We know the spread of coronavirus is placing enormous pressure on the legal profession. We have announced an unprecedented £2.2m package of financial support to help solicitors to deal with this challenge and we are also temporarily covering the initial payment due for this year's SLCC levy allowing members to defer payment until the end of October this year.
We will continue to keep our members informed throughout via direct emails, including a weekly edition of our e-newsletter Lawscot News, on our social media channels, and here on our website. As always, we are keen to hear feedback from our members.
We are continuing to monitor official advice and updates from the Scottish Government and NHS to ensure that we are acting in accordance with the latest guidance to protect the health, safety and wellbeing of our employees, members and stakeholders, while continuing to carry out our duties as the professional body for Scottish solicitors and provide services for our members and for members of the public.
We will be keeping this page up to date with useful information and signposts to online resources. Please scroll through the drop down list below to find the latest practice updates, information on support available for solicitors and businesses, and information for students and trainees.
Given the volume of information on this page we'll highlight the most recent key additions and changes here.
Thursday, 6 August 2020
From Monday 17 August 2020 the Bail Appeal Court, which currently sits in Court No 1 at Edinburgh Sheriff Court, will move to a fully virtual format. You can read more in the Practice updates below under the heading Court: Civil and Criminal (including Legal Aid)
The Scottish Government has provided guidance in relation to building standards in the context of the coronavirus. Full details can be found on the Scottish Government website.
The Quality Assurance Scheme is suspended for the time being.
No new reviews will be set up, and no extended or final reviews at solicitors’ offices will be arranged either. We will look to complete ongoing reviews where we can, although they may take longer than usual. We will be in touch with solicitors to discuss the best ways of returning any files.
Under new guidance, effective from 1 May 2020, SCTS will begin to process Commissary business. Applications should be sent in hard copy to the relevant hub court. Court users are warned that due to significantly reduced staff resources, commissary applications will take longer to be processed.
We recognise the challenges faced by firms and individual solicitors at this time and will be flexible on deadlines for information relating to conduct complaints. Those subject to new and ongoing complaints managed by the Law Society will be contacted individually or can contact their appointed complaints investigator to discuss. As our staff are now working from home contact will be primarily by email. If you have not previously shared an email address with us please drop us a line at email@example.com
If you do not have access to email please visit the Contact Us page of our website for alternative contact options.
Scottish Legal Complaints Commission (SLCC)
The SLCC has issued advice for practitioners which outlines how it will view complaints that arise from the current challenges which may help you avoid or manage any client dissatisfaction. It has also issued an update stating that while it aims to avoid a significant overall effect on complaint resolution times, deadlines for complainers and lawyers may need to be extended.
Update as at 15 July 2020
The digital submission service for the sasine register will open to all customers on 16 July. To account for the expected number of applications, RoS intend to take a phased approach. You can find out more on the Registers of Scotland website.
Update as at 13 July 2020
Secondary legislation was laid in the Scottish Parliament on Wednesday 15 July which has the effect of increasing the Land and Building Transaction Tax (LBTT) residential threshold from £145,000 to £250,000 until 31 March 2021. Following the Law Society's call for a speedy implementation of the measure to support recovery of the property market.The revised rates and bands now apply to transactions with an effective date on or after 15 July 2020.
Update as at 23 June 2020
The Scottish Government has issued guidance today to take effect on 29 June 2020, aimed at ensuring that moving home in Scotland can happen safely during the coronavirus outbreak.
Find out more and access the Guidance here.
Update as at 23 April 2020
Law Society guidance for settlement of conveyancing transactions during Covid-19 restrictions
Public health must be at the forefront of all decisions during this difficult time and members should not put themselves, their staff, clients or members of the wider public at risk, and we comment further on this below.
Registers of Scotland have issued details of their proposals to allow electronic submission of applications. These arrangements are in addition to the current interim measures for Advance Notices, following the closure of Registers of Scotland’s offices.
Registers of Scotland are expecting that the arrangements for electronic submission of applications will be live from Monday 27 April. Any change in this date will be announced by Registers of Scotland, and we would refer you to Registers of Scotland’s website for more details in relation to the interim measures for Advance Notices and electronic submission of applications.
We set out our guidance as follows:
(i) Summary of the Interim Measures for Advance Notices;
(ii) Summary of Electronic Submission of Applications; (New)
(iii) Treatment of Transactions that have settled; (New)
(iv) Treatment of Transactions that are to be settled; (New)
(v) Opening of the Application Record; (New)
(vi) Arrangements for settling.
Members registering deeds are reminded not to send paper applications to Registers of Scotland at this time. Registers of Scotland are unable to receive any paper applications whether by Royal Mail, DX or other method of transfer such as personal presentment, and so these will be returned to sender.
(i) Summary of the Interim Measures for Advance Notices
Following closure of the Registers of Scotland’s offices in response to the serious health risk posed by Covid-19, interim measures were developed between Registers of Scotland, the Law Society of Scotland and UK Finance and these have since been embedded in legislation by the Coronavirus (Scotland) Act 2020.
These interim measures for Advance Notices are that the period of the Advance Notice will be extended from the date after submission (in the normal way) until the later of (i) the expiry of the usual 35 day protected period and (ii) 10 days after the application record or Sasine Register, as the case may be, is declared by Registers of Scotland to be fully reopened.
This means the protection afforded by the Advance Notice remains in place until the application record and Sasine Register fully re-open.
There are however some essential steps which must be in place before a particular transaction can safely settle using the interim measures for Advance Notices:
- First and foremost is the requirement that Advance Notices be registered. The protection from an Advance Notice is essential so cannot be dispensed with in favour of a Letter of Obligation.
Advance Notices over whole registered in the Land Register can be submitted electronically in the normal way.
Registers of Scotland have recently created a digital portal for submitting Advance Notices for Transfers of Part and First Registrations electronically.
- There must be delivery of signed deeds. At settlement the Disposition must have been delivered to the purchaser’s solicitor and the Standard Security must have also been delivered to the lender’s solicitor (which in most cases will be the borrower’s solicitor). This could however be constructive delivery by email agreement between solicitors so that the selling solicitor can demonstrate or confirm that the disposition has been validly executed and is being treated as delivered on the basis it will be physically delivered to the Purchaser's solicitor immediately after the Application Record/Sasine Register re-opens to paper applications.
Through UK Finance we had confirmation of the UK Lenders who had approved settlements using these interim measures, and we note these lenders at the end of this guidance.
(ii) Summary of Electronic Submission of Applications (New)
Registers of Scotland have created a system to allow the electronic submission of applications to register traditional deeds in the Land Register of Scotland.
This application is by way of a new digital portal on the Registers of Scotland’s website, and we refer you to the Registers of Scotland’s website for more detailed guidance.
The points that we would highlight are:
(a) once submitted electronically, there is no need to submit the physical deeds once the application record is fully open. However, it is possible that Registers of Scotland may requisition any of the hard copy deeds, and so these deeds must be stored until completion of registration.
(b) if the plan is too big to be scanned in a single image, the plan can be scanned in sections;
(c) multiple transaction can be linked;
(d) where the order in which related applications are taken on is significant, there is provision for uploading a covering letter to set out the order of registration.
(iii) Treatment of transactions that have settled (New)
Transactions that have settled, will in relation to any existing Advance Notices, continue to have the protected period afforded by the Advance Notice as extended by the Coronavirus (Scotland) Act 2020.
In addition, transactions that have already been settled will be able to benefit from the new arrangements for submitting applications electronically. Registers of Scotland will initially limit the applications that can be made electronically to applications where the date of lodging the Advance Notice was on or prior to a date to be specified. Registers of Scotland will move that date forward, to allow more applications on a rolling basis. The relevant date will be publicised on the Registers of Scotland website. The date moving forward does not preclude a deed being submitted where the Advance Notice for that deed pre-dates the most current date publicised on Registers of Scotland's website.
Where there are compelling reasons for a transaction to be submitted for registration in advance of Registers of Scotland's rolling programme, members should contact Registers of Scotland’s Customer Services team [call 0800 169 9391 and select customer services from the options] to arrange to speak to a Senior Adviser to seek to agree an earlier electronic submission.
In summary, members may either submit the deeds for registration via the digital portal (in line with the rolling programme) or alternatively retain the paper applications until we have further advice from RoS as to when they will be in a position to accept paper applications.
It is important to note that applications that are not submitted via the digital portal during this time will continue to have the protected period afforded by the Advance Notice as extended by the Coronavirus (Scotland) Act 2020.
(iv) Treatment of transactions that are to be settled (New)
Transactions that are being settled will continue to benefit from the interim measures for Advance Notices.
These transactions will be treated in the same way as transactions that have already settled, and so generally electronic submission of an application for registration would need to wait until the date of the Advance Notice fell within Registers of Scotland’s rolling programme for allowing electronic submissions.
Where there are compelling reasons for a transaction to be submitted for registration in advance of Registers of Scotland's rolling programme, then members should contact Registers of Scotland’s Customer Services team [call 0800 169 9391 and select customer services from the options] to arrange to speak to a Senior Adviser to seek to agree an earlier electronic submission.
It is expected that the existing backlog of commercial and other transactions that have been postponed pending Registers of Scotland’s electronic submission solution, and which were not able to settle in terms of the interim measures for Advance Notices, will proceed to registration through the digital portal for electronic submission by arrangement with Registers of Scotland’s Customer Services team.
For transactions that require to settle in advance, we would recommend early contact with Registers of Scotland’s Customer Services team, ahead of any proposed settlement date, to ensure that the process for submitting an application to RoS (either via the portal or as advised by the senior adviser) is agreed with RoS, allowing settlement to proceed.
It is important to note that applications that are not submitted via the digital portal during this time will continue to have the protected period afforded by the Advance Notice as extended by the Coronavirus (Scotland) Act 2020
(v) Opening of the Application Record (New)
Registers of Scotland confirm that the new procedures to allow Advance Notices and applications for registration to be accepted do not represent the full re-opening of the application record and Sasine Register for the purposes of Schedule 7 of the Coronavirus (Scotland) Act 2020.
Registers of Scotland have committed to consulting and providing notice prior to the application record being declared to be open, and the ending of the interim measures extending the duration of Advance Notices.
(vi) Arrangements for Settling
The interim measures have been put in place to provide a legal framework to allow certain transactions to settle, but any settlement would need to comply with the Government restrictions.
This guidance must be read in conjunction with The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (“the Regulations”) and the Scottish Government Coronavirus (Covid-19): guidance on moving home.
The Scottish Government guidance sets out that parties should seek to reschedule settlements and to only move home when it is reasonably necessary to do so at this time, where the move is able to be completed safely and the property is empty or can be safely vacated. As such, our guidance below should only be followed when it is reasonably necessary to move home in terms of the Regulations and accompanying guidance from Scottish Government.
