CPD Consulation 2016/17

Summary

1. As a regulator the CLC has an important role in setting standards of education and training. In 2013 the CLC made a commitment to review all stages of its education and training provisions including its Continuing Professional Development (CPD) requirements.
2. In November 2016, the Council approved a policy shift in CPD, which moves away from a prescribed number of hours of CPD to an outcome based approach which concentrates on the impact of a CLC Lawyer’s learning and their ability to provide a competent service.
3. This approach makes each CLC Lawyer responsible for deciding the scope and volume of CPD that they should carry out.
4. This consultation sets out the CLC’s new way of regulating CPD, which is intended to replace the current scheme.
5. The broad principles of the new scheme are as follows:
   1. The new scheme removes the necessity to complete a minimum number of hours each year and is instead an outcomes focused scheme that will allow CLC Lawyers to identify and manage their own training and development needs according to their area of practice and work/market demands
   2. Entries will need to record either planned or unplanned activities (with a minimum of 6 planned entries to be completed in each CPD year), and of the 10 CPD entries required, at least one entry in the CPD record will need to relate to Operational Risk (further information is provided at paragraph 50-54).
   3. The CLC will continue its current monitoring and sampling of CPD records to ensure overall compliance with CPD requirements, but will introduce new assessment criteria to ensure records are assessed consistently and fairly across the board.
6. The CLC is not providing the draft CPD Code at this stage, since this is dependent on the responses to the consultation.
7. The changes proposed are in line with the recommendations of the Legal Education and Training Review and the Guidance published by the Legal Services Board.
   

   Questions Do you agree with the proposed new definition for CPD? If not please explain why. Do you agree that changing the current CPD scheme to a more outcomes based scheme (with an input element) will give more encouragement for CLC Lawyers to continue improving their skills? If not please explain why. Do you agree that CLC Lawyers (whether as managers or employees) should have the same CPD requirements? If not please explain why. Are there any challenges with the new scheme?  If you said yes please outline your comments. Do you have any comments on the draft CPD practice note at Annex 1? If you said yes please outline your comments. Do you agree that requiring CLC Lawyers to follow the reflective cycle for all planned CPD activities will ensure that the CPD activities chosen will be relevant to the development needs and practice of CLC Lawyers? If not please explain why. Do you agree that CLC Lawyers should also be able to count knowledge and skills they have learnt or developed whilst carrying out their fee earning work? If not please explain why. Do you agree that there should be an annual compulsory operational risk requirement as part of the revised CPD scheme? If not please explain why. Do you agree with the new assessment criteria? If not please explain why. Are there any other impacts (positive or negative) which the CLC should take into account? If you said yes please outline your comments. The CLC welcomes any views on the extent to which adjustments would need to be made to existing systems in order to accommodate the new approach?

Responding to this Consultation

8. You are invited to respond to our ONLINE CONSULTATION RESPONSE QUESTIONNAIRE.
9. When you respond please give your name and address and your status, (job or professional title) or professional qualification.
10. The CLC reserves the right to publish any response and to refer to it specifically in any further document it publishes following this Consultation. If you wish your response to be treated as confidential please let us know when you respond.
11. You can also send your responses by post to:The Council for Licensed Conveyancers

    CAN Mezzanine

    49-51 East Road

    London

    N1 6AH

    Or by to DX 42615 Cheapside

    Submission Deadline: 5pm Tuesday 7th March 2017

Statutory Framework

12. The CLC was established by the Administration of Justice Act 1985 (AJA) and is an approved regulator under the Legal Services Act 2007. The CLC’s role is to safeguard the public interest and consumers by regulating providers to deliver high quality and accessible legal services.
13. As an approved regulator the CLC ‘must, so far as is reasonably practicable, act in a way which is compatible with the regulatory objectives’, namely:
    1. Protecting and promoting the public interest;
    2. Supporting the constitutional principle of the rule of law;
    3. Improving access to justice;
    4. Protecting and promoting the interests of consumers;
    5. Promoting competition in the provision of services by ‘authorised persons’;
    6. Encouraging an independent, strong, diverse and effective legal profession;
    7. Increasing public understanding of the citizen’s legal rights and duties;
    8. Promoting and maintaining adherence to the professional principles.
14. The ‘professional principles’ are:
    1. That authorised persons should act with independence and integrity,
    2. That authorised persons should maintain proper standards of work,
    3. That authorised persons should act in the best interests of their clients,
    4. That persons who exercise before any court a right of audience, or conduct litigation in relation to proceedings in any court, by virtue of being authorised persons should comply with their duty to the court to act with independence in the interests of justice, and
    5. That the affairs of clients should be kept confidential.
15. The CLC is also required to ‘have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed’.

