Uncategorized 16 - Hunnings Consultancy Limited

From 2nd November 2020 it will be complusory for solicitors applying for Probate to use the on-line portal. At present only about a third of such applications are made through the portal - so this will be a big change for the profession. Here's a link to the Statutory Instrument if you are interested: https://www.legislation.gov.uk/uksi/2020/1059/pdfs/uksi_20201059_en.pdf

SRA Guidance: Taking money for your firm's costs

It is very helpful for the SRA to publish this. Of course it may be viewed on their website, but for ease of reference we have reproduced it here as well.

Published: 14 September 2020

Status

This guidance is to help you understand your obligations and how to comply with them. We may have regard to it when exercising our regulatory functions.

Who is this guidance for?

This guidance is for all SRA-authorised firms and individuals that receive money and assets from clients and third parties and use that money to pay fees and disbursements.

Reporting accountants will also want to consider this guidance when assessing whether a firm has put a client’s money at risk.

Purpose of this guidance

This guidance is to help you understand what we expect when you are:

receiving money for your costs
transferring money for your costs from your firm’s client account
reimbursing your firm for money spent on behalf of the client

and how obligations set out in the SRA Accounts Rules (the Accounts Rules) must be read in light of your wider obligations set out in the SRA principles and codes of conduct.

The SRA’s Standards and Regulations

Consumer confidence in the legal services market is underpinned by an expectation that all money and assets that has been entrusted to a law firm or an individual we regulate will be properly safeguarded.

This obligation is reflected in paragraph 5.2 of the Code of Conduct for Firms and equivalent provisions in paragraph 4.2 of the Code of Conduct for solicitors, RELs and RFLs.

You must also act in accordance with our principles. These and our codes of conduct are underpinned by our Enforcement Strategy, which explains in more detail our approach to taking regulatory action in the public interest. The following principles are most relevant to this guidance:

Principle 2: You act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons.

Principle 4: You act with honesty.

Principle 5: You act with integrity.

Principle 7: You must act in the best interests of each client.

You are expected to be open and transparent in your dealings with the client or third party who has entrusted you with their money.

We expect firms to make sure that clients receive the best possible information about how their money will be used or is being used during the course of a matter. The codes of conduct makes it clear that you must give clients information in a way they can understand so that they can make informed decisions about the services they need, how their matter will be handled and the options available to them (paragraph 8.6 of the Code of Conduct for solicitors, RELs and RFLs and paragraph 7.1 of the Code of Conduct for Firms).

Paragraph 2.1 of the Code of Conduct for Firms sets out that you should have effective governance structures, arrangements, systems and controls in place that ensure compliance with all of the SRA's regulatory arrangements. We therefore expect you to have in place systems and procedures which help achieve the objective of safeguarding money and assets entrusted to you. These obligations apply regardless of the size and makeup of your firm. The effective controls and procedures a firm has in place should act as an assurance for consumers and give them confidence that money that they have entrusted to you will be kept safe.

In many firms those responsible for compliance with the Accounts Rules might sit in a finance team that focuses solely on compliance with the Accounts Rules. All those in a firm that are responsible for dealing with money and assets entrusted to a firm must understand their wider obligations as set out in the Principles and the codes of conduct as well as ensuring compliance with the Accounts Rules.

General: receiving money from clients

Firms can receive money in advance from clients and third parties for a range of reasons.

For example:

for their legal fees, based on an estimate of their likely costs or as a fixed fee
for unpaid disbursements, such as Counsel’s or expert’s fees, or
in relation to the transaction on which the firm is acting for a client, such as money for the deposit on a house purchase to enable contracts to be exchanged.

All of these types of money are client money (as defined in the Accounts Rules) and need to be held in a client account (subject to some exceptions - see rule 2.2 and 2.3 of the Accounts Rules). The money must be kept separate from the firm’s own money which will be held in its own business account (rule 4.1).

In the majority of transactions, firms send a bill of their costs to the client after completion of the matter on which they are instructed or as an interim bill, if the matter is likely to be a lengthy one. When payment in settlement of that bill is received, the firm can properly pay that money into the firm’s business account. As our codes make clear and prior to the delivery of any such bill, we expect the firm to have informed its client about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses, the likely overall cost of the matter. The bill should not come as a surprise to the client.

In some cases, however, firms may request payment of their costs in advance of work being done. It is acknowledged that cash flow issues are a common challenge which many firms have to deal with on a daily basis. Requesting or billing for costs in advance is permissible under our Accounts Rules, provided the firm is always acting in accordance with our Standards and Regulations and in particular safeguarding money that it has been entrusted with.

We set out below the factors that you should bear in mind when requesting payment for costs in advance and dealing with such payments subsequently.

Billing in advance for costs

A firm might wish to consider sending a bill to a client for their anticipated fees and disbursements – i.e. not limited to incurred costs – with a view to paying the money received in payment of that bill into the firm’s business account (see rule 2.1 (d) of the Accounts Rules).