Regulation 6 sets out exceptions to restrictions on gatherings. Where it is reasonably necessary to facilitate a house move is one such exception (Regulation 6(d)(i)). A breach of the Regulations constitutes a criminal offence. Under Regulation 8, a defence to such a charge of a criminal offence under this Regulation is to show that the person, in the circumstances, had a reasonable excuse. Regulation 8(5)(l) refers to moving home where reasonably necessary, as an example of a reasonable excuse. You will note that the Scottish Government’s guidance expands on this and highlights that such settlements remain subject to safety precautions being taken.
We consider that the digital portal for electronic submission of applications will be of particular benefit to non-residential transactions given the terms of the Regulations and Scottish Government guidance on moving home.
Scottish Government Coronavirus (COVID-19) guidance on moving home recommends that all parties should work either: to delay concluding missives until after the period where stay-at-home measures to fight coronavirus (COVID-19) are in place; or to include explicit contractual provisions to take account of the risks presented by the virus.
Any such provisions would be a matter of negotiation between the respective parties. Given the continuing uncertainties with the impact of Covid-19, and their impact on the particular circumstances of each transaction, we would stress the importance of tailoring each clause to the particular transaction and clients.
The key is of course explicit and therefore anyone considering negotiating such a clause should think very carefully about doing so and about covering the desired outcome during this time of uncertainty, and the practical issues of applying and enforcing such a clause. Such a clause could create unintended consequences depending on how circumstances change.
As ever, the above interim measures are designed solely to deal with one particularly important legal problem arising from the closure of the application record and Sasine Register to paper applications. A conveyancing settlement requires a number of different parties to be able to implement various legal and practical processes, which in the current circumstances are difficult to achieve.
The current restrictions imposed by Government are for the protection of public health during a national and international emergency. Our guidance should be read in conjunction with the current and any future advice from Government and the safety of members, their staff, clients and the wider public should be the most important factor in deciding whether or not it is appropriate to proceed with settlement of a transaction in present circumstances. In particular, our members should refer to the “Solicitors” section of the Scottish Government Coronavirus (COVID-19) guidance on moving home.
Members should be careful to obtain clear instructions from clients, including lenders, to settle transactions in the above circumstances.
Members should also be wary of the vulnerability of clients looking to purchase a home in the present circumstances and be careful to ensure that a client’s informed consent to proceed is adequately obtained.
None of the measures proposed should be in any way used to compel settlement of a transaction where someone is shielding from the virus. This is reflected in the Scottish Government guidance.
We have confirmation from UK Finance that the following lenders are agreeable to the interim measures for Advance Notices:
- Bank of Ireland
- Clydesdale Bank plc (Virgin Money, Clydesdale Bank, Yorkshire Bank Home Loans)
- Co-operative Bank
- Coventry Building Society (Godiva Mortgages Ltd and ITL Mortgages Ltd)
- Cumberland Building Society
- Glasgow Credit Union
- Hanley Building Society
- Kensington Mortgage Company Ltd
- Leeds Building Society
- Lloyds Banking Group (all brands, i.e. Bank of Scotland, Halifax, Halifax Intermediaries, Lloyds, BM Solutions and Scottish Widow Bank)
- M&S Bank
- Newcastle Building Society
- Precise Mortgages
- RBS (RBS, Natwest, Ulster Bank brands)
- Scottish Building Society
- Skipton Building Society
- UKAR entities (Bradford & Bingley, Mortgage Express, NRAM Ltd)
- Yorkshire Building Society / Accord Mortgages
We understand that there had been uncertainty as to whether those lenders who approved the use of the Registers of Scotland Interim Measures, still required to give individual approval for each transaction. Our view is that those lenders have provided a generic approval for the settlement under the Registers of Scotland Covid 19 Interim Measures, and approval on a transaction by transaction basis is not required. All the other requirements to report etc to the lenders and the need to comply with lenders standing instructions remain in place.
You can find specific updates on criminal courts, civil courts and Legal Aid under the headings below.
Solicitors who are willing and able to attend court are advised to ensure that they are aware of the terms of the protocol for court users that has agreed between SCTS and COPFS. Solicitors' health and safety should be their primary concern and there is no requirement to attend court if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so. Solicitors attending court should be aware that their travel and subsequent appearance is covered by Regulations 5(1), 6(d)(iv) 8(4) and 8(5)(f) and (h) of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020.
Court updates - June
- 1 June: SCTS issued an update on sheriff court business and reopening courts and tribunals buildings, in line with the Scottish Government Covid-19 move into Phase 1 of their Route map, for both criminal and civil business.
Updates - August
- 6 August - Bail Appeal Court: From Monday 17 August 2020 the Bail Appeal Court, which currently sits in Court No 1 at Edinburgh Sheriff Court, will move to a fully virtual format, sitting each weekday morning at 9am. All participants will join the proceedings by WebEx video-conferencing, which has already been deployed in other Scottish courts, including the Sheriff Appeal Court. You can read the full Sheriff Appeal Court guidance for practitioners appearing in the Bail Appeal Court on the SCTS website.
Updates - June
- 15 June - Jury Citations: SCTS issued an update that the first jury citations for potential jurors since the start of the Covid-19 lockdown, had been sent out in preparation for High Court trials to restart in Edinburgh and Glasgow in July. See their website for more information.
- On 1 June the Lord President issued a practice note on Re-introduction of Summary Criminal Business.
Updates - May
- 27 May: You can read the submission from our Criminal Law Committee to the Scottish Parliament Justice Committe on restarting jury trials.
12 May: Lord Carloway established a working group on restarting solemn trials on 12 May. It will be led by Lady Dorrian with representatives from across the sector, including the Society, to consider the practicalities of restarting jury trials as and when public health guidelines permit. The options include:
- Smaller numbers of jurors
- Social distancing measures within existing court facilities
- Measures to enable faster progression of jury trials to address backlog following easing of public health restrictions
- Potentially adjusting the sentencing powers of Sheriff Courts (summary and solemn)
- 11 May: The SCTS has published guidance in respect of facilitating guilty pleas in summary criminal proceedings in the sheriff and justice of the peace courts during the current Covid-19 emergency. The guidance, which came into effect from 11 May 2020, contains arrangements for the closed courts as well as the 10 hub courts which have remained open. Please note there has been an update to this by SCTS on 8 June advising solicitors to be aware that in providing the documents to accompany an application made in terms of either paragraph 2.1 or paragraph 3.1, these may be seen by journalists for this purpose. The letter setting out the terms of the plea of guilty, the summary of evidence provided by the prosecutor and the written plea in mitigation may all be accessible by journalists unless specifically restricted by the sheriff.
- Business has been consolidated into 10 Sheriff and JP Court Hubs across Scotland. Orders and guidance have been issued by Sheriffs Principals for each sheriffdom on how business is being transferred.
Updates - April
- The first video criminal custody hearings through direct links to police stations began w/c 6 April 2020. A pilot in the Sheriff Court will enable all legal representation for custody and remand cases to take place remotely using telephone links as well as video links foro legal representation in custody cases. This will be rolled out on 21st of April with full guidance due to be published by SCTS this week (w/c 13 April 2020).
- The Scottish Government published a discussion paper on criminal trials during the COVID-19 outbreak. This is part of the activity promised following the removal of jury provisions from the Coronavirus (Scotland) Bill. A cross-organisational working group set up by our Criminal Law Committee has submitted a response to this discussion paper.
Updates - March
- The Crown Office and Procurator Fiscal Services published information for solicitors on the impact of COVID-19 on 19 March 2020.
- The Faculty of Advocates issued a Dean's ruling on 24 March to extend rights of counsel to appear without the instructing solicitor (previously available in civil matters) to all criminal matters with the exception of trials. This does not change the obligation of solicitors to instruct counsel or solicitor advocates. We would remind all members of their responsibility to liaise with both clients and counsel about any changes to their availability during this time.
For civil business, a three-stage approach will be followed for all cases, except summary cause actions for the recovery of heritable property, with phase one currently underway. More information about each of the three phases is available on the SCTS website.
Updates - July
- Following repeated representations by the Civil Justice Committee and Law Society colleagues on behalf of our members, Scottish Courts and Tribunals Service has confirmed that courts will continue to accept simple procedure claims in paper and online. The initial position that paper-based forms submitted after 1 June (later clarified as after 15 June) would be rejected without warning was of significant concern to our members and the clients they represent. We would like to thank SCTS for listening to the feedback we shared and reconsidering their position so that paper-based forms can continue to be submitted until a full digital solution is available.
Updates - June
- 25 June; The Scottish Courts and Tribunal Service has confirmed that simple procedure action submitted on or after 1 June 2020 must be submitted via the Civil Online plaform. The Convener of our Civil Justice Committee has written to ask for a review of this decision. Read more on our website.
- 24 June: The Law Society of Scotland / Scottish Courts and Tribunal Services (SCTS) working group has met for a second time to plan for a move to Phase 2. Representatives from the Law Society Civil Justice Committee, SCTS, the Faculty of Advocates and members of the profession were included in the discussion, which covered updates on progress to date, responses to potential concerns and projections for future ways of working.
- You can read the full minute here.
Updates - May
The Law Society has set up a working group with SCTS to plan for a move to phase 2 (partial re-opening of the courts). The group had its first video meeting on 14 May.
The working group intends to hold discussions with relevant stakeholders and user groups on future work practices. The precise nature of appropriate changes will be considered in detail as we move into phase 2 and practitioners have gained greater experience of undertaking video or telephone-based hearings. In the meantime, members of the working group and the associations or user groups which they are members of are to prepare guidance for the profession to facilitate the working relationship with the courts as we move into phase 2. The timing of phase 2 remains subject to Scottish Government announcements.
- Under new guidance, effective from 1 May 2020, the following categories of sheriff court business will be able to be progressed:
- Ordinary, family and commercial actions; adults with incapacity applications; and corporate insolvency proceedings – cases sisted by the court ex proprio motu, administratively adjourned to a date on or after 1 June 2020, or in respect of which no further order was made, can progress where the court is satisfied that there is good reason why the action should be restarted and that it can be progressed remotely without recourse to a hearing which requires the leading of evidence; and
- commissary business: applications should be sent in hard copy to the relevant hub court. Court users are warned that due to significantly reduced staff resources, commissary applications will take longer to be processed.
- The Scottish Courts and Tribunal Service has published guidance outlining how the All Scotland Sheriff Personal Injury Court (ASSPIC) will restart business during the current Coronavirus situation. The guidance is effective as of 25 May 2020 and you can find further information and access the full guidance on the SCTS website.
SLAB Covid-19 updates for solicitors are available on its website.
- 13 May: SLAB has published guidance on providing applicant financial information on its website during the Covid-19 outbreak.