Introduction

Purpose of consultation

16. The publication of the Legal Education and Training Review (LETR) report in July 2013 signalled the start of a significant programme of reform of the CLC’s approach to education and training. Following the LETR recommendations on training provision within the legal sector, the CLC is carrying out a review of its Continuing Professional Development (CPD) requirements.
17. During the course of the review, consideration has been given to the longer-term direction of the CLC’s current CPD scheme and the possibility of adopting a more outcomes-based approach to CPD regulation. There is an increasing body of evidence that the long-established and most commonly used ‘input’ based system, focused on compliance with a minimum number of hours has a limited effect on improving professional competence and performance.
18. Conversely, evidence suggests that imposing a more ‘outcomes based system’ that encourages and rewards voluntary CPD activity, over and above any necessary level of compulsion, is a more effective means of ensuring good practice and continuing competence.
19. The CLC has devised a new outcomes based CPD system which dispenses with the need to complete a minimum number of hours, and instead encourages reflective learning, so the CLC Lawyer carries out their own assessment of the impact CPD has on the development of their technical and management skills.
20. This consultation paper sets out:
    1. The background to this consultation;
    2. The CLC’s new approach to CPD; and
    3. An assessment of the merits and potential disadvantages to the new approach
21. To protect the public, the CLC has paid particular attention to developing a CPD scheme that will add value for the profession and will maintain high standards within their profession.
22. The CLC welcomes your views on the proposals.

Background

23. The CLC is a public interest regulator. The approach adopted by the CLC is outcomes focused and risk based. The CLC operates within a framework which requires the CLC to meet the regulatory objectives set by the Legal Services Act (the Act) and ensure that best regulatory practice is adopted by those it regulates.
24. The CLC’s aim is to ensure that the public have access to competent legal services provided by professional property lawyers tailored to their needs. The CLC achieves this through a variety of regulatory tools including CPD.
25. The CLC believes it should move away from the current approach of a prescribed number of CPD hours and replace this with a scheme that places greater responsibility on the individual to identify what training they require for the effective and competent delivery of legal services.

Current CPD requirements

26. The CLC Glossary defines CPD as:
    ‘The means by which members of the regulated community maintain, improve and broaden their knowledge and skills, keeping themselves up to date with the latest development in the profession and its markets and so enabling them to meet their full potential and provide Clients with high levels of service.’
27. This definition has three core elements, namely:
    1. CLC Lawyers maintain, improve and develop relevant knowledge and skills in their area of practice;
    2. CLC Lawyers keeping up to date with new developments in that area; and
    3. CLC Lawyers giving confidence to clients and the public that they are competent in their area of practice.
28. The present system requires:
    1. Managers to undertake 12 hours in each CPD year,
    2. Employed licence holders to undertake 6 hours in each CPD
    3. Managers who are licensed to provide conveyancing and probate services undertake 4 additional hours each year; and
    4. Employed licence holders who are licensed to provide conveyancing and probate services undertake 2 additional hours each year
29. The weaknesses of the present system are as follows:
    1. It can operate as a tick-box exercise without a clear focus on how CPD might be relevant to the individual or practice and how it might assure competence. This in turn can lead to CLC Lawyers seeking to fulfil their CPD requirements by attending courses or events that are immediately available or convenient, rather than activities that are relevant to their practice and will positively support their competence and development.
    2. Some of the most effective ways of developing relevant knowledge and skills, e.g. on the job learning, is not generally accepted.
    3. It enables the CLC to police the number of hours completed but makes it far more difficult for the CLC to assess if the CPD completed by the individual is relevant to their professional development.
30. The CLC is not satisfied that the current approach to CPD and its regulation is an effective way to assure competence and maintain high standards. Consequently, the CLC’s proposed scheme is intended to be sufficiently flexible, so that it can be more specifically tailored to the individual’s professional needs and CLC Lawyers can better demonstrate their on-going competence through appropriate and targeted CPD.
31. The CLC’s key objective in developing any new approach to CPD is to provide assurance, for the benefit of clients and the public that CLC Lawyers can deliver competent legal services. The CLC’s secondary objective to ensure that any new approach:
    1. Encourages CLC Lawyers to follow the regulatory objectives[1]
    2. Provides a credible system with which the profession can maintain, improve and extend their competence and so assist in protecting the consumer and wider public.
    3. Places responsibility for deciding the nature, scope and volume of CPD on individual CLC Lawyers
    4. Allows the CLC to focus its regulatory attention on those who pose significant risk to consumers and to the public interest.
32. The CLC proposes to:
    1. Change the definition of Continuing Professional Development;
    2. Introduce a new outcomes based CPD scheme; and
    3. Enhance the monitoring and sampling CPD framework.
33. In creating a new regulatory initiative, the CLC is satisfied that its new approach actively promotes the regulatory objectives.