Our Accounts Rules provide a degree of flexibility on this issue to enable firms to consider the most effective way to deal with their client’s matter and how to run their business. Such flexibility, however, has to be operated in the context of the wider obligations set out our Standards and Regulations and as set out above.

There are clear risks to your client if you bill for, and then pay into your firm’s business account, money for legal work that you have not yet done or for disbursements that have not yet been incurred.

These risks include, for example, if:

The client decides to terminate their retainer with you and asks you to repay the money they have paid you. Can you pay it back immediately?
The matter on which you are instructed does not proceed, for example the other side pulls out of a transaction. Can you pay back the money you have received immediately?
Your firm suddenly has to close due to incapacity or the death of the sole practitioner. Will those dealing with that closure be able to immediately repay the client?
Your firm becomes subject to an insolvency event - and the client’s money is absorbed into the insolvent’s estate as it is not held in a ringfenced client account. How will the client be able to progress their matter or pay any disbursements due if they have already paid in advance for these and the insolvency practitioner refuse to repay the client’s money because it is held in the firm’s business account?

You have an ongoing duty to safeguard money and assets that have been entrusted to you and not prefer your own interests, for example in maintaining cashflow, over those of your clients. The obligation to safeguard money entrusted to you is not limited to only that money which is held in a client account.

You will need to think very carefully about the reasons why you are billing for these sums in advance and the risks to your client in your paying these monies into your firm’s business account. It is important to remember that the sending of a bill in these circumstances does not mean that this money is no longer a client’s money and it does not need to be safeguarded because it does not sit in a client account.

In all cases, you will therefore need to think carefully about whether your broader obligations properly allow you to bill for such payments and receive money into your business account.

We would not expect firms to bill for advance disbursements that the client will remain liable to pay for such as Stamp Duty Land Tax, and to receive such money into the firm’s business account. In our view, this would be improper and a breach of our Standards and Regulations. Until the disbursement is paid the client remains liable for it, and this may be for a significant sum. Therefore, any risk to your firm’s business account could result in the transaction failing or the client having to pay twice. Billing to receive money in these circumstances is likely to fail to meet obligations to act in the best interests of your client, safeguard their money or possibly act with integrity.

In all cases where you may be considering billing for such advance payments, you will therefore need to think carefully about whether your broader obligations properly allow you to do this.

If you do consider it is proper, you will need to make sure that your client is fully informed of the risks around their money being received into your firm’s business account. How you explain the risks to clients may depend on the nature of your client and any vulnerability they may have.

Knowing these risks, your client might only be prepared to pay a bill sent for work that has been done and disbursements for which you are liable and have been incurred by you.

You will also need to consider the VAT implications of having money in your business account if you have not yet rendered any services to your client.

Your Reporting Accountant is also likely to qualify its report if their view is such that money belonging to your client is, has been or may be, placed at risk.

Transferring money for your costs

It is usual for firms to ask for money on account of their costs from a client, based on an estimate of those costs but where no bill has been delivered. This money has to be paid promptly into a client account as set out in rule 2.3 of the Accounts Rules.

Rule 4.3(a) sets out that when a firm is holding client money and the firm wants to use that money to pay the firm’s costs then the firm:

…must give a bill of costs, or other written notification of the costs incurred, to the client

or the paying party…

If you want to move money for your costs into your firm’s business account, you will need to comply with rule 4.3(a). This is intended to provide a safeguard to the client or paying party.

We would expect you to make sure that the bill sets out only those fees and disbursements that have been incurred. Where the bill does include anticipated disbursements which have not yet been incurred, you will not be considered to be in breach of rule 4.3 by leaving the money associated with those billed anticipated disbursements in the client bank account until such time as they are paid.

As discussed above, there are risks to your client if you bill for legal work that you have not yet done or for disbursements that have not yet been incurred and as a result, you take the client’s money into your firm’s business account. You will need to bear in mind the risks and factors mentioned above.

Your Reporting Accountant may qualify their report if they think these risks are serious or not justified by the circumstances of the case.

Reimbursements for money spent on behalf of the client

Some firms have asked us whether they need to deliver a bill or written notification of costs incurred if they are looking to move money from the client account to reimburse themselves for disbursements which have already been paid on behalf of the client. For example, where the firm has paid for Land Registry search or court fee using their own money (often by a direct debit from the firm’s business account).

Rule 5.1(a) of the Accounts Rules allows money for paid disbursements to be transferred from the firm’s client account to the business account as the money is being used for the purpose for which it is being held.

We would expect you to explain to your client how and when payments might be made on their behalf from your business account and that you will then be seeking a reimbursement from the client account in accordance with Rule 5. You could do this in your client care letter, terms of engagement or in other communication with your client.