- On 3 April SLAB confirmed that with immediate effect and for the duration of the time that custody appearances are consolidated into a reduced number of courts, SLAB will consider the government instructions on social distancing and virus control to be a "good reason" for delegating a custody appearance by an appointed solicitor to a solicitor outside the firm.
In light of the current circumstances the Regulatory Committee of the Society has agreed that minimum CPD requirements for the 2019/2020 practice year are suspended. The CPD requirements for solicitor-advocates are similarly suspended for the 2019/2020 practice year.
Instead the CPD hours should be viewed as indicative figures to be met if possible. We believe this is a proportionate and pragmatic step for a temporary period.
Members who are required to undertake other mandatory professional development, such as new managers of practice units who are required to complete a Practice Management course, still need to do so.
Even without the minimum CPD requirement for this year keeping up to date in relevant practice disciplines and in other areas such as risk management and practice management is still extremely important. Despite the current constraints, CPD remains available in many forms, including through private study and online and members should strive to undertake CPD wherever it is professionally necessary.
We will continue to publish information and support to help members access and carry out CPD and keep up to date throughout the rest of the practice year.
The CPD requirements will return to normal on 1 November 2020 for the next practice year.
Please keep an eye on our website for updated information and contact us if you need any additional support or guidance.
Protecting client funds during Covid-19
We appreciate that as a result of the current circumstances some solicitors may encounter difficulties in complying with certain aspects of the accounts rules. Read our answers to the profession’s most Frequently Asked Questions which also outline our plans to maintain our compliance monitoring activities during the lockdown period.
Key AML risks and challenges
Please read the advisory note highlighting key AML risks and challenges for the legal profession associated with Covid-19. It also includes information to help the profession comply with their ongoing obligations under the Money Laundering Regulations.
You are still required to submit your accounts certificates in accordance with the timescales set out in the accounts rules.
We have reviewed the content and format of our Accounts Certificate and we have now moved the process online for all firms and paper Accounts Certificate will not be accepted as of 1 August 2020.
You can find further information and hard copy forms for your reference on our website and we will send you the usual online updates and reminders in due course.
If you are having difficulty completing your accounts certificate, obtaining signatures or you have any other issues or queries, please do not hesitate to contact us at firstname.lastname@example.org.
Inspection and other Financial Compliance matters
Please email rather than send hard copies of any documents or responses relating to earlier financial compliance inspections to Fincomp@lawscot.org.uk.
If you are unable to meet the agreed timescales or are having difficulty complying with any aspect of the accounts rules do not hesitate to get in touch.
If you prefer to talk to a member of the team, you can call Alison Ramsay on 0131 476 8127, Samantha Duff on 0131 476 8112, Sharon Brownlee on 0131 476 8177 or Natalie Cooke on 0131 476 8121
We will not be carrying out any on-site inspections until further notice and we are taking steps to implement remote monitoring.
Transfer of a business as a going concern (TOGC)
Clarification was sought from HMRC on the interpretation of going concern in the context of COVID-19 related closures as follows.
Interpretation of going concern:
Is HMRC planning to issue any guidance or COVID-19 relaxation or concession around the interpretation of 'going concern' in the context of businesses being sold during enforcement of COVID-19 measures? Would a different analysis be applied depending on whether staff have been furloughed or made redundant?
We would not see a business that has been temporarily closed due to Government dictated COVID-19 restrictions as suffering a ‘break in trading’ that is different from a seasonal business or a business that may shut temporarily for refurbishment. If the business was operating before the shut down and it is intended to continue once the restrictions are lifted, then normal TOGC rules would apply. This would also apply to businesses that have had to furlough staff – provided the business remains live, even if temporarily dormant because of COVID, then a TOGC could take place. However, a business that has completely ceased and remains so after restrictions are lifted would not be a TOGC. We may have to look at individual cases, but I would expect a light touch.
HMRC has designed a temporary, emergency set of processes which will allow it to continue dealing with Stamp Duty for the duration of this emergency period. Those emergency processes will allow customers and their advisers to email HMRC documents for stamping, which will be dealt with electronically rather than by applying a physical stamp. Where appropriate, the replacement process will provide assurances that HMRC won’t levy penalties on company registrars who go ahead and register changes in title; penalties also will not be levied on customers who subsequently send in physical documents for stamping once the crisis period has ended. HMRC has asked that any payments be made electronically.
HMRC have provided updates on the following
- Completing a stock transfer form
- Paying stamp duty
- Transfer schemes of arrangement
- Reliefs and exemptions on paper shares
- Getting an opinion about a payment or penalty
- Relief from Stamp Duty when documents effect intra group transfers of stock or marketable securities
HMRC are not currently accepting payment or issuing repayments by cheque. For alternative payment methods, see the Pay your inheritance tax webpage. In order to make repayments, HMRC are writing to taxpayers to get their bank details. This will allow HMRC to pay the money directly into customers’ bank accounts by Faster Payments. Customers will need to send this information in writing to HMRC. As an agent acting on behalf of the estate, they will accept your signature on behalf of the personal representatives or trustees, unless you wish to change the name of the account you want it paid to. In that case, all the people who originally signed the form IHT400 or form IHT100 must sign the letter.
Clearance confirmation and confirmation letters
HMRC will not normally issue clearance if less than a year has passed since the date of death and at this time it is considering if it needs to prioritise the initial processing of returns, to ensure customers can gain probate quickly, over longer-term services such as the issuing of clearance confirmations.
IHT 421 forms
The process for confirmation in Scotland is different to the probate process in England and Wales. HMRC will continue to provide the IHT421 back to customers seeking confirmation, such that the requirements set by the Scottish Courts and Tribunals Service (SCTS) can be met.
IHT400 and IHT100 forms
HMRC are continuing to accept paper IHT400 and IHT100 accounts and all IHT and Trusts post.
As it is currently difficult to sign these forms in person, until further notice, HMRC will accept printed signatures on IHT400 and IHT100 forms in the following circumstances:
- There is a professional agent acting, and both:
The names and other personal details of the LPRs or trustees are shown on the declaration page.
- The account includes a clear and unambiguous statement from the agent to confirm that all the LPRs or trustees have seen the account and have agreed to be bound by the declaration.
The suggested wording for this statement is:
"As the agent acting on their behalf, I confirm that all the people whose names appear on the declaration page of this Inheritance Tax Account have both:
- seen the Inheritance Tax Account
- agreed to be bound by the declaration on (page 14 of the IHT400) or (page 8 of the IHT100)."
Updated guidance to this effect has been published on the IHT400 and IHT100 pages. HMRC are currently exploring the possibility of submitting IHT400 and IHT100 forms electronically, and will provide an update in due course.
Heritage properties and undertakings with regards to conditional exemption
Due to COVID-19 many heritage properties have closed or delayed opening. Due to these actions properties or assets in the Conditional Exemption Tax Incentive Scheme may not meet their necessary undertakings. HMRC has now published guidance outlining that HMRC will not consider agreements broken if closures are due to COVID-19 public health measures. This situation will be reviewed regularly.
A new edition of the Trusts and Estates Newsletter has been published.
Time limits and penalties for late filing and payment
HMRC have updated the guidance on reasonable excuse to clarify that where customers have not been able to file their account on time, due to the impact of COVID-19, this will be treated as a ‘reasonable excuse’.
Claim time limits for IHT reliefs
HMRC are continuing to monitor the position in relation to deadlines for IHT relief claims that may be impacted by the present disruption facing customers. The three areas which have been raised are the time limits for: relief on property sales, relief on sale of shares and instruments of variation.
Digital signatures for IHT205
HMRC have confirmed that until further notice, the digital signature process now applies to IHT205 forms, as well at IHT400 and IHT100 forms. They will accept IHT205 that are not physically signed from professional agents, if:
- the names and personal details of the legal personal representatives are shown on the declaration page
- the account has been seen by all the legal personal representatives and they all agree to be bound by the declaration
- the agent includes the following statement:
"As the agent acting on behalf, I confirm that all the people whose names appear on the declaration page of this Inheritance Tax Return have both seen the Inheritance Tax Return and agreed to be bound by the declaration on page 8 of the form IHT205."
Electronic submission of IHT form update
Dropbox is being offered as a temporary measure to support agents when it is not possible or practical to submit IHT400 and IHT100 accounts by post during the COVID-19 disruption.
HMRC retains full ownership of all information/data that HMRC place in Dropbox and all information/data that an agent places in Dropbox once the agent clicks the submit button. Once submitted, only the HMRC Dropbox account holder and the HMRC security audit team can access the information.
HMRC helpline and webchat
HMRC has a set up a phone helpline to offer practical help and advice for businesses and self-employed people who are concerned about paying their tax due to coronavirus COVID-19. HMRC has asked that the helpline be contacted after you have made every attempt to resolve the issue and need clarification on specific points. They have also requested that responses are not chased for anything that is not absolutely urgent. Contact the HMRC helpline at 0800 0159 559.
On Friday 1 May 2020 HMRC launched a new webchat service. This service can be used to get help when completing the IHT400 forms and schedules, and to answer other inheritance tax and probate questions.
Members may be aware that there have been periods when Trusts Helpline call response times have increased. This is because HMRC have deployed some of their staff to help the public access the Self-Employment Income Support Scheme. To help mitigate the impact of the reduced helpline service, HMRC have introduced a mailbox so that at busy times you can email them directly. When the Trusts Helpline returns to normal, they will remove this option.This mailbox address is email@example.com. Customers are asked to leave only their contact number and a brief outline of their query and HMRC aim to respond within one working day. Please do not send any personal details.
We appreciate that in line with current Government restrictions, solicitors are limiting physical contact with clients. A number of options allowing solicitors to identify and verify their clients during this time are available
- Client identity verification software
- Video conferencing tools
- Email and third-party validation
1. Client identity verification software
You can use client identity verification software which allows you to undertake client checks remotely and securely, making it easier to maintain records for audit. The service provider should be a reliable, independent digital ID system with appropriate built-in information security protocols which will help mitigate fraud risks.
2. Client identity verification using video conferencing tools
Alternatively, you can use free basic software products that enable video conferencing to assist with the identification and verification process. This is a more manual process and where firms request that personal or sensitive information supporting identity verification be sent by email or other electronic means, you should consider taking additional steps to mitigate security risks, including, where appropriate, encryption.