Proposal: Change the definition of Continuing Professional Development

34. When considering the current definition of CPD (as noted in paragraph 13), and any possible amendments which may be made to it, the CLC considered the Regulatory Objectives as set out in the Act. In particular the CLC considered the objective to:
    1. Protect and promote the public interest
    2. Protect and promote the interest of consumers
35. In considering these objectives, the CLC has identified the purpose of CPD to be:
    1. To maintain and develop a CLC Lawyers ongoing competence and professional performance;
    2. To give confidence to the consumer and the wider public through the demonstration of ongoing competence and professionalism;
    3. To contribute to the advancement of knowledge, skills and good practice within the profession; and
    4. To raise the reputation of the profession
36. To reflect these purposes and overall objectives of CPD. The CLC proposes to replace all current CLC definitions of CPD with a new amended definition, namely:
    ‘Any activity undertaken by a CLC Lawyer which will:
    1. Maintain, improve or develop the skills, knowledge and competence necessary for the execution of their legal responsibilities;
    2. Ensure that consumers and the public remain confident in the profession; and
    3. Contribute to the sharing of knowledge, skill and good practice within the profession.’
37. The CLC is interested in the views of the regulated community on whether the proposed definition of CPD correctly reflects the appropriate expectations and objectives of CPD.

Proposal: Introduce a new outcomes based CPD scheme

38. One of the main recommendations of the LETR report was that regulators should adopt a benefits- led model of CPD which focused on how participants plan, implement, evaluate and reflect on their training needs and subsequent learning.
39. The CLC reflected on the recommendations put forward by the LETR and has devised a new outcomes based scheme.
40. The new scheme is explained in the CPD practice note in Annex 1.
41.  The practice note explains the CPD requirements and will be supported by other activities (such as webinars) to assist the regulated community in planning and selecting appropriate CPD. CLC Lawyers will be taken through the new scheme, advised on how CPD activities should be recorded and on the requirements to keep supporting documentation safe for a minimum of 6 years.
42. The CLC believes that the new scheme will address one of the main problems with the current CPD scheme which is that a requirement to undertake a minimum number of hours of CPD each year creates a culture concerned not with the broader benefits derived from continuous training but with compliance with the minimum requirement. This focus on compliance can distort professional development within the profession and undermine the overarching objective of encouraging a high level of professional competence
43. The broad principles of the new scheme are as follows:
    1. The new scheme removes the necessity to complete a minimum number of hours each year and is instead an outcomes based scheme that will allow CLC Lawyers to identify and manage their own training and development needs according to their area of practice and work/market demands.
    2. The CLC recognises that a scheme which is purely outcomes based can be difficult for regulators to monitor. For this reason, whilst predominantly outcomes based in nature, the new CPD scheme will contain an ‘input’ component. Namely, that CLC Lawyers will be required to include a minimum of 10 entries on their CPD record.
    3. An entry on a CPD record is essentially a note of knowledge or skill that the CLC Lawyer has acquired following the CPD activity that was undertaken – this may be something that an individual did not know before or an area of law or a skill relevant to their practice that they have refreshed. CLC Lawyers will also be allowed to claim more than one entry for the same CPD activity if they have acquired more than one discrete area of knowledge or skill from the activity undertaken.
    4. Entries will need to record either planned or unplanned activities (with a minimum of 6 planned entries to be completed in each CPD year), and of the 10 CPD entries required, at least one entry will need to be completed in Operational Risk (further information is provided at paragraph 50-54).
    5. The CLC will continue its current monitoring and sampling of CPD records to ensure overall compliance with CPD requirements, but will introduce a new assessment criteria to ensure records are assessed consistently and fairly across the board.