Providing your client understands how their money will be used and has confirmed their instructions, we see no risks to the client in your reimbursing your firm for payments you have already made.

This is different to the scenario where disbursements have not yet been incurred or have not been paid by your firm.

Further help

If you require any further assistance, please contact the Professional Ethics

helpline https://www.sra.org.uk/home/contact-us

This arises out of a discussion with the ILFM.

Unfortunately, it’s not as straight forward in drawing up a list of what is and what isn’t material breach. Our view is that materiality can be very subjective and often left to interpretation.

To assist practices, they suggest you ask yourself the following questions in order to quantify if a breach is material or not;

Was the breach an isolated incident
How severe is the problem
Was the breach an innocent mistake
Was it discovered promptly and without delay
Was there any loss to the client
Can you still say that you are being open with your regulator if you keep this information to yourself

If you are satisfied with your answers to all of the above questions, then it is likely to be viewed as a minor breach.

Some examples of what might lead to a qualified report;

A significant and/or unreplaced shortfall (including client debit balances or business credit balances) on client account, including client money held elsewhere, for example a client's own account, unless caused by bank error and rectified promptly
Evidence of any disregard for the safety of client money and assets
Actual or suspected fraud or dishonesty by the managers or employees of the firm (that may impact upon the safety of money belonging to clients or third parties).
Accounting records not available or significantly deficient or bank accounts/ledgers failing to include reference to a client (rule 8.1, 8.2 and 8.3).
A failure to provide documentation requested by the reporting accountant (rule 12.8).
Client account bank reconciliations not carried out.
The client account is improperly used as a banking facility (rule 3.3).
Any other significant breaches not already reported to the SRA in accordance with the obligations placed on firms and their compliance officers under the SRA Code of Conduct for Firms.

We provide a remote monthly COFA & COLP Review service to several firms. Whilst we cannot be the Compliance Officers, we can help doing some of the spade work for them - providing a report for the COFA & COLP and highlighting issues that they should address. https://hunningsconsultancy.co.uk/colfa-colp-assistance/

Whilst on this page may we invite you to take a look at our other services (see the drop downs at the top of this page). We provide all round Business Support for Law Firms, everything to allow a busy partner to get on with the client work. We have assisted over 350 law firms, direct access barristers and in house-legal. Everything from Compliance to on your Case Management System (LEAP, Proclaim & Clio), from Mentoring to Setting Up a New Law Firm. Ask about running your firm and we're probably able to help. 07887 524507 or [email protected].

The Law Society published on 24^th August a very helpful guide. This can be accessed here: https://www.lawsociety.org.uk/topics/coronavirus/practical-framework-for-law-firms-and-sole-practitioners-on-return-to-the-office

However, for speed and ease of reference (on the basis that every click loses a percentage) we have reproduced it here. We hope this will be of assistance.

The UK government has published detailed guidance for offices in England, which covers law firms and sole practitioners.

The guidance has been updated to state that employers should consult with their employees to determine who can come into the workplace safely from 1 August 2020. This extends to people who are at a higher risk or clinically extremely vulnerable.

We've updated this framework to reflect the most recent guidance from the government on ensuring a COVID-19 secure workplace, changes to the rules on working from home, when to wear face coverings, guidance on mass gatherings, ventilation and work-related travel.

These are the most relevant points for legal services.

Basic principles

Non-prescriptive. Each law firm will need to translate the guidance into specific actions, depending on its size, management and structure
Legal obligations. The guidance does not supersede any legal obligations relating to health and safety, employment or equalities. Existing obligations must be complied with, including those related to individuals with protected characteristics
Discretion and COVID-19 secure workplaces. The updated guidance no longer suggests working from home if you can. Instead, it gives employers discretion on their workplace arrangements. Measures could include continuing to work from home, but the guidance emphasises that this is just one way to work safely. An alternative is to make workplaces safe by following 'COVID-19 secure' guidelines so that staff can return to work

Practical steps firms have to take

Conduct a risk assessment (including how to manage an outbreak)
Manage risks and compliance
Look after your staff who are on-site and working from home
Protect people who are at higher risk
Support staff who need to self-isolate
Ensure you comply with measures required for staff members with protected characteristics
Put in place measures for social distancing at work
Adapt workplaces and workstations
Adapt your meetings
Adapt your common areas
Managing client visits and contractors
Be clear on personal protective equipment (PPE) and face coverings
Manage your workforce who are on-site, track and trace duties, and managing an outbreak
Minimise work-related travel
Keep communicating with your staff
Review your policies and processes

Conduct a risk assessment

The firm needs to carry out an appropriate COVID-19 risk assessment, just as it would for other health and safety related hazards.

As part of your risk assessment, you should make sure that you have an up-to-date plan in case there's a COVID-19 outbreak. This plan should nominate a single point of contact who should lead on contacting local public health teams.

This risk assessment must be done in meaningful consultation with staff groups.

