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Transitional arrangements for the CPD changes in November 2016 22 October 2014

You will remember that the CPD regime is changing with effect from November 2016 (or, as the Solicitors Regulation Authority (SRA) puts it, there is to be “a new approach to continuing competence”).

Last week (on 15 October) the SRA issued a bulletin on the changes which you can see here:

Moving towards a new approach to continuing competence: Information for the CPD year 2014/15

The new approach will need to be adopted by all solicitors from 1 November 2016.  It will require us to comply with Principle 5 in the SRA’s Code of Conduct 2011 (“You must provide a proper standard of service to your clients”) by:

  • reflecting on the quality of our practice by reference to the SRA’s proposed Competence Statement for solicitors (see below) and addressing identified learning and development needs; and
  • making an annual declaration that we have considered our training needs and taken measures to maintain our competence.

This will replace the current requirement that we must undertake 16 hours of CPD annually.

You can read my blog article dated 24 May 2014 to find out more about the changes.

Transitional provisions

The SRA must know that solicitors love transitional provisions, so they have given us some.  We can choose to move to the new approach from 1 April 2015 – nineteen months ahead of the changeover date.  From that date, we have a choice whether to follow the current approach or the new approach.  And we don’t need to tell the SRA which we are doing !

Don’t rely just on what I have written in this blog because (1) it’s only a summary (2) it’s only my understanding and (3) I don’t think it’s been embedded in law yet so I don’t there are any source materials to consult.

Current approach

Those of us who choose to continue with the current approach until November 2016 must continue to obtain 16 hours of CPD each year (November to October) and certify as such.

Adopting the new approach early

This is complicated, so pay attention.

If you adopt the new approach before 31 October 2015, you will need to provide a declaration that you have considered your learning and development needs and taken measures to maintain your competence for the 2014/15 and 2015/16 practising years.

If you adopt the new approach after 31 October 2015, you will need to provide a declaration that current CPD requirements have been met for the 2014/15 practising year.  You will also need to provide a declaration that you have considered your learning and development needs and taken measures to maintain your competence for the 2015/16 practising year.

What will happen if you decide to adopt the new approach from, say, 1 April 2015 (ie part-way through a practising year)?  What happens in the first five months of the 2014/15 practising year?  The SRA’s document merely says that “we do not expect solicitors to pro rata (sic) their 16 hours CPD requirement before moving to the new approach”.  What this means is a mystery to me at the moment.  It seems to suggest that no CPD at all is needed between November 2014 and March 2015, but this sounds so unlikely that it surely cannot be what the SRA intends.

This is all subject to four caveats.

First, details of the form of the declaration that we will need to provide annually are awaited.

Secondly, the SRA says that in Spring 2015 it will be publishing a toolkit outlining good practice in learning and development.  That is all that we have been told at the moment.  Will it first be issued in draft so that we comment on it?  Who knows.

Thirdly, from 1 November 2014 it appears that it will no longer be necessary for solicitors to undertake any accredited training – even though the regulations that lay down this requirement will not have been amended by 1 November (so this is something of a mystery).  This is an extremely complex and widely misunderstood requirement.  Currently at least four hours (out of the required 16 hours) must be accredited training lasting at least an hour, provided by accredited trainers or within organisations that have been accredited (although certain organisations – including those that have Lexcel or Investors in People accreditation –  seem to be exempt from this requirement by regulation 17 of Part 3 of the Solicitors Training Regulations 2011).  From 1 November 2014 the SRA will cease to recognise accredited training and will no longer accept applications from trainers for accreditation (this particular change is a good thing for Falco Legal Training Limited, which has never been accredited, because it would cost me money and consume my time).

Fourthly, we are awaiting something called the “Competence Statement” from the SRA, defining the competencies that practising solicitors are required to maintain.  I have not yet seen a draft version, but my suspicion is that it is going to be extremely vague, saying that solicitors need to be honest and truthful and that kind of stuff and listing a few specific competencies such as understanding the money laundering responsibilities.  But I do not think that it is likely to go into any detail in relation to, say, landlord and tenant law.  If a firm wants to say that a 2 year PQE has to understand the security of tenure provisions in the Landlord and Tenant Act 1954, that will be for the firm to stipulate.  But where the Competence Statement does identify a particular risk, the SRA says that it will “expect solicitors to be able to demonstrate that they have considered their learning and development needs and taken appropriate steps to address them, so as to ensure a proper standard of service for clients”.

So now we await the Competence Statement and the promised toolkit outlining good practice in learning and development.  They are expected in Spring 2015.

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