We know the Covid-19 pandemic continues to place enormous pressure on the legal profession.
We will continue to keep our members informed via direct emails, including our fortnightly 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.
Please scroll through the drop down list below to find the latest updates for solicitors, trainees and students.
The most recent key additions and changes are highlighted below.
Wednesday, 13 January 2021
A reminder that CPD requirements have been restored for the practising year 2020/2021. Find out more under Practice updates: CPD requirements
Monday, 11 January 2021
The Lord President has announced that from Tuesday 12 January all but the most serious criminal trials will be adjourned. Read more in Practice updates: Court: civil and criminal (including Legal Aid) below.
Law Society President Amanda Millar has called for the planned Covid Resilience Fund for legal aid solicitors to be expanded and introduced more quickly, and warned that even with reduced business more needs to be done to ensure the whole court estate is covid safe for users. Read more in Amanda's full statement on our news page.
Friday, 8 January 2021
The Quality Assurance Scheme has restarted. New reviews will be set up, however will only be undertaken in electronic form until current government restrictions ease. Read more below under Practice updates: Civil Legal Aid Quality Assurance Scheme
Monday, 4 January 2021
Following the Scottish Government announcement on additional Covid-19 restrictions on Monday 4 December, SCTS has confirmed that Courts and Tribunals will continue to operate business as currently scheduled. Read more under Practice updates: Court: civil and criminal (including Legal Aid)
Following suspension of CPD requirements for 2019/2020 as a result of the Covid-19 pandemic, please be aware that our CPD requirements for members have been restored and are in place for the practising year 2020/2021.
CPD requirements for Accredited Paralegals will resume on 1 February 2021.
You can find specific updates on criminal courts, civil courts and Legal Aid under the headings below.
Anyone attending court must be aware that STCS has instructed that YOU MUST NOT ENTER ANY COURT BUILDING IF YOU HAVE ANY COVID-19 SYMPTOMS OR HAVE BEEN ASKED TO SELF-ISOLATE, in line with Scottish Government guidance.
Solicitors who remain willing and able to attend court are advised to ensure that they are aware of the terms of the protocol for court users (updated 11 January 2021) that has been agreed between SCTS and COPFS.
Solicitors' health and safety should be their primary concern and there is no requirement under the Law Society of Scotland’s Practice Rules to attend court if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so. A solicitor will not be found to have breached our rules provided they have ensured that:
- Their clients are informed without undue delay
- The court is advised without undue delay.
- Reasonable efforts should be made to advise all other parties anticipating your attendance at court without undue delay, for example COPFS, opposing parties and witnesses.
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 and be aware of the latest SCTS advice for subsequent updates. If any solicitors have concerns about the Covid-19 security of any SCTS premises you are asked to bring this to our attention by contacting the Professional Practice team at firstname.lastname@example.org.
- Following consideration of further information on the current spread of coronavirus, the Lord President announced that from Tuesday 12 January 2021 criminal courts will focus on the most serious trials and the majority of summary trials will be adjourned.
All criminal appeals, the Bail Appeal Court, Office of the Public Guardian and Tribunals will continue to operate virtually and remotely, as they have been doing throughout the pandemic.
The vast majority of all civil business in the Court of Session and Sheriff Court will continue to be conducted remotely. This includes the All Scotland Personal Injury Court (ASSPIC) and the Sheriff Appeal Court (SAC).
- Please continue to follow current government guidance to minimise risk of transmission.
- The Scottish Courts and Tribunals Service has issued a Covid-19 update following the First Minister’s announcement. Courts and tribunals are defined as essential services that remain open under all four levels of the current Covid-19 arrangements. We have been informed by SCTS that business programmed for this week and the coming weeks will, therefore, continue as normal. If you are due to attend a court or tribunal in the coming period, you should continue to do so – unless specifically advised otherwise. SCTS has said it will continue to maximise remote hearings where possible, alongside conducting essential business in court premises. When attending court in person, please ensure you continue to take precautions against transmission by maintaining two-metre social distancing, frequent handwashing, wearing a face covering and registering with Safe2Go when you are on site. You can read more on safety in court and tribunal buildings on the SCTS website.
- 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.
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
The Quality Assurance Scheme has restarted (November 2020) following its suspension in April 2020. New reviews will be set up, however reviews will only be undertaken in electronic form until current government restrictions ease.
No extended or final reviews at solicitors’ offices will be arranged at this point. We hope to carry out the review process as timeously as possible, although things may take slightly longer than usual in some circumstances.
New guidance for Christmas and New Year
The Scottish Government updated its guidance for prioritising essential childcare and in person schooling for key workers for 26 December to 18 January
Category two now includes health and care (who are not category one), and wider public sector workers providing emergency/critical welfare services (for example: fire, police, prisons, social workers, courts), 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 three has a wider definition around 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).
While the Scottish Government has provided guidance, decisions on who is provided with essential childcare is entirely one for local Councils and childcare providers and will depend on local capacity and demand. This means different arrangements in each of Scotland's 32 different local authorities. You should check with your own local Council about the situation in your local area. All local authority contact details can be found on COSLA's website.
Essential business' and 'key worker' are two separate categories – essential business is not necessarily carried out by a key worker in all cases.
Update as at 21 December 2020
Following the Scottish Government announcement on 19 December 2020, the position in respect of those areas under tier 4 restrictions remain the same as the restrictions in place since 20 November 2020:
The housing market remains open and home moves are permitted, provided that they can be carried out safely. Travel within Scotland and between Scotland and the rest of the UK in connection with moving home continues to be permitted.
It may be advisable to postpone viewings of properties, or delay a home move, where this is possible.