If the organisation has fewer than five workers, there's no need to write anything down as part of the risk assessment
Firms must consult on the risk assessment with their nominated health and safety representative
The assessment should have particular regard to whether the people doing the work are especially vulnerable to COVID-19
Firms should share the results of the risk assessment with their workforce. If possible, firms should consider publishing it on their website (and the government expects all businesses with over 50 employees to do so)
When employers consider that workers should come into their place of work, this will need to be reflected in the risk assessment and actions taken to manage the risks of transmission in line with this guidance
The risk assessment should consider higher-risk groups including: older males, people with a high body mass index (BMI), people with health conditions such as diabetes, and people from some Black, Asian or minority ethnicity (BAME) backgrounds

If you've already conducted your risk assessment (and have opened your offices), you must review it regularly and cross reference it against this practical framework to check that the measures you have put in place are working and identify any further improvements you should make.

Download the template COVID-19 risk assessment for law firms (Word 116 KB)

A meaningful consultation means engaging in an open conversation about returning to the workplace before any decision to return has been made. This should include a discussion of the timing and phasing of any return and any risk mitigations that have been implemented.

Manage risks and compliance

Employers have a duty to reduce workplace risk to the lowest reasonably practicable level by taking risk mitigation measures, including consulting with other employers that share the same workplace. To protect the health and safety of your workers and visitors, employers are advised to consider the following steps in order:
- ensuring both workers and visitors who feel unwell stay at home and do not attend the premises
- in every workplace, increasing the frequency of handwashing and surface cleaning
- businesses and workplaces should make every reasonable effort to ensure their employees can work safely. This may be working from home or a COVID-secure workplace
- When in the workplace, everyone should make every reasonable effort to comply with the social distancing guidelines set out by the government
- From 1 August, clinically extremely vulnerable individuals can go to the workplace as long as it's COVID-secure, but should carry on working from home wherever possible
Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, firms should consider whether that activity needs to continue for the business to operate, and, if so, take all mitigating actions possible to reduce the risk of transmission between staff
Mitigating actions include:
- increasing the frequency of hand washing and surface cleaning
- keeping the activity time involved as short as possible
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working (rather than face-to-face) whenever possible
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others)
- redesigning tasks to avoid people needing to unduly raise their voices to each other
If people must work face-to-face for a sustained period with more than a small group of fixed partners, an assessment is needed on whether the activity can safely go ahead

Display a notification (90 KB) in a prominent place in your business and on your website to show the firm has followed this guidance

The government has clarified that failure to complete a risk assessment that takes account of COVID-19 or completing a risk assessment but failing to put in place sufficient measures to manage the risk could constitute a breach of health and safety law.

Enforcing authorities can issue enforcement notices to help secure improvements.

Serious breaches and failure to comply with enforcement notices can constitute a criminal offence, with fines and even imprisonment of up to two years.

Inspectors are carrying out compliance checks nationwide to make sure that employers are taking the necessary steps.

Law firms and practitioners must follow instructions from authorities in the event of new local lockdowns and restrictions.

Look after your staff who are on-site and working from home

The government advice has changed from 'work from home where you can' to employers should ensure that workplaces are safe, whilst also enabling working from home
You should consult with your staff to decide who can come into the office safely. In doing so, you need to take account of a person's journey, caring responsibilities, protected characteristics and other individual circumstances. Extra consideration should be given to those people at higher risk
If you consider that your staff should come into the office, then this will need to be reflected in your COVID-19 risk assessment and actions taken to manage the risks of transmission in line with this guidance. It's vital that employers engage with their staff to make sure that they feel safe returning to work, and they should not force anyone into an unsafe workplace
Steps that will usually be needed:
- considering the maximum number of people who can be safely accommodated on site
- planning for a phased return to work for people safely and effectively

At home	At the office
Monitor the wellbeing of people who are working from home and help them to stay connected with the rest of the workforce, especially if the majority of their colleagues are on-site	Help on-site members to be connected with those working remotely
Provide support for workers around mental health and wellbeing. This could include advice or telephone support	Provide support for workers around mental health and wellbeing. This could include advice or telephone support
Provide equipment for people to work at home safely and effectively, for example, remote access to work systems	As far as possible, where staff are split into teams or shift groups, fix these teams or shift groups so that where contact is unavoidable, this happens between the same people
Consult, communicate and engage	Identify areas where people directly pass things to each other (for example, office supplies) and find ways to remove direct contact, such as using drop-off points or transfer zones

Protect people who are at higher risk

From 1 August, clinically extremely vulnerable individuals can return to their workplace provided that COVID-secure guidelines are in place. However, they should work from home wherever possible
If clinically vulnerable individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to maintain social distancing. It may be appropriate for clinically extremely vulnerable individuals to take up an alternative role or adjusted working patterns temporarily
Attention should also be paid to people who live with clinically extremely vulnerable individuals