To undertake manual identification and verification, we suggest the following process:
- Request that the client sends you a clear, legible colour image of their passport / ID document using a suitably secure means, such as encrypted email
- Arrange to video call the client. During this call, ask the client to hold the passport / ID document to their face. By checking the digital copy along with capturing the image of the client with the passport / ID document, you should be satisfied that they are one and the same before proceeding
- In addition to the passport / ID document, ask the client to provide you with a digital copy of their valid proof(s) of address
- Ensure that you document the rationale for adopting your revised identification and verification measures in the client / matter level risk assessment and to risk grade the relationship accordingly
- Policies, controls and procedures should be revised to take into account the new process
Should the client and / or matter in question raise additional red flags and present a higher risk of money laundering, the firm should ensure that they are satisfied that those risks are addressed before proceeding. This may include obtaining further verification of identity or undertaking other measures as stipulated under r.33 (5) of the Money Laundering Regulations 2017
3. Email and third-party validation
If you do not wish to adopt software and are unable to access videoconferencing, there is the option to use email and a third party to validate the necessary documents. It does rely on the third-party having access to their own filing systems. Where firms request personal or sensitive information be sent by email or other electronic means in support of ID&V/CDD, due consideration should be made to associated information security risks and requisite steps taken (including, where appropriate, encryption) to mitigate such risks.
- Ask the prospective client to contact their accountant or another identifiable professional, such as another solicitor or a doctor, to enquire if they are willing to certify documentation on their behalf
- The prospective client emails the documentation, for example, copies of valid proof(s) of address and passport to the certifier
- The certifier reviews the details they hold on file for the prospective client to ensure that it is correct and matches up to new information provided
- If correct, the certifier emails both the client and a contact at the firm from their professional email address confirming:
- Their relationship to the client
- How long they have known the client
- That the details on the valid proof of address match the details they, in their professional capacity, hold on file
- That the photograph in the valid passport bears a true likeness to the client
- Their job title, full name, address and contact numbers if not included in their email signature
- Conduct an online check to establish the identity of the certifier and their company / firm and retain a screenshot of the same for your records. Similarly, you can check online to see if the certifier is registered with the professional body they purport to be a member of.
If the certifier is using an Adobe pdf, they can use the ‘fill and sign function’ to certify that the copies they had sight of, mirror the details that they hold on file and include the information in the bullet points above.
You should amend your policies, controls and procedures accordingly to reflect the interim changes and to record the new procedure in their client / matter risk assessments.
Should the client and / or matter in question raise additional red flags and present a higher risk of money laundering, the firm should ensure that they are satisfied that those risks are addressed before proceeding. In higher risk situations, for example, further verification (including verification of source of funds/wealth) will likely be appropriate, along with other measures as stipulated under r.33 (5) of the Money Laundering Regulations 2017
It is important to note that the regulations have not been relaxed in the current situation. We hope our suggested procedure above is useful but solicitors should remember that if they cannot complete adequate due diligence they should not proceed with the transaction.
Please also see the latest Legal Sector Affinity Group (LSAG) Covid-19 Advisory Note for further UK legal sector-wide information.
The Coronavirus (Scotland) (No2) Act 2020 Schedule 4, part 7 came into effect on 27 May 2020 and has made changes to the requirements for the personal presence of a notary or solicitor when executing certain documents.
Schedule 4 part 7 states:
(1) The following requirements (however expressed) do not apply -
(a) a requirement for a relevant person to be physically in the same place as another person when that person -
(i) signs or subscribes a document,
(ii) takes an oath, or
(iii) makes an affirmation or declaration,
(b) a requirement for another person to be physically in the same place as a relevant person when the relevant person signs or subscribes a document.
(2) In this paragraph -
“relevant person” means -
(a) a solicitor,
(b) an advocate,
(c) a notary public,
“requirement” means a requirement arising from an enactment or rule of law.
(3) For the avoidance of doubt -
(a) the requirements described by sub-paragraph (1)(a) include a requirement that may be fulfilled by the physical presence of a professional of a type not mentioned in the definition of “relevant person” as well as by a professional of a type that is (for example, it includes a requirement for the physical presence of a solicitor or a registered medical practitioner), but
(b) sub-paragraph (1) only causes such a requirement not to apply in relation to a professional of a type that is mentioned in the definition of “relevant person”.
What this means for notarising documents
Schedule 4 Part 7 has relaxed any rule of law or statute which requires a solicitor or advocate (s9 of the Requirements of Writing (Scotland) Act 1995) or notary (general notarial law) to be physically present when the granter signs a document where physical presence would have ordinarily been needed. It does not affect the ordinary law which requires witnesses to certain types of document such as wills or registerable deeds where there is no need for a solicitor or notary to be present. This approach is limited by the validity of the Coronavirus legislation.
Accordingly a solicitor or notary may authenticate the subscription or execution of a document remotely using video technology during the coronavirus crisis whilst social distancing measures or the provisions of the Health Protection (Coronavirus), (Restrictions) (Scotland) Regulations 2020 apply to preclude meeting individuals in person.
The solicitor or notary must be satisfied that the procedure followed will not preclude the acceptance of the document concerned by the jurisdiction where it is ultimately received.
This guidance acknowledges that there are other ways to authenticate the execution of a document remotely but video technology should make execution of documents under section 9 of the Requirements of Writing (Scotland) Act 1995 and notarial documents easier for individuals and notaries who cannot be physically present together for the execution of such documents.
In this guidance:
- “video technology” means any electronic device or process that facilitates communication of visual images and audio in real time between a notary and a remotely located individual, including a remotely located individual who has visual, hearing or speech impairment:
- “remotely located individual” means an individual who is not in the physical presence of the notary who wishes to have the execution of a document authenticated by a notary or who is blind or unable to write and wishes a solicitor to carry out the execution of a document under section 9 of the Requirements of Writing (Scotland) Act 1995) and ‘individual’ shall be interpreted accordingly.
2. Notarial acts using video technology
(a) A notary may, subject to the conditions set out in paragraph 4, use video technology to certify the execution of a document signed (including by electronic signature) by an individual by means of a notarial act.
(b) Both parties should begin the process by each having an unsigned version of the document, in relation to which notarial acts are to be performed, which can be transmitted one to the other via post, fax, email or other electronic means.
The individual will require to provide the notary with documents necessary to satisfy the notary as to their identity having regard to the Coronavirus Guidance on Non Face-to-Face Identification and Verification published by the Society (available on this page under Practice Updates Non face-to-face identification and verification) which provides guidance on client identity verification using video conferencing.
The notary can use free basic software products that enable video conferencing to assist with the identification and verification process. This is a more manual process and where personal or sensitive information supporting identity verification is sent by email or other electronic means, the notary should consider taking additional steps to mitigate security risks, including, where appropriate, encryption.
To undertake manual identification and verification, the notary should follow this process:
- Request that the individual sends a clear, legible colour image of their passport / ID document using a suitably secure means, such as encrypted email
- Arrange to video call the individual. During this call, ask the individual to hold the passport/ID document to their face. By checking the digital copy along with capturing the image of the client with the passport/ID document, the notary should be satisfied that they are one and the same before proceeding
- In addition to the passport/ID document, ask the individual to provide a digital copy of their valid proof(s) of address
- The notary should ensure that the rationale for adopting revised identification and verification measures is documented in the client/matter level risk assessment and to risk grade the relationship accordingly
- Policies, controls and procedures should be revised to take into account the new process
Should the individual be unable to satisfy these requirements and/or present a higher risk of money laundering, the firm should ensure that they are satisfied that those risks are addressed before proceeding. This may include obtaining further verification of identity or undertaking other measures as stipulated under r.33 (5) of the Money Laundering Regulations 2017.
(c) Once both parties have an unsigned copy of the relevant document the notary should take steps during the video conference to ensure that the document that they have sight of is an exact copy of the same document that is before the individual. This can be done by, for example, having the individual read out the document or by having the individual share their screen.
Once the notary has confirmed that each document is the same, the notary should then either place the individual on oath or take the solemn affirmation or receive the statutory declaration and observe the signature or requisite act of the individual.
The signed document must then be sent to the notary to allow them to notarise it and this can be done is a number of ways:
i) If the document is an electronic document and has been electronically signed by the deponent it can electronically notarised upon receipt;
ii)If the document is a traditional, hard-copy document and has been signed by traditional means that document can be returned to the notary by post or courier for them to notarise;
iii) In order to fulfil the intention behind the legislative change it will be acceptable for a traditional document that has been signed in a traditional manner to be scanned and returned to the notary to notarise upon receipt.
If option (iii) is considered the most appropriate or necessary process to undertake it would be best practice to request that the original, traditionally signed document is kept by the individual until such time as the current movement restrictions are no longer in place as this will allow for the document to be provided, when safe to do to so, to the notary to form part of their file and audit trail.
The notary should also take care when producing a narration (see 2(i) below) to ensure that if the process in (iii) is followed that it is clear that they have notarised a ‘copy’ rather than an ‘original’ document.
(d) If practicable the notary or where applicable the solicitor must, having obtained the prior consent of the individual, record the video conference and retain that recording for a period of 10 years.
(e) Where it is not practicable to record the video conference the notary shall, having obtained the prior consent of the individual, take screen capture photographs of the individual and his or her identity documents.
(f) The notary must use all reasonable endeavours to establish that this procedure will result in the acceptance of the document in the receiving jurisdiction. If the document will not be accepted in the receiving jurisdiction the notary must so advise the individual.
(h) The notary should not be considered, and should not be described as, a witness to the document certified under this guidance.
(i) The notarial certificate should narrate the exact procedure followed by the notary. The certificate must not state or imply that the notary was physically present with the individual when the document was executed. The procedure followed, including a description of the type of video technology used, should be recorded.
(j) Where the document has been sworn/declared before a notary by way of video conference rather than in person, appropriate wording should be inserted in the declaration to confirm that.
“Declared by way of video conference
Signed: [Signature of deponent]
This: ______________ day of ___________ 20XX
At: [insert place of signing by deponent]
before me [insert name of person authorised to administer the oath/declaration], via video conference which I attended from [my address at] [insert address].”
3. Requirements of Writing (Scotland) Act 1995 section 9
(a) A solicitor may use video technology to subscribe a document or sign a testamentary document under section 9 of the Requirements of Writing (Scotland) Act 1995.
(b) The requirement under section 9(2) that ‘subscription or signing by a relevant person under subsection (1) above shall take place in the presence of the granter’ does not apply in terms of Schedule 4 Part 7 of the Coronavirus (Scotland)(No2) Act 2020.
(c) The solicitor must ensure that the granter and the solicitor have complied with the terms of section 9(1) by video technology and that the other requirements of this guidance regarding client identity verification using video technology have been complied with.
4. Refusal to perform notarial act
A notary who is requested to perform a notarial act using video technology may refuse to do so where the notary is not satisfied that the notarial act, if performed, would comply with this guidance.
5. Saving of existing requirements
This change in the Society’s guidance does not affect the application of the existing guidance concerning confirmation of the understanding of a deponent or the manner of administration of an oath or affirmation.
6. Effect and Expiry
This guidance comes into effect on 27 May 2020.
This guidance shall cease to have effect on the repeal of Schedule 4 part 7 of the Coronavirus (Scotland) (No2) Act 2020.
