THE TFR IN ACTION: WORK-BASED LEARNING

The Law Society Regulation Board (LSRB) is seeking to modernise the training contract arrangements and pilot a new framework for the assessment of pre-qualification work based learning.

The new framework, if implemented, will introduce a more objective assessment of an individual’s readiness for admission as a solicitor and provide a route to qualification for Legal Practice Course graduates who have not secured a training contract.

At the moment, the plans are in an initial stage and a "true" consultation has not been undertaken.  The paper available to download below outlines the proposed new framework and seeks initial views on the proposals.  This is an initial consultation, with a response date of 29 September. A full, three-month consultation will follow later in the year.

The LSRB intend to pilot a new framework in September 2007 with a small number of participants. The pilot will run for two years, and a full evaluation will be undertaken before any new framework is fully implemented.

The paper is entitled A New Framework for Work-Based Learning, and can be downloaded here.

SUMMARY

The LSRB proposals are aimed at modernising the system of training within the UK. Some of the motivating factors for change as indicated as follows: 

• The mismatch between the number of LPC graduates and the number of training contract places available;
• The current approach not recognising the different ways in which people can study and work, and provides little flexibility;
• The guidelines on “time to count” are inflexible;
• There is a concern that the training contract may breach equality legislation and guidelines;
• Individual trainees can be signed off regardless of the standard of their work during their training contact, and qualify; and
• Authorisation and monitoring is not robust or effective enough.

The proposals indicated by the LSRB include the use of a portfolio and an appraisal-based timescale for training (meaning that the must be an individual meeting, and four appraisals every four to six months). Further, they are geared to provide a route to qualification for individuals not working in an accredited organisation or under a formal training agreement. However, the proposals allow the validation of organisations as “accredited”, and those working in such establishments will have a “light-touch” assessment regime.

This means that there will be a distinction between the different kinds of organisation that the potential solicitor is working for. The LSRB would give those firms or bodies that met its standards for training accreditation, but it would no longer provide to those institutions what the training should involve or give a detailed structure. The focus of the training procedure would instead be a robust assessment of the day one outcomes.

This means that anyone who wishes to qualify as a solicitor could present themselves for assessment, and potentially qualify, even without undertaking training at an accredited institution - or even “training” (as we know it) at all. This means that the focus is on the capability and competence of the potential candidate, and not the way in which they have trained.

However, there would be no specific protections for trainees. In fact, they would need to rely on their status as ‘employees’ to provide them with any protection. Presumably, this again means that there will be no minimum salary available to those undertaking training, even at accredited training establishments.

THE LSRB PROPOSALS

THE TSG RESPONSE

The TSG agrees with the majority of the motivating factors for amendment of the current training regime. 

We agree that there are problems with inflexibility regarding methods of training and work and that these may breach equality and diversity guidelines.  We also acknowledge that some supervisors may simply sign off trainees, without really being aware of whether they are able to meet the required standards under the current training regulations.  This leads to certain institutions “rubber-stamping” their trainees - meaning that they qualify regardless of ability or competence.

Authorisation is not as robust as it could be, and monitoring tends to be used in emergency situations (when requested by affected trainees, for example) rather than on a regular basis, as required for quality control.  We also agree that the guidelines on time to count are inflexible, and may severely disadvantage some entrants to the profession (paralegals with over six months’ experience, for example).

This said, the TSG do not believe that the training contract as it stands is responsible for the mismatch between the number of the LPC graduates and the number of training contract places available.  Large numbers of law students and LPC students complete their course each year. The profession cannot support everyone to enter it; it does not necessarily need more trainees and more solicitors.  There appear to be no controls on the amount of law students that are permitted to embark on the LPC course or even upon law degrees. 

However, the factors for reform together underline the case that reform is needed.  Although the TSG do not believe that all the factors indicated by ther LSRB are as important as each other - it does believe that reform is required.  This is certainly the case in the light of the reform afoot in the way in which the profession delivers legal services to the public.  Future solicitors need to meet a certain standard, and be able to instil the public with confidence in the profession.  The client needs to feel that he is getting a certain standard of legal excellence when he approaches a solicitor.

The TSG notes that the idea behind this new training procedure is to allow those not working in a formalised training relationship to qualify as a solicitor.  It is envisaged that the process will be the same for those in an accredited institution and those not.  In both cases, there will be the need to undertake an initial assessment of the training and then four appraisals (at least) over a minimum period of 16 months.

The training period will not be overly concentrated on the time it takes to qualify.  The TSG agrees with this approach, and is supportive of the idea that qualification should be based on merit.  This would ensure that the standard of entrance to the profession is maintained at a certain level.

The basis of the training will be the day one outcomes.  Providing that these will be met, it will be irrelevant how these have been acquired.  This means that the most important element in the training process is going to be the assessment itself.  The assessment of competence will be based on the completion of the portfolio requirement, and will be assessed by those with specific training.