Support staff who need to self-isolate

Staff members who are advised to stay at home under existing government guidance to stop infection spreading should not physically come to work. This includes staff who have symptoms of COVID-19, those who live in a household or are in a support bubble with someone who has symptoms, and those who are advised to self-isolate as part of the government's test and trace service
Your organisation should enable workers to work from home while self-isolating if appropriate

Ensure you comply with measures required for staff members with protected characteristics

Understand and take into account the particular circumstances of those with protected characteristics
Involve and communicate appropriately with workers whose protected characteristics might either expose them to a different degree of risk or might make any measures under consideration inappropriate or challenging for them
Consider whether you need to put in place any particular measures or adjustments to take account of your duties under the equalities legislation
Make reasonable adjustments to avoid disabled workers being put at a disadvantage and assess the health and safety risks for new or expectant mothers
Make sure that the steps taken do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments

Put in place measures for social distancing at work

You must make sure that your staff maintain social distancing guidelines (two metres or one metre with risk mitigation where two metres is not viable) wherever possible, including:

while arriving at and departing from work
while in work
when travelling between sites

The government has emphasised that social distancing applies to all parts of a business, not just the places where people spend most of their time. This includes entrances and exits, break rooms, canteens and similar settings. These are often the most challenging areas to maintain social distancing and workers should be specifically reminded.

Some measures to implement include:

staggering arrival and departure times at work to reduce crowding into and out of the workplace, taking account of the impact on those with protected characteristics
providing additional parking or facilities such as bike racks to help people walk, run, or cycle to work where possible
reducing congestion, for example, by having more entry points to the workplace
providing more storage for workers for clothes and bags
using markings and introducing one-way flow at entry and exit points
providing handwashing facilities, or hand sanitiser where not possible, at entry and exit points and not using touch-based security devices such as keypads
defining process alternatives for entry/exit points where appropriate, for example, deactivating turnstiles requiring pass checks in favour of showing a pass to security personnel at a distance
reducing movement by discouraging non-essential trips within buildings and sites, for example, restricting access to some areas
introduce more one-way flow through buildings
reducing maximum occupancy for lifts, providing hand sanitiser for the operation of lifts and encouraging use of stairs wherever possible
making sure that people with disabilities are able to access lifts
regulating use of high traffic areas including corridors, lifts turnstiles and walkways to maintain social distancing
operating the office ventilation system when there are people in the building

Adapt workplaces and workstations

Avoiding use of hot desk spaces and, where not possible, cleaning workstations between different occupants, including shared equipment. Workstations should be assigned to an individual and not shared
Review layouts and processes to allow people to work further apart from each other
Using floor tape or paint to mark areas to help workers keep socially distanced
Only where it’s not possible to move workstations further apart, arranging people to work side by side or facing away from each other rather than face-to-face
Only where it’s not possible to move workstations further apart, using screens to separate people from each other
Manage occupancy levels to enable social distancing
Ventilation into the building should be optimised to ensure a fresh air supply is provided to all areas of the facility and increased wherever possible. Doors and windows should be kept open if possible

Adapt your meetings and business gatherings

Using remote working tools to avoid in-person meetings
Only absolutely necessary participants should attend meetings and should maintain social distancing
Avoid transmission during meetings, for example, avoiding sharing pens and other objects
Provide hand sanitiser in meeting rooms
Hold meetings outdoors or in well-ventilated rooms whenever possible
For areas where regular meetings take place, use floor signage to help people maintain social distancing
The guidance confirms that businesses can host events:
- indoors: businesses following COVID-19 secure guidelines can host groups of more than 30 people indoors, for example for training and seminars
- outdoors: in public outdoor spaces, businesses can host more than 30 people provided they take reasonable steps to mitigate the risk of transmission, following COVID-19 secure guidance and complete a risk assessment

Adapt your common areas

Work collaboratively with landlords and other tenants in multi-tenant sites/buildings to ensure consistency across common areas, for example, receptions, staircases
Stagger break times to reduce pressure on break rooms or canteens
Create additional space by using other parts of the workplace or building that have been freed up by remote working
Install screens to protect staff in receptions or similar areas
Provide packaged meals or similar to avoid fully opening staff canteens
Encourage workers to bring their own food
Reconfigure seating and tables to maintain spacing and reduce face-to-face interactions
Regulate use of locker rooms, changing areas and other facility areas to reduce concurrent usage
Encourage storage of personal items and clothing in personal storage spaces, for example, lockers and during shifts

Managing client visits and contractors

The UK government guidance states that from 8 August, members of the public will be required to wear a face covering when visiting premises providing professional, legal or financial services.

The Health and Safety Executive has confirmed that this requirement only applies to law firms with a ‘shop front’ on to a high street, for example where members of the people can walk in.