    Questions

    2. Do you agree that changing the current CPD scheme to a more outcomes based scheme (with an input element) will give more encouragement for CLC Lawyers to continue improving their skills? If not please explain why.
    3. Do you agree that CLC Lawyers (whether as managers or employees) should have the same CPD requirements? If not please explain why.
    4. Are there any challenges with the new scheme?  If you said yes please outline your comments.
    5. Do you have any comments on the draft CPD practice note at Annex 1? If you said yes please outline your comments.

Recording CPD

Planned CPD

44. In order to complete planned activities, CLC Lawyers will be required to reflect on their area of practice, plan activities which will maintain, improve or develop their knowledge and skills; implement the outcome of their plan through participation in relevant CPD activities and evaluate how the activity impacted on their work and practice. This process is the ‘reflective cycle’ which is summarised below:
    
45. The reflective cycle is an important part of the new scheme because it encourages CLC Lawyers not to waste time or money on CPD activities that do not help them take greater ownership of their development and training needs.
46. To ensure the process is as simple and straightforward as possible, the CLC has developed a suggested CPD Planning and Evaluation Document for all planned activities (See Annex 2). A different template achieving the same outcomes will be equally acceptable.
47. The ‘reflect’ and ‘plan’ component of the planning and evaluation document should be completed at the beginning of the CPD year, though this may be reviewed during the course of the year to ensure it remains relevant for the CLC Lawyer’s own needs. However, it is possible that CLC Lawyers may identify or change their learning objective throughout the year as a result of reflecting on their on-going relevance.

Unplanned CPD

48. With an emphasis on reflection on practice and undertaking relevant CPD, the CLC proposes that under the new scheme, CLC Lawyers will also be able to record learning from their fee earning work, for example, research that they need to complete for a client in a new or unfamiliar area of law. Specific learning can be listed and included in the CPD record up to the maximum of 4 from the 10 entries required overall.
49. As with all planned activities, CLC Lawyers will need to keep evidence of any unplanned activity which will need to be evaluated to ascertain its benefits. To help with this, the CLC has developed a suggested CPD Evaluation Document for CLC Lawyer to complete for any unplanned activities (See Annex 3)

Operational risk entry

50. One of the regulatory aims set out in the Regulatory Standards Framework requires regulators to have ‘a robust understanding of the risks to consumers associated with legal practice and the ability to profile the regulated community according to the level of risk ‘.
51. As the specialist property regulator, the CLC expects CLC Lawyers to be alert to the highest areas of risk faced by the consumer and by the practice, and how they can be mitigated. The CLC has considered how its CPD scheme could ensure that the regulated community also had a robust understanding of these risks.
52. In order to embed this requirement for CLC Lawyers, operational risk is being introduced as a compulsory element into annual CPD requirements. It is therefore proposed that one entry on the record each year will be on the subject of operational risk.
53. The CLC has provided a recommended list of some of the most significant operational risk areas within Conveyancing and Probate. The list will be subject to regular review and updates in accordance with the continuously changing market but currently include: 
    

    Operational Risk Area	Example of Operational Risk Activity
    Money Laundering	Improving knowledge and understanding of The Money Laundering Regulations 2007 – 2017 through a course, workshop or seminar etc.
    Data Protection	Refreshing your knowledge and understanding of the Data Protection (Processing of Sensitive Personal Data) Order 2000 through in-house training, conference or workshop etc.
    Cybersecurity	Developing your cyber security awareness skills through a cybercrime seminar.
    Mortgage Fraud	Refreshing knowledge of warning indicators through reading guidance from the Council of Mortgage Lenders or developing knowledge of the duties owed to the purchaser and/or lender when fraud is suspected.
    Protecting Client’s Money	Improving your familiarity of the key parts of the CLC Accounts Code and Guidance, the areas to be careful of when handling client money and the types of things that go wrong leading to breaches of the Accounts Code. or Gaining a better understanding of appropriate controls on the client account, including who can access it, when, and how.