The main problem that the TSG can see with this approach is the fact that the standard of the training itself is not important.  This may severely disadvantage some trainees, who may be deprived of the necessary supervision which they require to assist them in completing the portfolio and becoming ready for the assessment.  These trainees may not be able to qualify as a solicitor based on the failure of the supervisor.  Although accredited organisations will have a “best practice” standard of training, those completing the work-based learning in a non-accredited institution will not have this standard of supervision.  This is not desirable.

The reforms seem to concentrate on the idea that those undertaking training outside of the accredited organisation are likely to be those who have worked as paralegals, or who have undertaken some legal work before.  This is not always going to be the case.  Whereas for these people, supervisors will not be important, and indeed, they will be concentrating on filling their portfolio themselves with a bit of guidance - many trainees will be straight out of university and law school and will require guidance and assistance to undertake their training and learning.  These individuals are those who are (in the current system) undertaking training contracts.  The quality of the supervision itself for these individuals is vital.  Often, people do not continue their training or have difficulty once qualified because they have had substandard supervision.  This should not be overlooked under the new system.  Standard of training is just as important as standard of entry - and the two are intrinsically linked.

Having assessed both the initial TFRG proposals and these new proposals, the TSG notes that the new proposals mainly follow the original TFR reforms.  Even so, there are a few discrepancies that the TSG has identified.

Firstly, the TSG notes that it is no longer proposed for the LSRB to require that trainees (or whatever they would be known as) complete the day one outcomes in non-contentious and contentious disciplines.  Further, under this regime, the trainee’s portfolio would not be assessed externally in all cases.  Finally, the initial proposals mentioned a final assessment of ethics and client care skills at the end of the period of work-based learning (intended to replace the PSC course), and these reforms do not.

These proposals do, to a certain extent, fulfil the aims which they intend to.  However, there are several concerns which the TSG continues to have concerning these arrangements.  We shall follow the format of the consultation paper itself in responding to each element of the proposals.  We also have our own suggestions as to how to combat some of the perceived difficulties in the “new” system.

You can download a final copy of the TSG Response to the Consultation HERE.

CONCLUSION

In the main, the TSG supports the amendments to the training regulations.  The TSG believe that the use of portfolios and assessments will force trainees to take control of their own training, and will also require that certain standards are needed before individuals can qualify as solicitors. 

This is clearly important.  However, also important is that trainees receive a certain standard of training and are not exploited.  They are vulnerable, and require protections within the profession - which should not be removed.  The debt faced by a trainee solicitor is obscene - the average being around £30,000.  This will only rise if trainees have to bear the cost of their training contract themselves, and not receive even a minimum guaranteed salary.

Training of solicitors needs to be robust and needs to be based on merit.  The TSG do not believe that training should be easy, and nor do we believe that everyone has the right to automatically qualify as a solicitor - provided that they do the time.  The TSG is, however, of the opinion that everyone should have the chance to attempt to qualify.  There should be no barriers to the profession other than ability - and cost certainly should not stop people from pursuing their career in the law.

The Law Society Response

The Law Society also responded to the consultation itself.  As the representative body of the profession, it responded to the proposed reforms of the LSRB as a separate entity.

You can download a copy of the Law Society response HERE.

In the main, the Law Society highlights the same issues with the LSRB proposals as we do.  It draws attention to factors such as the risk of creating a two-tier system and the problems which could be faced by not requiring certain standards of work to be provided to those undertaking their work-based learning.

However, the Law Society response does not accord with that of the TSG on one main area.  The Law Society does not support the use of retrospective documents to complete the portfolio.  The Law Society is of the opinion that the appraisals themselves are an important part of the training process, and that they should be completed in ALL cases.  They therefore support the proposition that there should be a minimum length of training which is defined by the appraisals.  At the moment, this means that trainees could qualify in 16 months.

The TSG have taken the opposite approach to this point due to the fact that we believe that in a training system based on merit, there is no need for any time-based approach at all.  If the new entrant can demonstarte in the assessment that they do possess the skills necessary for qualification, then they be allowed to qualify.  This would be the case regardless of whether they had completed any appraisals during the time that they were preparing the work in the portfolio.  For the position to be otherwise seems to us to be a nonsense, and a furtherance of the current system which the reforms are supposed to remove.

The TSG recommends that all entrants undertake an in-house initial appraisal (on registration of their work based learning) to determine what level the applicant has reached.  If they are immediately ready for assessment, then they should be able to undertake it without doing the 16 months of training.

However, this disagreement aside, the TSG is in accord with the Law Society response and hopes that the LSRB will take this into consideration when determining its final prosposals. 

NEXT STEPS

The TSG notes that the majority of its questions will be answered when the final proposals are released later. However, the TSG strongly urges that these problems are given the attention that they deserve. The TSG members at the moment experience a large amount of difficulties with their training, which should not be allowed to continue in a new, reformed system.

The TSG will monitor the LSRB's next steps on these reforms.  It suggests that trainees should not be suffering or bearing the costs for these reforms - otherwise there will be no reason to puch forward with them.  However, the TSG does support change and would like to ensure that the bets interests of its members are served.