All other law firms, for example those who only see clients by appointment, do not require their clients or visitors to wear face coverings in their premises. Other rules on social distancing, cleaning protocols and information set out in the government guidance and our practical framework. Staff are not required to use face coverings in law firms. The use of face coverings is discretionary.

You may wish to:

encourage visits via remote connection/working where this is an option
where site visits are required, site guidance on social distancing and hygiene should be explained to visitors on or before arrival
limit the number of visitors at any one time
determine if schedules for essential services and contractor visits can be revised to reduce interaction and overlap between people, for example, carrying out services at night
maintain a record of all visitors, if this is practical
revisit visitor arrangements to ensure social distancing and hygiene, for example, where someone physically signs in with the same pen in receptions
provide clear guidance on social distancing and hygiene to people on arrival, for example, signage or visual aids and before arrival, for example, by phone, on the website or by email
establish host responsibilities relating to COVID-19 and providing any necessary training

Be clear on personal protective equipment (PPE) and face coverings

Wearing a face covering is optional and is not required by law to be worn by staff in the office
Firms should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19
Unless firms are in a situation where the risk of COVID-19 transmission is very high, the risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited. However, if the risk assessment does show that PPE is required, then firms must provide this PPE free of charge to workers who need it. Any PPE provided must fit properly
Face coverings are not a replacement for other ways of managing risk, such as increased hand and surface washing. If staff members choose to wear one, firms should support their workers in using face coverings safely if they choose to wear one. This means telling workers:
- wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it
- when wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands
- change your face covering if it becomes damp or if you’ve touched it
- continue to wash your hands regularly
- change and wash your face covering daily
- if the material is washable, wash in line with manufacturer’s instructions. If it’s not washable, dispose of it carefully in your usual waste
- practise social distancing wherever possible
You should provide extra bins to dispose of face coverings and other PPE safely. The government has produced further guidance on how to dispose of single use face coverings and PPE properly

Manage your workforce who are on-site, track and trace duties, and managing an outbreak

As far as possible, where staff are split into teams or shift groups, fix these teams or shift groups so that where contact is unavoidable, this happens between the same people
Make sure that all employment records are up to date, including contact details
Assist the test and trace service by keeping a temporary record of your staff shift patterns for 21 days and assist NHS Test and Trace with requests for that data if needed. See further guidance
If there's more than one case of COVID-19 reported in your organisation, you should contact your local PHE health protection team to report the suspected outbreak
If your local health protection team declares an outbreak, you'll be asked to record details of symptomatic staff and assist with identifying contacts. You'll be provided with information about the outbreak management process, which will help you to implement control measures, assist with communications to staff, and reinforce prevention messages
If possible, encourage your staff to walk, cycle or drive to work. However, if using public transport is necessary, wearing a face covering is mandatory. Some firms are offering face coverings for staff – this is discretionary

Minimise work-related travel

Minimise non-essential travel. Encourage people to walk or cycle where possible
Minimise the number of people who are not in the same household or support bubble travelling together in any one vehicle by using fixed travel partners, increasing ventilation when possible and avoiding sitting face-to-face
Clean shared vehicles between shifts or on handover
Where workers are required to stay away from their home, centrally logging the stay and making sure any overnight accommodation meets social distancing guidelines

Keep communicating with your staff

Provide clear, consistent and regular communication to improve understanding and consistency of ways of working
Engage with workers through existing communication routes and worker representatives to explain and agree any changes in working arrangements
Develop communication and training materials for workers prior to returning to site, especially around new procedures for arrival at work
Engage with workers (including through employee representative groups) to monitor and understand any unforeseen impacts of changes to working environments
Use simple, clear messaging to explain guidelines using images and clear language, with consideration of groups for which English may not be their first language
Use visual communications, for example whiteboards or signage, to explain changes to schedules, breakdowns or materials shortages to reduce the need for face-to-face communications

Review policies and processes

Review your policies, including health and safety and incidents management
On health and safety, the government guidance states that in an emergency – for example, an accident, provision of first aid, fire or break-in – people do not have to comply with social distancing guidelines if it would be unsafe
People involved in the provision of assistance to others should pay particular attention to sanitation measures immediately afterwards, including washing hands
Consider the security implications of any changes you need to make to your operations and practices in response to COVID-19, as any revisions may present new or altered security risks, which may need mitigations

We recommend that you also update policies on whistleblowing, data protection and flexible working, and creating new ones on video conference protocols and how to notify if someone is displaying COVID-19 symptoms.

Read our toolkit on safe return to the office

See our employment law guidance on return to the office

Find out more about our Return, Restart and Recovery campaign

This sector-specific guidance applies to England only. In Wales, similar guidance is being developed and not yet available.

Our Wales office is having ongoing discussions with the Welsh government and we'll update members when we have further insight.

Law firms in Wales should continue to operate remotely, and staff should work from home as default

New legislation on making wills

The legislation recognises that:

An increasing number of people have sought to make wills during the Covid 19 pandemic, but for people shielding or self-isolating it is extremely challenging to follow the normal legalities of making a will - namely it being witnessed by two people.
In response to this The law (the Wills Act 1837) will be amended to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.