54. The areas identified are indicative only. Consequently any other topic that refreshes or develops an individual’s knowledge or skills within the subject of operational risk will also be welcomed.

CPD record sheet

55. At the end of each CPD year, CLC Lawyers will also be required to complete a CPD record sheet (See Annex 4).The record should contain at least 10 entries (at least 6 of which should come from planned activities).
56. Within the CPD record sheet, CLC Lawyers will be required to include the following information:
    1. Area of development
    2. Learning objective
    3. Date to be completed by
    4. Date completed
    5. Learning outcome achieved
    6. How and whether what has been learnt can/has been put into practice.
57. An individual will only need to provide their completed CPD record sheet to the CLC together with all other necessary documents and evidence if their record is called for sampling.
    Questions
    6. Do you agree that requiring CLC Lawyers to follow the reflective cycle for all planned CPD activities will ensure that the CPD activities chosen will be relevant to their development needs and practice? If not please explain why.
    7. Do you agree that CLC Lawyers should also be able to count knowledge and skills they have learnt or developed whilst carrying out their fee earning work? If not please explain why.
    8. Do you agree that there should be an annual compulsory operational risk requirement as part of the revised CPD scheme? If not please explain why.

Proposal: Enhance the monitoring and samplingCPD framework

58. The role of the CLC, as with other regulatory bodies, is to license and regulate CLC Lawyers who comply with its Regulatory Requirements. It is important as an assurance to both consumers and the wider public that only CLC Lawyers who are able to demonstrate current competency should continue to be licenced by the CLC. Ensuring CLC Lawyers engage with CPD is one of a number of mechanisms by which the CLC can ensure on-going competence. As with the existing CPD scheme, the proposed scheme will be compulsory for all CLC Lawyers so that the CLC is able to impose sanctions for non-compliance.
59. The CPD year will be changed from 1 November -31 October to 1 July-30 June to ensure that those who have been unable to meet all their CPD requirements are allowed sufficient time to remedy the shortfall before the licence renewal date of 31 October.The CLC will carry out random sampling of CPD records to monitor compliance with the CPD requirements.
60. A CLC Lawyer selected for sampling will need to provide:
    1. CPD record sheet
    2. The planning and evaluation document for each planned activity with all planned activity evidence documents; and
    3. All unplanned activity evidence documents and accompanying evaluation document
61. The CLC will review CPD records against assessment criteria set by the CLC (see CPD Practice Note).
62. The assessment criteria has been formulated to ensure that all CPD records are assessed fairly and consistently and to provide CLC Lawyers with a framework to help them to understand how to complete their CPD requirements in a compliant way.
63.  In line with the CLC’s risk-based approach, the CLC aims to work collaboratively with CLC Lawyers to make sure they satisfy their regulatory requirements. If a CPD record is assessed as not having been completed appropriately or satisfactorily the CLC will in the first instance, seek to agree with the individual concerned an action plan to address the deficiency, and where this does not achieve the desired outcomes will consider disciplinary proceedings.Questions
    9. Do you agree with the new assessment criteria? If not please explain why.

Assessment of the merits and potential disadvantages to the new approach

Question

10. Are there any other impacts (positive or negative) which the CLC should take into account? if you said yes please outline your comments.

Timescales

64. The timescales for implementation of any new approach will depend largely on the responses received through this consultation and on the final approach adopted. It is the CLC’s intention, that any new approach would be implemented at the end of an existing CPD year to avoid the need for transitional arrangements and any disruption to CLC practices.
    Question
    11. The CLC welcomes any views on the extent to which adjustments would need to be made to existing systems in order to accommodate the new approach?

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    [1] S.1 Legal Services Act 2007

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    [SB1]see earlier text