Personal Injury practitioners have been working together to produce a ‘ways of working’ agreement to support progress in cases which might otherwise be stalled as a result of the coronavirus outbreak. Find out more and access the agreement.
Solicitors who are willing and able to attend police stations to provide advice to clients during the course of police interviews should ensure that they are aware of the guidance produced by Police Scotland in relation to non-police personnel attending at police stations.
The guidance is available to read on the Police Scotland website.
Police Scotland have made it clear that their position is that it is the responsibility and duty of employers of non-police personnel attending such interviews to provide them with suitable and sufficient PPE to allow them to carry out their role.
We are mindful of the fact that many solicitors will not have or be able to access their own PPE and accordingly we take this opportunity to remind solicitors that their health and safety should be their primary concern. Our position remains that there is no requirement to attend for a police interview if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so.
We will continue to engage with Police Scotland with a view to ensuring the provision of safe and secure systems for undertaking police station interviews in accordance with all NHS and Scottish Government advice
Update from the Office of the Public Guardian
Due to the outbreak of COVID-19, the Office of the Public Guardian is operating with reduced staffing levels and is currently only able to process critical/urgent work. You can find information and guidance on appropriate use of the expedited services and possible temporary alternatives to POA on the OPG website.
Covid-19 – Best practice for execution of powers of attorney when it is not possible to meet with the client
Sections 15, 16 and 16A of the Adults with Incapacity (Scotland) Act 2000 require that the solicitor certifying capacity has interviewed the granter immediately before the granter subscribed the document.
We appreciate that, given the current situation, solicitors may not be able to meet clients, or may wish to avoid meeting them, for the safety of their clients, themselves and others. At the same time they will, as far as possible, wish to maintain accessibility to the legal services that the public requires. It will rarely be appropriate to delay complete fulfilment of an instruction to have a power of attorney granted and registered. We have therefore been looking at ways that solicitors are able to discharge their obligations and, with the agreement and approval of the Public Guardian, the following procedure may be adopted to satisfy the legislative requirements.
- The solicitor would require to provide the granter with the power of attorney document in advance either by post or, where the client has facilities to print it off, by email (preferably a PDF version which cannot be altered).
- The granter of the document should not sign the document in advance of the interview.
- The granter must show the solicitor via video conference that the document is unsigned prior to the interview.
- The interview will take place and all the normal requirements for such an interview should be fulfilled, during the video conferenced interview.
- If, following all normal criteria, the solicitor is satisfied that the document can properly be certified, then, at the solicitor’s request, the granter should sign the document and the witness should sign as appropriate. The granter should then show the solicitor the signed copy power of attorney document.
- The client should be instructed promptly to return the hard copy signed copy to the solicitor: see below.
The interview of the granter can take place by way of video conference between the solicitor and their client. This may be Skype, Facetime or other video conferencing means. While it is not essential that a power of attorney document is witnessed, as the document becomes self-proving at the point of registration, it would be prudent that the document is witnessed by someone attending with the client, where possible. The witness, of course, cannot be the attorney or one of the proposed attorneys.
Where it is possible to have a witness attend with the client, the solicitor should involve the witness in the process, as viewed by the solicitor.
Once the document is signed the client should arrange to return the original, hard copy signed document to the solicitor as soon as possible. A photocopy or scanned copy will not suffice for this purpose, as sections 15(3) and 16(3) of the Act sets out that a continuing and/or welfare power of attorney shall be valid only if it is expressed in a written document which is subscribed by the granter. The solicitor can only register the document once the principal, wet ink copy, is received. The certificate requires to be incorporated into that original document. It should be signed by the certifier on the same date as execution by the granter and attached to the original document once it is received.
It is a matter of professional judgement for a solicitor asked to certify as to whether these arrangements are appropriate in any individual case; and, if these arrangements are followed, whether the solicitor can thereupon properly certify. This guidance refers only to the practical methodology for signing and certifying at a distance from the granter. It will mostly only be appropriate where the client is an existing client and you are satisfied that the client has capacity, there is no undue influence, and there is no other vitiating factor.
Where a new client wishes to instruct you in a power of attorney matter the same principles apply and solicitors will need to exercise their own judgment as to whether or not it is appropriate to conduct the entire piece of business using video technology. It is not to say that it would not be compliant with the relevant legislation. However, the professional obligations to ascertain relevant capacity, and to ensure that there is no undue influence or other vitiating factor, can prove to be more difficult when no physical meeting takes place. It is for those reasons that caution should be exercised in proceeding in this way for new clients.
The procedure recommended above does not necessarily preclude a solicitor as certifier being satisfied by other means that the document has been signed by the granter, and signed immediately after the interview, in the absence of impersonation, undue influence, or other vitiating factor. In a particular case, for example when the granter is an existing client personally seen recently (say, within a month), the solicitor might feel entitled to rely upon assurances (or even an assurance) by telephone. However, this cannot be a “balance of probabilities” or similar assessment. Certification is the protection against all vitiating factors. Certifying solicitors must be satisfied, in each individual case, that they can properly certify, and that the decision to do so can be robustly justified if that should subsequently become necessary. There may be occasions when the solicitor concludes that it is inappropriate to certify, even when the procedure recommended above for use of video link is followed. The risks will be greater if the interview not only is not conducted face-to-face, but the solicitor cannot see what is happening.
Our current Guidance on Continuing and Welfare Power of Attorney and Vulnerable Client Guidance should be referred to and followed as necessary. We would mention that, prior to the current situation, review and updating of both of those Guidance documents was underway and is continuing.
New guidance, published on 1 February 2020, has been developed to improve price transparency for legal services to help consumers in Scotland make better-informed choices. In light of the Coronavirus outbreak, we have made the decision to delay the date on which the guideline will take effect until 31 January 2021. You can find further information on our website.
Update from Scottish Government at 29 May 2020
The Scottish Government have issued an update responding to Scotland’s route map through and out of the crisis and outlining how phases one and two in the route map apply to the housing market and home moves. You can access the update on the Scottish Government website
Law Society of Scotland Property Law Committee guidance
Our Property Law Committee would like to take this opportunity to provide some helpful advice to assist those dealing with property related during this period of uncertainty.
- It is important that members speak to their clients about any issues specifically relating to Covid-19 which may impact on the solicitor’s legal and practical ability to settle their transaction.
- It is also important to plan ahead where possible and enter into early dialogue with solicitors on the other side of transactions.
- Ensure that clients and colleagues at both your own firm and those on the other side of transactions are aware of any changes to working patterns or contact details as a result of Covid-19.
- In these uncertain times, it is particularly important, that we treat, colleagues and clients, who may be under additional stress and strain, with due respect and courtesy.
Scottish Government property working group - 15 May update
As restrictions on moving home South of the Border have been relaxed, the clear advice in Scotland remains that home moves can only happen where reasonably necessary.
While the health and safety of the people of Scotland is the Scottish Government’s top priority, they are aware that the current restrictions are causing difficulty for many people who want to buy, sell or move home. We all want to get the housing market moving as soon as it is safe to do so, but it is important that any loosening of restrictions should only be done in line with the medical and scientific evidence and advice specific to the pandemic in Scotland.
We do however require to plan for a relaxation of restrictions for the housing market in due course to ensure that moves can be completed safely and in line with all and any longer term restrictions and social distancing measures.
We have had ongoing engagement with Scottish Government and other stakeholders, including Registers of Scotland, ESPC, and Millar and Bryce during this time and are pleased to have been invited by Scottish Government to take part in a working group with other stakeholders and industry bodies with a view to issuing industry-related guidance to ensure a consistent approach across the sector at the appropriate time.
Adding clauses relating to COVID-19 to missives
Scottish Government Coronavirus (COVID-19) guidance on moving home recommends that all parties should work either: to delay concluding missives until after the period where stay-at-home measures to fight coronavirus (COVID-19) are in place; or to include explicit contractual provisions to take account of the risks presented by the virus.
Any such provisions would be a matter of negotiation between the respective parties. Given the continuing uncertainties with the impact of Covid-19, and their impact on the particular circumstances of each transaction, we would stress the importance of tailoring each clause to the particular transaction and clients.
The key is of course explicit and therefore anyone considering negotiating such a clause should think very carefully about doing so and about covering the desired outcome during this time of uncertainty, and the practical issues of applying and enforcing such a clause. Such a clause could create unintended consequences depending on how circumstances change.
Witnessing formal letters
Members may be working from home and this may present challenges such as the availability of others to witness formal letters. Members will be aware that there is no requirement under the Requirements of Writings (Scotland) Act 1995 for missives to be probative. Members holding a Law Society of Scotland Smartcard can also use their qualified electronic signature for this purpose.
Registers of Scotland
We continue to consult with Registers of Scotland on what priorities should be during this time and would refer you to their online update. As above, please note we have issued guidance to enable interim RoS measures for transactions directly affected by the closure of the Applications Record.
Wednesday 15 July 2020
Following discussions with Scottish Courts and Tribunal Services (SCTS), our Civil Working Group, has received confirmation that the Auditor of the Court of Session and the All Scotland Sheriff Personal Injury Court (ASSPIC) will now conduct taxations of judicial accounts by way of tele-conference. You can find out more on our website.
Wednesday 1 July
From Wednesday 1 July, Revenue Scotland's main telephone enquiry line will reopen for service, operating revised midweek hours, with experienced Revenue Scotland staff taking calls and providing support whilst working remotely.
All LBTT returns (conveyance, lease, or lease review) made from 1 May must be submitted online, using the Scottish Electronic Tax System (SETS). Paper forms, submitted by post can no longer be accepted.
Similarly, from 1 May, Revenue Scotland will no longer be in a position to accept payments made by cheque. Payments must be made by BACS, or where available, Direct Debit.
ADS Repayment claims
ADS repayment claims being progressed by agents on behalf of taxpayers should continue to be made in the usual manner through the SETS system. Taxpayer claims for repayment of ADS can now be made using the new online claims process.
Three-year lease review returns
For taxpayers completing three-year lease review returns:
- Three-year lease review returns (including assignations and lease terminations) should continue using the current online process
- Returns for lease transactions with more than one tenant should be completed using the new online return forms and emailed to Revenue Scotland,
Further information re all of the above and contact details are available on the Revenue Scotland dedicated Coronavirus update page.
Please be aware that a number of coronavirus-related scams have already arisen in the wake of the outbreak. If you suspect a scam, contact Action Fraud on 0300 123 2040, or the FCA Consumer Helpline on 0800 111 6768.
The BBC has a report on a number of scams.
The National Crime Agency have also provided information and guidance on how to protect yourself against fraud and scams in the current circumstances.
Specialist accreditation renewal
In response to the current restrictions, all current specialist accreditations due to expire on or before 30 June 2020 will be extended automatically by 12 weeks, without the need for a new application to be submitted.