The legislation will apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except:

cases where a Grant of Probate has already been issued in respect of the deceased person
the application is already in the process of being administered

The legislation will apply to wills made up to two years from when the legislation comes into force (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures. The advice remains that where people can make wills in the conventional way they should continue to do so.

When the new law ceases to be in force, people will only be able to make new legal wills using the normal methods.

The legislation applies to codicils (documents that formally modify or amend an original will). Codicils must satisfy the same signing and witnessing rules that are involved in the making of a will.

This guidance reflects both requirements and suggested best practice:

where ‘must’ is used it reflects a legal requirement
where ‘should’ is used it relates to (non-mandatory) best practice

The current law on making wills

The legislation ruling the making of wills in England and Wales is the Wills Act 1837

None of the existing relevant requirements are changed by the new law.

Section 9 of the Act sets out the requirements for making and witnessing a will as follows, and these requirements remain in force:

No will shall be valid unless -

(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

The law also includes a number of other requirements. For example, that the person making the will ‘has testamentary capacity’ - that they know fully what they are doing and are able to express their intentions - and that they are not being unduly influenced by anyone.

For witnesses, the current law allows an executor to the will to be a witness but a beneficiary from the will (or their spouse/civil partner) cannot be a witness without the gift to them becoming void. ‘Mature minors’ are allowed to witness a will, but blind people cannot. There is a general assumption that a witness should have testamentary capacity.

Distanced witnessing - ‘clear line of sight’

In the existing law a witness must have a ‘clear line of sight’ of the will-maker signing and understands that they are witnessing and acknowledging the signing of the document, for example if self-isolation or social distancing have prevented the signing and witnessing of a will by people in the same room.

The person making the will must have a clear line of sight of the witnesses signing the will to confirm they have witnessed the will-maker’s signature (or someone signing on their behalf and at their direction).

The following scenarios would lead to a properly executed will during the pandemic within the existing law, provided that the will maker and the witnesses each have a clear line of sight:

witnessing through a window or open door of a house or a vehicle
witnessing from a corridor or adjacent room into a room with the door open
witnessing outdoors from a short distance, for example in a garden

Video-witnessing

In the new law, all of the legislation set out above applies where a will is video-witnessed.

The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.

To reflect this, the will-maker could use the following example phrase:

‘I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.

Witnessing pre-recorded videos will not be permissible - the witnesses must see the will being signed in real-time. The person making the will must be acting with capacity and in the absence of undue influence. If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged - both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.

The following scenarios illustrate circumstances in which video-witnessing might be appropriately used:

Example 1:

the testator (T) is alone and witness one (W1) is physically present with witness two (W2). Together, W1 and W2 are on a two-way live-action video-conferencing link with T

Example 2:

T, W1 and W2 are all alone in separate locations and are connected by a three-way live-action video-conferencing link.

Example 3:

T is physically present with W1, and they are connected to W2 by a two-way live-action video-conferencing link.

Example 4:

T is physically present with a person signing the will on their behalf (and at their direction), and connected to W1 and W2 by two or three-way live-action video-conferencing (depending on whether W1 and W2 are in the same or separate locations)

Signing and witnessing a will by video-link

Signing and witnessing by video-link should follow a process such as this:

Stage 1:

The person making the will ensures that their two witnesses can see them, each other and their actions.
The will maker or the witnesses should ask for the making of the will to be recorded
The will maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.
If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity - such as a passport or driving licence.

Stage 2:

The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.

Stage 3:

The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document (see Counterpart documents).
A longer period of time between the will-maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.

Stage 4:

The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.

Both parties (the witness and the will maker) must be able to see and understand what is happening.
The witnesses should hold up the will to the will maker to show them that they are signing it and should then sign it (again the will maker should see them writing their names, not just see their heads and shoulders).
Alternatively, the witness should hold up the signed will so that the will maker can clearly see the signature and confirm to the will maker that it is their signature. They may wish to reiterate their intention, for example saying: “this is my signature, intended to give effect to my intention to make this will”.
This session should be recorded if possible.

Stage 5:

If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the will maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Consideration may be given to the drafting or amending of the attestation clause in a will where video-witnessing is used. The attestation clause is the part of the will that deals with the witnessing of the will makers signature. For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred, along with details of whether a recording is available.

If you have any questions about this process you are advised to consult a solicitor or will-making professional.

Professional bodies, such as the Law Society and STEP, are expected to be issuing their own guidance to their members on this process, and any such material should be read alongside this guidance.

Electronic signatures

The Government has decided not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud against the person making the will. These risks were identified by the Law Commission in its 2017 consultation paper on wills. The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.

