency confident?

Late last year the Solicitors Regulation Authority (SRA) issued its application to the Legal Services Board (LSB), setting out its proposed changes to the rules relating to continuing professional development (CPD). That application called for the LSB to approve reforms abolishing what the SRA called ‘prescriptive, blanket, and disproportionate rules’.

Where CPD is concerned, those rules included a requirement for solicitors to sit through at least 16 hours of training annually, which started to be phased out from April 2015, with solicitors able to choose to adopt the new approach until the old regime is completely phased out on 31 October 2016.

Relaxed approach

The reforms favour a more relaxed approach and, as an alternative, proposed a system requiring solicitors to tick an annual CPD declaration (accompanying their practising certificate renewal), confirming that they have ‘reflected’ on their practice and considered their training needs.

But what does it mean to reflect? And are you confident enough to declare to the SRA that you have reflected and are competent, particularly given that ‘non-compliance could lead to disciplinary procedures and/or delays in the issue of a practising certificate’? Is one tick-box system being replaced by another? How will the SRA ensure compliance with the new regime, given its objective to provide the profession with ultimate freedom? How have/will professional indemnity insurers react to the issue of complete control being handed over to their insureds? And, will anyone ultimately notice the changes?

These are just some of the many questions and concerns aired since the SRA first consulted back in early 2014. But now that the reforms have started to take shape, attention is turning to what the SRA are saying in terms of policing the revised scheme.

The SRA’s application sheds some light on this question. In short, it seems that if you are not on the SRA’s radar (being investigated) then you will likely escape their attention.

The SRA have said - probably to try and alleviate concerns raised that some within the profession will view the reforms as a chance to reduce or even eradicate their training budgets - that they will take a ‘realistic and pragmatic approach to regulating competence’. The SRA have acknowledged that it would not be ‘possible, or desirable, to pick up every instance of incompetence’, but that they would seek ‘proactively to identify any significant risks or trends’.

The SRA went on to identify three instances which might require a regulatory intervention:

• Firm-based competence: Where the SRA identify a ‘cluster of issues’, which may relate to a particular firm, they will investigate whether the firm had ‘appropriate systems for identifying development needs, training staff, and evaluating impact of learning’” in place. If no systems exist, the SRA’s regulatory action will be more robust.
• Thematic or sector issues: The SRA will, where evidence of incompetence has been picked up in a particular sector through intelligence gathering, media scanning, etc., utilise a range of regulatory tools at their disposal.
• Individual competence: The SRA will view an individual’s failure to ‘demonstrate that they have taken a responsible approach to their learning and development’ as an aggravating factor in relation to enforcement action.

So, what does this mean? It looks like the SRA will only pick up on competency issues when something else goes wrong (although the SRA has said that they ‘may ask to see your training record at any time’). It seems, however, that those firms, sectors, and individuals already on the SRA’s radar will be the ones who will need to ensure that they have appropriate systems in place and can evidence that they have thought about their development.

Appropriate punishment

Will this approach encourage firms to invest less in training and development? Certainly, it would seem that cutting training budgets and having a workforce not up to speed on developments will likely result on firms ultimately gaining the SRA’s unwanted attention. But it remains to be seen how the SRA will use a lack of ‘reflection’ and systems in place when deciding on the appropriate punishment of those guilty of incompetence.

Maybe, if the SRA were to increase the level of their fining powers from the current £2,000, firms may take more notice to ensure they can document the training needs of staff. There is, of course, always the added fear that the SRA will leave everyone to their own devices, then beat everyone up in three years’ time with the benefit of hindsight. SJ

Jennifer Haren is a solicitor at Weightmans

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