Family and Commercial Mediation accreditation renewal
In light of the on-going restrictions, we have amended the scheme for accreditation of family and commercial mediators to permit the extension of accreditations by up to three calendar months. Any mediators whose accreditation is extended during the lockdown period will be contacted and advised of the extended date of expiry of their accreditation.
If you have any queries or are unsure when your accreditation is due to expire please contact Elaine MacGlone.
Best practice for taking instructions and arranging execution in relation to wills when it is not possible to meet with the client
Current restrictions prevent solicitors from meeting their clients face to face. At the same time, they will, as far as possible, wish to maintain access to the legal services needed by the public; and this may be particularly important where a client wishes to make or alter a will. We have put together some best practice notes for taking instructions and arranging execution in relation to wills when it is not possible to meet with the client.
It will rarely be appropriate to delay complete fulfillment of an instruction to have a will prepared and signed and accordingly we have been looking at ways that solicitors are able to discharge their professional obligations. As such, we have produced the following temporary guidance during this time - this will be removed at a future date.
Where instructions have already been taken
a) For clients whose instructions have been given to a solicitor prior to either the solicitor or client having to self-isolate the will can be posted (or emailed as a PDF to avoid alteration) to the client for signing. This is based on the assumption that prior to the period of self-isolation (of either party) the solicitor had the opportunity to assess the client’s capacity and susceptibility to undue influence/circumvention and had no concerns in that regard.
The client can be given directions to complete execution of the will in the normal way if a suitable person is available to witness the client's signature in the client's presence and the normal testing details can be completed. The will can then be returned to the solicitor in the normal way if the client chooses to do so.
b) It may be however that a suitable witness is not available and able to be physically present when the client is in a position to sign the will. It may then be feasible to arrange a video link with the client. If this can be done, the solicitor can witness the client signing each page (taking care that the solicitor is not excluded from being an effective witness, for example by being appointed executor directly or through a trust company)or have someone else on the video call do so. The further opportunity may then be taken to assess the capacity of the client and, using their professional judgment, the solicitor can consider whether any undue influence is being exerted on the client.
The will can then be returned to the solicitor. We consider that the witness, as long as they have seen the client actually sign each page, can on receipt of the signed will, legitimately sign and complete the signing details on receipt of the signed will. We would anticipate that this would be deemed to form one continuous process as required by the legislation. However, as set out in the next paragraph, the key point is that client will have signed a fully valid will.
c) If the isolation of the client is such that no witness is available physically with the client and there are no video facilities available, the client can be told that their signature alone at the end of the will is effective to make a valid will, which can then be returned to the solicitor after signature. If such a will remains in that state until the death of the client, while it will be valid, it will be necessary as part of the Confirmation process to "set up" the will as having been signed by the client, by affidavit evidence as to their signature. For this reason, it will generally be preferable to replace such a will by a formally executed version when the current conditions no longer prevail.
d) If written instructions have been received from an existing client, these can be acted upon, but should be subject to confirmation at least by telephone and ultimately ideally by the video link suggested above.
e) If instructions are received from or attempted by a new client, then a meeting between solicitor and clients can take place over video conferencing facilities but there are still requirements on the solicitor to ensure that they are satisfied that the client has capacity and is not being unduly influenced into providing instructions on a will/an amendment to a will. We appreciate that these can be difficult determinations to make however we trust that each solicitor will exercise their own professional judgement when making these decisions. If the solicitor is any doubt they should decline instructions.
f) If the client is completely new to the firm then identification checks can be carried out using a video conferencing facility and by having the client hold up identity documents to allow the solicitor to view them. The solicitor could then take a screenshot of the video conference for their file or, where possible, have the client scan and send in the identity documents that they had shown to the solicitor. For further information on identity checks on clients please see here, under practice updates, Non-face to face identification and verification.
g) Given the need for identity checks, assessments of capacity and/or checks for undue influence to be carried out it is not possible to take instructions solely over the telephone and then send a document to a client for signing. Despite the very real, practical difficulties that the profession face in the current climate we are unable to waive the requirement for these checks to be carried out.
h) In a final possible case, where no possible visual contact at all can be made, what a solicitor can do is limited. However, there is nothing wrong in telling an actual or prospective client that a testator can write out clearly their own will or other testamentary instruction. Solicitors can confirm that subscription alone, while not ideal, will generally create valid testamentary instructions; and may also supply details of what is required for formal validity (that is subscription on each page before a single witness (who need not know the contents of the document) and who should sign on the last page after the testator's signature and to which should be added the date and place of signature and the witness's full name and address.
i) This should not be taken as any kind of general encouragement towards the creation of "homemade" wills, which have generated much difficulty in many cases over the years and of course such a process does nothing to address capacity, undue influence and similar matters. In the present circumstances and for many people however it may be better to give such limited advice to enable wills to be created rather than for prospective testators to have nothing at all in place.
For any solicitor undertaking this type of work we would remind you that there is Vulnerable Client Guidance should be available on our website.
Please note that we have also produced a best practice for those undertaking power of attorney work which can be found on our dedicated COVID19 page under practice updates, power of attorney. This is supplementary to our Guidance on Continuing and Welfare Powers of Attorney.
For guidance on notarial execution, further information can be found here under practice updates, Notary public – execution of document.
A new Future Fund to support innovative UK companies through the impact of the coronavirus outbreak will open for online applications on Wednesday 20 May.
Scottish solicitors will play a key role in assisting clients to access the convertible loans and will facilitate settlement. It is a requirement of the scheme that this is carried out by a UK regulated solicitor permitted to receive and hold client money. Solicitors will also provide legal advice on the scheme to third-party investors or the investee company.
The Scottish Government has published Coronavirus (COVID-19): guidance for private landlords and letting agents
The guidance states that no landlord should evict a tenant because they have suffered financial hardship due to Covid-19 and landlords should be flexible with tenants facing financial hardship and signpost them to the sources of financial support available.
We have now published the results of a financial impact survey undertaken with over 150 cashroom managers working in private practice.
The responses show the clear impact of COVID-19 on the profession with 90% of respondents reporting a downturn in new business, and the majority also reporting reduced turnover and cashflow.
This information has, and will continue to, inform discussions with the Scottish Government and others about support for the profession.
We have also undertaken a telephone survey of Heads of Legal in the in-house sector and recently completed a wider scale online survey of members working in-house. The results of the telephone survey are available on the research page of our website and the responses to the online survey are currently being analysed for reporting and future publication.
You can find our about the different funding packages that have been made available by the UK and Scottish Governments on the Find Business Support website.
Around £220 million of further grants are being made available for businesses, including the recently self-employed.
The new package of measures includes:
- £120 million to extend the Small Business Grant scheme to ensure that, in addition to a 100% grant on the first property, small business rate payers will be eligible to a 75% grant on all subsequent properties.
- £34 million Newly Self-Employed Hardship offering £2,000 grants to those who became self-employed since April 2019 and are therefore ineligible for UK support.
- £45 million Pivotal Resilience Fund providing bespoke grants and wrap around business support to SMEs who are vital to the local or national economic foundations of Scotland.
- The remaining £20 million is aimed at small and micro creative, tourism and hospitality companies not in receipt of business rates relief.
Applications for the £100 million fund will be open by the end of the April. The new arrangements for the Small Business Grant will be in place to receive applications on 5 May.
The Scottish Government announced a funding package on 18 March of £2.2 billion for businesses. Among the elements of the support package of particular relevance to the legal community are:
- £10,000 grants for SMEs in receipt of the Small Business Bonus Scheme or Rural Relief – advice at this stage is to contact your local authority for information on how to apply
- 1.6% relief for all properties, effectively freezing the poundage rate
- Pressing for further measures including tax ‘holidays’, PAYE breaks and encouraging rates referrals, with further information to follow
- An emergency meeting of the Financial Services Advisory Board will be convened to discuss how the costs of extending financial support will be shared by the banking sector
On 12 May, the UK Government announced it is to extend its furlough scheme until the end of October 2020. Furloughed workers across UK will continue to receive 80% of their current salary, up to £2,500 and new flexibility will be introduced from August to help get employees back to work.
Applications to the UK Government Bounce Back Loan scheme, offering loans of between £2,000 and £50,000 through accredited lenders to SMEs affected by coronavirus pandemic, opens on 4 May. The UK Government will guarantee 100% of the loan, which will be interest free for the first 12 months. The total term of the loan will be six years. Businesses which are already receiving support through the Coronavirus Business Interruption Loan Scheme (CBILS) can transfer their funding to the Bounce Back scheme.
The UK Government budget on 11 March included announcements on a package of business support measures to support businesses and individuals affected by COVID-19, including additional funding and changes to Statutory Sick Pay.
On 17 March a package of business support measures, largely covering businesses in England, was announced by the Chancellor. The Scottish Government subsequently passed all consequentials on to Scottish businesses and mirrored the provisions as set out above.
On 20 March, the UK announced a further raft of measures, including:
- A Coronavirus Job Retention Scheme, to which any employer will be able to apply for a contribution of up to 80% of a worker's wage up to £2,500 per month, backdated to the start of March
There is a helpful Q&A on the UK Government website (updated on 4 April 2020) to help you find out if you’re eligible to claim for your employees’ wages through the Coronavirus Job Retention Scheme and how much you can claim to cover wages for employees on temporary leave ('furlough') due to coronavirus (COVID-19)
- The online calculator tool has been updated so that it covers more employment circumstances. The update will mean that employers can use it to work out what they can claim for most employees who are paid irregular amounts each pay period, as well as those who are paid fixed amounts
- Live webinars on a variety of COVID-19 related topics including the Job Retention Scheme and how to make a JRS claim are also available
VAT bills until the end of June will be deferred to the end of the tax year
- Income tax payments due in July 2020 under Self Assessment to be deferred to January 2021
- An extension of the interest-free period for Coronavirus Business Interruption Loan Scheme up to twelve months
- A new lending facility for large firms to be made available shortly via the Bank of England to aid liquidity
On 26 March the Chancellor announced a support package for the self-employed, including 'members of partnerships'
- This includes a direct cash grant of 80% of average profits over the past three years will be available up to £2,500 per month.
- The scheme will be open to those with a trading profit of less than £50,000 in 2018-19 or an average trading profit of less than £50,000 from 2016-17, 2017-18 and 2018-19.
- To qualify, more than half of their income in these periods must come from self-employment.
- Those who qualify are currently advised not to contact HMRC at this stage - HMRC is to identify eligible taxpayers and contact them directly with guidance on how to apply.
- The first payouts from this scheme are anticipated to take place in June
- As per the previous week's announcement, self employed people may also benefit from VAT bills until the end of June being deferred to the end of the tax year; the deferral of income tax payments due in July 2020 under Self Assessment to January 2021; and business continuity loans.