Businesses supporting the housing market and home moves can remain open but working from home should be the default. Read more on creating and maintaining safer workplaces.
Please follow Scottish Government guidance on moving home.
Update as at 19 August 2020
This section contains information on the following:
• Scottish Government Guidance
• LBTT nil rate threshold increase
• Law Society guidance for settlement of conveyancing transactions during Covid-19 restrictions
• Other property matters
Scottish Government Guidance
The Scottish Government issued guidance with effect from 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.
LBTT nil rate threshold increase
From 15 July, the LBTT nil rate threshold has increased from £145,000 to £250.000 and will take effect up to 31 March 2021. Find our more on Revenue Scotland’s website
Law Society guidance for settlement of conveyancing transactions during Covid-19 restrictions
Public health continues to remain 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.
Following the closure of the application record and Registers of Scotland’s office on 24 March 2020, two main initiatives were implemented and remain in place to allow transactions to settle. These initiatives are: (i) the initial Interim Measures for Advance Notices and then (ii) the enabling of Electronic Submission of Applications (at the outset only for applications in the Land Register, but now being extended to applications affecting the Register of Sasines).
We will provide further updates in due course, with the next key milestones being:
(i) the removal of capacity restrictions on electronic applications affecting the Register of Sasines; and
(ii) the formal re-opening of the application record.
Updates on timing 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, and timing for the re-opening of the application record.
Members seeking to register deeds in the Register of Sasines and/or the Land Register 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.
The guidance below must be read in conjunction with the Scottish Government Coronavirus (Covid-19): guidance on moving home.
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) Registration Treatment following settlement; (New)
(iv) Opening of the Application Record; (New)
(v) Arrangements for settling (New).
(vi) Registration of Deeds in the Books of Council and Session (New)
(vii) Lenders agreeable to the Interim Measures
(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 every Advance Notice is 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.
Advance Notices over whole registered in the Land Register can be submitted electronically in the normal way.
As part of their response to Covid-19 Registers of Scotland have created a digital portal for submitting Advance Notices which also allows Advance Notices for Transfers of Part and First Registrations to be submitted electronically.
All types of Advance Notices are now able to be lodged through Registers of Scotland’s digital portal.
• 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, at least, completion of registration.
(b) if the plan is too big to be scanned in a single image, the plan can be scanned in sections. We are working with Registers of Scotland to generate further guidance on other acceptable ways of submitting plans which are too big to be scanned;
(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) Registration Treatment following settlement
Previously, Registers of Scotland had operated a rolling programme, based on the age of Advance Notices, to control the flow of the electronic submission of applications. However, this rolling programme has been lifted. There are still some capacity limitations on applications which involve the Register of Sasines.
As at 19 August 2020 the current position for all transactions is:
(a) Advance Notices: these transactions will continue to benefit from the interim measures for Advance Notices, providing an extended period for the Advance Notices;
(b) Land Register applications: there are now no restrictions on the numbers of applications that can be submitted through the Registers of Scotland digital portal for registration in the Land Register.
(c) Sasines (and mixed Land Register and Sasines) applications:
The digital portal for electronic submission of applications for registration in the Register of Sasines was initially restricted to a limited range of applications, principally: Section 75 Agreements and Unilateral Undertakings and dual registrations, and with a daily limit on the number of such applications.
Daily limits remain in place, but the digital portal has been opened up to all application types (other than for assignations and discharges of standard securities being recorded in the Register of Sasines, i.e. where they are not part of a wider transaction triggering first registration), and some other less common deed types). You can find further information on RoS’ website.
Registers of Scotland are still providing for other arrangements, where there are compelling reasons for a transaction to be submitted for registration which could not otherwise be submitted through the digital portal. 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.]
For Sasines (and mixed Land Register and Sasines) applications transactions that require certainty for their registration date, 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.
(iv) Opening of the Application Record (New)
Registers of Scotland confirm that the new procedures to allow Advance Notices and applications for registration to be submitted electronically through their digital portal 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.
(v) 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, and 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 in any way be used to compel settlement of a transaction where someone is shielding from the virus. This is reflected in the Scottish Government guidance.
(vi) Register of Deeds [Books of Council and Session]
As of 1 July 2020, the Register of Deeds has re-opened.
All submissions to the Register of Deeds must be made through RoS dedicated PO Box or DX Exchange courier network, More information on these requirements can be found on RoS website.
Where members have an urgent or complex case they should contact Registers of Scotland’s Customer Services team [call 0800 169 9391 for support.
Cheques are not acceptable for payment of the registration dues, and so members should ensure that their FAS account number is included within the C&S1 Form.
(vii) Lenders agreeable to the Interim Measures
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.
• Other Property Matters
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.
Adding clauses relating to COVID-19 to missives
Our Property Law Committee have been asked for their view as to whether all missives should include 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 and it is therefore for members to take their clients’ instructions on this issue. 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.
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.
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.
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.
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.
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 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
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.
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.
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.
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.
You can find out more about the support available from the Society and our partners during the Coronavirus outbreak, as well as available government funding, on our dedicated business support section on our website. You can also read more about the £2.2m package of financial support for members, announced in April 2020, which saw a reduction in fees to help you through the impact of the Covid-19 outbreak.
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.
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.
If I have to take time of for reasons such as sickness or bereavement, in addition to furlough, will my traineeship be extended?
In addition to six months off work due to furlough, trainees may also be able to miss a further one month from their traineeship due to exceptional personal circumstances such as illness or bereavement.
This would bring the maximum period of time missed during a traineeship to seven months without a traineeship having to be extended.
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 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.