Counterpart documents

The term ‘counterpart documents’ refers to when two copies of the will are prepared, and while the will maker signs one document, the witnesses sign another copy of the same document. The two counterpart documents between them constitute one valid will.

The Government has decided against introducing counterpart wills as part of this temporary legislation. Although some authorities have adopted this reform to complement video-witnessing, the Government has decided against allowing it in England and Wales in the belief that the risks outweigh the benefits at this stage. Such risks include there being different versions of the will (with different contents), the witness signing the wrong document, and an increase in the risk of undue influence and fraud.

Here is a link to the Government Website for this article/update: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing

The Government Apprenticeship Scheme is promoted as an option by the SRA for a way to assist with the funding of training costs.

It is Government Policy to help people into employment to be able to use their skills and become good tax-payers.

So, you should be pushing at an open door. In October 2020 DWF announced that from January 2022 trainees will be on the SQE using the Apprenticeship Scheme. In April 2021 the BBC In-House Legal Department invited applicants for Level 7 Graduate Legal Apprenticeship in 2022 - to qualify as solicitors through the SQE. So the larger organisations are starting to adopt this.

The big benefit is that the trainee can qualify without a £17,000 debt (as currently is the case under the LPC).

* The government is reviewing whether the funding of level 7 apprenticeships such as for the SQE should continue. Here's a link to their press release of 24.9.24

But that might give employers more flexibility over wages perhaps?

We are interested in helping people who have done their degree to progress with their career. There are so many struggling to find a traineeship at the moment and in limbo. Such a waste of potential, effort and money. The assistance here may unlock all the potential places that exist in small law firms.

Here is a summary of information on how a law firm could use the Apprenticehip Scheme for people training to become solicitors:

The employer employs the Apprentice.
If you are an employer accessing funding through the apprenticeship service, you must have and operate within the terms and conditions of your apprenticeship employer agreement. Here is the link to the government suggested template Apprenticeship Agreement: https://www.gov.uk/employing-an-apprentice/apprenticeship-agreement The Agreement is between the employer and the apprentice.
The employer must also sign a commitment statement with their apprentice and the training provider. Here is a link to the government suggested draft and some other info: https://www.gov.uk/government/publications/apprenticeships-off-the-job-training
They have to be employed for a minimum of 30 hours a week (80% of which must be spent on the job and 20% with the training provider).
The minimum length of the apprenticeship is 12 months (certain exemptions apply due to exams having been taken and earlier QWE, but 12 months would be reasonable anyway for them to give back once they’ve learned the ropes in the firm, I’d suggest).
You must pay the Apprentice at least the National Minimum Wage (currently £8.91/hr if aged 23 and over)
The firm, as the Apprentice’s employer, pays their wages.
The firm may be able to get a waiver for NI (national insurance contributions) if the Apprentice is under 25 years old (refer to your accountant).
Grant (only up to the end of Sept 2021) of £3,000 if they are aged under 24 years. That grant is paid to the employer. (refer to your accountant)

Funding for the training

The government will pay 95% of this (or 100% if you are large enough to be paying into the Apprenticeship Fund via the Levy [your annual wage bill is over £3 million]).
This is paid directly to the training provider (up to a maximum of £27,000 for the whole training and exams under the apprenticeship); it is paid in the form of credits, no money goes to the employing firm.
When the Training Provider quotes, the quote should include the cost of the SQE 1 & 2.
A big difference here is that the Apprentice does not qualify with a huge debt (currently up to £17,000 for the LPC) for the training and exams.
Transfer Funding – larger firms and companies who pay the Apprenticeship Levy are now allowed to transfer any surplus they may have each year to a smaller organisation, which can then cover the 5% of the training costs that the smaller organisation/firm would otherwise be left paying; so if you have a good relationship with a larger organisation ask them – it won’t cost them anything.

The Apprenticeship scheme is run through a portal. You can delegate a lot of the admin should you wish.

Getting rid of an underperforming Apprentice – Apprentices have no more or less employment rights than any other employee. There is no impact on the apprenticeship funding. There is no clawback from the employing firm. The Training Provider would cease to receive any more money as the training would have ceased.

Apprenticeship Support Service - contact details:
- Phone: 08000 150 600, tel line open 7 days a week 8am-10pm. Will respond via email during normal office hours
- Web: https://help.apprenticeships.education.gov.uk/hc/en-gb
- Emails to: [email protected]

External QWE Confirmation Service

If you know of someone who needs an SRA regulated solicitor to confirm their QWE but have no-one in their organisation to do so - we can help. This service would apply to someone who is NOT qualified as a lawyer. Please see the link below and feel free to signpost them to us:

QWE - External Confirming Solicitor Service - for Aspiring Solicitors

YouTube Videos on SQE, SQE2 Exemptions & QWE

https://www.youtube.com/@hunningsconsultancy999/videos

Probate Applications - from 2nd November compulsory use of the On-Line Portal