- Self-employed people may also be able to apply for Universal Credit.
These are two separate categories – essential business is not necessarily carried out by a key worker in all cases.
The Scottish Government has published a definition of key workers to be used as a guide for councils to implement at a local level. As there are 32 different councils in Scotland with different local priorities, there will be a slight difference in who is deemed a key worker in each regional area. It is expected that each local authority will publish its list of key workers by the end of the week commencing Monday 23 March.
The broad definition laid out by the Scottish Government highlights key workers as those “in posts which ensure that essential services can be delivered and cover tasks within the local community which support the vulnerable and aid community resilience”. This is then further divided into three categories:
- Category 1 – Health and Care workers directly supporting COVID response, and associated staff; Health and Care workers supporting life threatening emergency work, as well as critical primary and community care provision; Energy suppliers (small numbers identified as top priority already); staff providing childcare/learning for other category 1 staff
- Category 2 – All other Health and Care workers, and wider public sector workers providing emergency/critical welfare services (e.g. Fire, Police, Prisons, Social Workers, etc), as well as those supporting our Critical National Infrastructure, without whom serious damage to the welfare of the people of Scotland could be caused
- Category 3 – All workers (private, public or third sector) without whom there could be a significant impact on Scotland (but where the response to COVID-19, or the ability to perform essential tasks to keep the country running, would not be severely compromised)
Critical childcare and learning provision
The Scottish Government has asked local authorities to make provision for children of key workers in their areas to ensure that their parents can continue to work. Local authorities have been asked to take the above definition as a guide and prioritise critical childcare and learning for key workers accordingly.
The local authority support is for those who have no alternative arrangements. The Scottish government guidance says that if one parent is a key worker and the other is not, the non-key worker should normally be expected to provide childcare.
To find out whether you are eligible to apply, please contact your local authority. All local authority contact details can be found on COSLA's website.
Further information about key workers can be found on the Scottish Government's website.
Those businesses that have not been specifically required to close have been asked only to continue operating if their business is essential. The Scottish Government has not provided a definition or list of what they deem essential business. It has asked employers to make the judgement themselves, taking into consideration the following:
- is what you do essential or material to the effort against the virus or to the wellbeing of society?
- if so, can your staff work from home?
- if not, can you practice safe social distancing and comply with ALL other standard health and safety requirements?
If the answer to none of the above questions is yes, the advice on a precautionary basis is to close.
The guidance implores businesses to be responsible and focuses on reducing travel and social distancing. If there is scope for a business to change the way it operates to comply with these guidelines without having to close, this is recommended.
For full details, please visit the Scottish Government's website.
Scottish Enterprise has collated information on available support to help businesses manage the impact of COVID-19. A further update on 21 March provided information for businesses trading internationally and a business disruption checklist.
The Bank of England
A market notice by HM Treasury and the Bank of England was issued on 18 March providing information on how the Covid Corporate Financing Facility (CCFF) will operate.
A joint statement was issued by UK banks and the Bank of England on Covid-19 on 20 March, advising that banks are 'rapidly getting systems in place' to offer support. Further information has also been published on the Covid Corporate Financing Facility, including a detailed Q&A. Businesses can discuss eligibility by contacting CCFFeligibleissuers@bankofengland.gsi.gov.uk.
Scottish Ministers have advised any organisation of any size to contact their banks at the earliest opportunity to discuss any concerns about cashflow, whether imminent or on the horizon. Assurances have been made that banks will view requests to help otherwise sustainable businesses to continue to operate in the short- to mid-term sympathetically. This of course extends to the legal community.
A number of banks have set up support services for business affected by the Covid-19 outbreak. You can find out more using the links below or contact your own bank directly.
Lloyds Banking Group
The Association of British Insurers has produced a Q&A on business insurance and the impact of the outbreak.
Clio emergency relief fund
One of our member benefit companies, Clio, has set up an emergency relief fund of US$1m for legal firms affected by the current crisis. This global fund is available for Scottish firms and solicitors and is not limited to current Clio clients.
The Scottish Business Resilience Centre
The Scottish Business Resilience Centre has issued a number of updates on business resilience during the outbreak.
You can find out more about the support available from the Society and our partners during the Coronavirus outbreak on our dedicated business support section on our website.
It includes an employment law Q&A, an electronic signature guide, practical financial measures to introduce and information on cashroom support and more.
Mental Welfare Commission for Scotland
As with many organisations during this outbreak the Mental Welfare Commission for Scotland have temporarily closed their physical offices are operating remotely. They have confirmed that during this time they can receive and will accept notification of guardianship applications by email at firstname.lastname@example.org
Messengers-at-Arms and Sheriff Officers (Officers of Court)
Messengers-at-Arms and Sheriff Officers provide an essential public service. During this period, it is critical that we maintain public trust and confidence by maintaining the essential services that support justice.
The Scottish Government’s Directorate for Justice, following the most recent measures taken by government in response to the Covid-19 crisis, confirms that the work of officers can be regarded as “essential” and justifiable, notwithstanding the current public health advice, but only in the very limited circumstances of the courts’ operating model for emergency civil business. Find out more.
The Office of the Public Guardian
The Office of the Public Guardian remains closed to the public.
If you require to intimate a guardianship application on OPG, it can be sent in the normal way as they are still receiving mail, alternatively email it to email@example.com
Scottish Legal Aid Board
In response to common concerns raised in relation to COVID-19, SLAB is providing online updates for those affected. An initial four-point plan for revised arrangements during the crisis was set out on 20 March.
We have written to SLAB asking for the legal aid framework to be amended to allow written mitigation to be included within the scope of current ABWOR.
The Minister for Community safety has written a letter to the profession with a roundup of actions taken and under consideration regarding legal aid.
Registers of Scotland
For information about RoS's response to the COVID-19 outbreak please see their website. Should you wish to contact Registers with a COVID-19 related query, you can email them at firstname.lastname@example.org.
As above, please note we have issued guidance to enable interim RoS measures for transactions affected by the closure of the Applications Record.
Scottish Children’s Reporter Administration and
Children’s Hearing Scotland
Like every public service, the children’s hearings system is significantly affected by the coronavirus pandemic.
All SCRA and CHS offices are closed to the public. Almost all our staff and volunteers including Panel Members are undertaking their roles from home to maintain a service and to ensure that existing legal orders do not lapse. Children’s Hearings Scotland and the Scottish Children’s Reporter Administration have published a summary of their plans on Friday 27 March.
On 28 April, Children’s Hearings Scotland published comprehensive practice guidance for Panel Members on the conduct of virtual hearings which will include professionals, such as legal representatives, and young people and family members. The guidance includes description of the technology being used for these hearings and how best to manage communication so that everyone can take part.
Parole Board for Scotland
The Parole Board for Scotland is continuing to hold casework meetings, Tribunals and Oral Hearings. These will be conducted remotely by teleconference and/or Skype.
Most staff are now working from home. If you need to contact the Board you can email email@example.com. If you are unable to email please call on 0131 244 8373 and leave a message and a number.
Scottish Solicitors Discipline Tribunal
Currently all SSDT hearings in March, April and May are cancelled. Some procedural hearings and compensation hearings will be dealt with by the Chairs by telephone and/or on the papers, however, most cases will be sisted and rescheduled in due course. See the SSDT website.
The Scottish Legal Complaints Commission
The SLCC has issued advice for practitioners and firms on service standards and complaints. It has also issued an update stating that while it aims to avoid a significant overall effect on complaint resolution times, deadlines for complainers and lawyers may need to be extended.
Lord Advocate's guidance on liberation was issued on 20 March intended to reduce the number of people held in custody and provide clarification around other court, Crown and police activity during the outbreak.
Scottish Prison Service
Solicitors have been encouraged to sign up to remote access facilities with the Scottish Prison Service.
HMP Cornton Vale
To arrange client consultations with women in the care of HMP Cornton Vale a new telephone appointment system has been set up. Simply call the usual telephone number to book a slot, you will then be provided with a direct dial number to call at the time of your appointment and your client will be on the other end of the line.
Revenue Scotland has changed how it delivers its services in order to protect the health and wellbeing of its staff and to provide on-going support for its service users. The Scottish Electronic Tax System (SETS) continues to operate as normal, but Revenue Scotland has issued information on some of the changes that agents and taxpayers should be aware of.
The Scottish Government has expanded the testing programme in Scotland and we are keen to ensure that our members understand what is available, where and how to find out if they are eligible. You can find further information on our website here.
We have announced a £2.2m package of financial support for members by reducing fees to help you through the impact of the COVID-19 outbreak.
We have also written to all members to let them know that we have extended the deadline for paying the SLCC levy until the end of October. Members who wish to pay in June can still do so as we understand for some it is easier to pay it now, but the Law Society will temporarily cover the initial payment required by the SLCC to allow members the option to defer payment until the end of the practice year.
We know this will be a very challenging time for many.
There are a number of resources highlighted in Lawscot Wellbeing, our dedicated online resource that provides help and guidance for members and employers, which may be helpful for you, your colleagues and families. We work in collaboration with NHS Scotland, LawCare, SeeMe, SAMH and other mental health charities to:
- Equip our members with information and signposting to help manage emotional wellbeing
- Support our members and others employed in the Scottish legal sector who may be experiencing difficulties to access support services and advice
- Support colleagues and people managers help those in difficulty or crisis
- Guide members who are concerned about their client’s emotional wellbeing
- Challenge the stigma around emotional wellbeing and champion best practice
Read more about looking after your wellbeing during the Coronavirus outbreak in the dedicated section on our website, including our homeworking hacks, and join the conversation via our social media channels.
NHS posters on correct handwashing procedures are available to download and print.
You can find out more about self isolating and obtaining a self-isolation note on the NHS website.
We know that some members are now placed on furlough or have alternative working arrangements which means they might not have access to the email registered with us.
If you or a colleague is in this position just follow these simple steps so that we can continue to keep in touch and let you know news from your profession during this time:
- If you want to have emails sent to a personal, home email address login to your member portal online and ensure the correct home/personal email address is recorded.
- Email firstname.lastname@example.org from that personal address to ask for future emails to be sent to this alternative email address. It's important to make sure it's correctly added to your membership details by logging in ahead of time, this is how we know this is a genuine request.
- When you have access to your work email again and want to change things back, simply email email@example.com and we'll swap your main contact address back for you.
Please note that changing your email address will not change your current email preferences, so you'll continue to only hear from us on regulatory matters and the topics you've indicated you want to hear about. You can of course update these too via the member's portal.
We have received a number of queries about the remote supervision of trainee solicitors and the ability of trainees to get the continued training, experience, and exposure while remote working is required.
Each legal business is different so there is no one size fits all approach. We note that many organisations will be reacting to events quickly and that communication about what is working/what isn’t working is vital. We would recommend that training managers and supervising solicitors use their professional judgement to decide what works for them, but this might include:
- daily calls
- regular email check-in throughout the day
- review of work by more than one person if possible (with feedback attached)
- making yourselves approachable virtually and by phone as a supervisor to be asked questions
PQPRs can be done either over the phone or via video-conferencing. These can then be uploaded as normal to the Society’s portal.
The requirement to work from home for an extended period should not impact the ability of a trainee to reach the standard of the Qualifying Solicitor and qualify in due course.
We strongly advise all legal employers to follow UK and Scottish Government guidance and support home working wherever possible.
At its April meeting the Education & Training (Standard Setting) Sub-Committee agreed to extend the licences of all TCPD providers and all organisations authorised to use their own review procedures rather than use the Society’s PQPR system due to renew between April and August 2020 until September 2020.
Can training units utilise the UK Government’s Coronavirus Job Retention Scheme, also known as furloughing, for trainees?
We have had a number of queries relating to the potential temporary suspension of training contracts. In the normal course of events the answer is no. Traineeships ought to be continuous over a period of two years (or equivalent if part-time).
However, we believe that the UK Government’s recent announcement regarding the Coronavirus Job Retention scheme may make this possible, assuming that trainee solicitors meet the criteria for reimbursement set out by UK Government. Both sets of Admission as a Solicitor (Scotland) Regulations (2011 and 2019) allow for trainees to be absent for a period of no greater than six months in the aggregate. Whilst this has in the past been used for maternity leave or long-term sick leave we believe that furlough – supported by the CJRS – could be viewed in the same way. We would encourage training units considering utilising these provisions to monitor the UK Government’s website as it is likely there will be updated guidance about how this scheme can be accessed, for what types of employee and what changes need to be made to employee contracts.
We leave it to the professional judgement of training managers to decide whether or not – at the end of the training contract – the trainee has met the PEAT 2 Outcomes and is a fit and proper person and whether or not the traineeship can be discharged after the usual 24 months or needs the training contract to be extended.
What about trainee remuneration?
For a number of years, the Society has rejected any training contract that purports to pay less than the Living Wage, as set by the Living Wage Foundation outside of London. Whilst some trainees may be paid more than this minimum rate, all trainees should be paid at least that rate. There has been no change to this policy and applies to furloughed trainees.
What do I need to do if I am placed on furlough?
Please let us know the date that you were placed on furlough. We will update your record to opt you out of the PEAT2 Quarterly Performance Review (PQPR) reminders. You will not be required to undertake a PQPR whilst you are on furlough. Please email: firstname.lastname@example.org to let us know.
When you return to work after furlough please get in contact with us and we will amend your record once again. We will be able to advise you at that point whether or not you require to undertake the PQPR that you have missed whilst on furlough.
For trainees who reach the end of their training contract whilst on furlough: If your supervising solicitor/training manager is satisfied that you are fit and proper and have met the PEAT 2 Outcomes they will need to contact us to discharge the training contract at that point. If they are not your training contract may need to be extended.
In either case, we will be able to talk them through the options and we would encourage them to get in touch with us in advance of the end of the training contract.
If you have any queries please email us at email@example.com
If I am placed on furlough, will my traineeship be extended?
It is possible for a trainee to be absent for up to six months of the training contract and, at the end of your training contract, it is down to the professional judgement of your supervising solicitor/training manager to decide if your absence from the training contract can be disregarded or needs to be added to the end of the training contract. This will come down to a judgement on whether or not you have met the PEAT 2 Outcomes and therefore the standard of a qualified solicitor.
Can trainees work for other organisations whilst on furlough?
A number of trainees have come forward to ask us if it is possible to work for another organisation whilst furloughed. The Corona Virus Job Retention Scheme does allow for this, according to the updated guidance on the UK government website. Furloughed individuals are not allowed to work for their employer whilst on furlough, but can do other work.
We are aware of some trainees who – in particular – wish to return to old roles for a short-time in industries that need additional assistance during this time e.g. roles in the National Health Service, care homes, working in supermarkets and other such shops, farming etc.
The Admissions Sub-Committee has considered this matter and has agreed that it is possible for a trainee to take on another role whilst furloughed, so long as the following criteria are met:
- The trainee has the consent of the training unit.
- That the role is compliant with the Corona Virus Job Retention Scheme guidance (and any updated guidance). The guidance is available here - see section ‘Working for a different employer’.
- That any such role is ceased before the end of the period of their furlough (that is they do not have two roles when training resumes).
Alongside the information provided on this page, we have received a lot of questions from trainees on furlough on a variety of issues and have answered the most common questions in a dedicated FAQ section, which can be found here.
The FAQ section will continue to be updated with additional questions as we receive them. A contact form is available on the page for furloughed trainees to submit questions that they would like added to the FAQs.
Can I reduce my trainee’s hours?
Yes. This is competent under the training contract assuming that the contract remains compliant with the Society’s policies on trainee remuneration (i.e. trainees are required to be paid at or above the living wage outside of London as set by the Living Wage Foundation. The same is true of any furloughed trainees).
If trainees are placed on a 4-day week/80% hours whilst the Coronovirus Job Retention Scheme is in place, and providing that the combined number of days does not total more than six months in total, organisations can disregard these absences from the training contract providing that the training firm is satisfied that trainee has met the PEAT 2 Outcomes and has reached the standard required at the end of the training contract.
If the organisation thinks that there has been an impact on the trainee’s meeting of the Outcomes, and the trainee needs more time to meet them, then they can apply to us to extend the training contract. If training managers have any questions, they should contact firstname.lastname@example.org. Again, the Admissions Sub-Committee will keep a watching brief in this area.
Can a trainee be made redundant?
We have a policy on the termination of training contracts for the reason of redundancy based on QC opinion. The policy statement is clear that training contracts cannot be terminated by employers for the reason of redundancy and other avenues should be considered prior to redundancy. The only organisation who can terminate a training contract is the Law Society of Scotland.
We understand that the current situation may lead to less work for trainee solicitors to undertake. Organisations may wish to consider utilising funding via the Coronavirus Job Retention Scheme (see above).
Training units are encouraged to read the policy statement and consider all other options prior to redundancy. If having done so, they wish to make a trainee solicitor redundant, they are required to make a submission to the Admissions Sub-Committee of the Law Society of Scotland.
The Admissions Sub-Committee has considered TCPD requirements for those qualifying before the end of September 2020. The Sub-Committee agreed that a general reduction in the amount of TCPD undertaken by those qualifying before 30 September was a prudent and proportionate regulatory decision.
All those who are due to qualify prior to 30 September are now required to complete 48 hours of TCPD, of which a minimum of 32 must be from an authorised provider and a maximum of 16 from a non-authorised provider. The Ethics course must be completed in full.
Trainees who are qualifying before 30 September and who have already undertaken more than 48 hours of TCPD are deemed to have met the TCPD requirements.
Any trainees who are due to qualify before 30 September and who have not met the reduced requirements and, but for the shortfall in TCPD, would be in a position to discharge their traineeship, should – at the point of discharging their training contract – give the Society an undertaking, in a form to be prescribed, that they would complete the remaining hours of TCPD up to a total of 48 hours with the appropriate minimum of 32 hours from an authorised provider as soon as they can .
The Committee is keeping a watching brief in this area and will revisit this matter to give clarity to trainees qualifying post-30 September should these exceptional circumstances continue.
The Admissions Sub-Committee has noted that the Mandatory Ethics Course can now be taken between month 9 and month 24 of the training contract (rather than the usual, between months 9 and 15).
We have had confirmation from the Lord President’s Office that the Lord President has no objections whilst the normal court process is interrupted due to the pandemic, for sitting in on video (or indeed) telephone hearings to count for sitting in purposes provides it meets all other existing criteria in the Regulations for such hearings to be counted.
More information on access to courts can be found on the Scottish Courts & Tribunal Service website.
In the meantime we would urge members to heed public health advice and the Society’s guidance above when considering sending trainees to court to sit in and consider the latest advice regarding attendance at court at this time (see above) particularly exercising your judgement on the number of practitioners needing to attend and keep that to essential only.
We are aware that LLB and Diploma students may have questions and concerns about the potential effect on the traineeship job market as a result of the Coronavirus outbreak.
We are currently liaising with firms and will continue to do so to get an understanding of trainee recruitment in light of Covid-19. At this stage, it is too early to make any detailed analysis. We will continue to update you as and when we have more information, but please be assured that we are doing our utmost to monitor relevant guidance and information. If you are in the fortunate position of already having a traineeship offer in place, we would recommend that you contact your firm or organisation directly if you have any concerns.
If you are a final year student, you will likely be considering, or in the process of applying to the Diploma. This is an important decision for all students as it is the indicator of whether you intend to qualify as a solicitor in Scotland or take a different career path. The Diploma, unlike the LLB, has a validity period of five years from the date it is awarded and you should bear this in mind when applying. This validity period, which was increased on 1 November 2019, should allow students a degree of flexibility in securing a traineeship within the set timeframe. For more information on the Diploma and its validity, please visit our website. You can also find our updated Diploma Guidance note.
Please keep a look out for updates throughout the application process on our website and on social media. If you are a Law Society Student Associate, you will also be kept updated in our regular news bulletin.
If you have any questions or concerns regarding the Diploma, please contact your university and chosen diploma provider or get in touch with Darren Kerr at the Society. You can also sign up to be a Student Associate on our website.
We appreciate that you will have concerns about the impact of Covid-19 on your your university study and assessment.
Your university will remain your key source of information and direction in terms of your study and assessment arrangements however we are in correspondence with each of your programme providers regarding continued study and assessment during this period.
All LLB students who wish to progress to the next stages of professional legal education following the LLB require to demonstrate that they have achieved all of the Foundation Programme Outcomes. Whilst many providers of the accredited LLB do use examinations to assess whether individuals have met the outcomes, there is no requirement from the Society to use examinations, online or otherwise, as other forms of assessment are available. We do note that many LLB providers choose to examine students in 1st and 2nd year although this is not mandated by the Society. We also cannot mandate that a provider assesses achievements of outcomes in a different format or at a different time.
Over the last few weeks we have contacted accredited providers of both the LLB and the DPLP to discuss how they will react to the Covid-19 pandemic. LLB providers have advised that they intend to use online assessments which we believe could be a sensible and proportionate solution. We also note that some students have raised issues regarding proposed online exams during this period. We have contacted the universities to assure them they have the option to propose assessment of the outcomes in different ways not already advised or at a different time to that indicated during their accreditation processes and proposed programme. Any such changes will be dealt with in a proportionate and pragmatic manner.
If you have a particular issue with the assessment currently proposed by your LLB provider please contact them to discuss this. We understand that providers are considering the general and individual issues that may arise from assessment during the pandemic and are working hard to mitigate them.