The new Work Based Learning regime: key issues, challenges and questions
Does WBL introduce a higher burden on trainees and employers?
Yes, it does.
First, it places a greater emphasis on managing the training contract more proactively.
Second, the Work Based Learning outcomes do 'raise the bar' in certain respects compared to the current SRA Skills Standards, by explicitly requiring trainees to have direct, personal experience of skills they might previously have been able to satisfy by training or observation.
The current SRA Sills Standards say [at p.9 of "Training trainee solicitors: The Solicitors Regulation Authority Requirements"]
"Trainees develop the skills through a mixture of the following activities
- Completing work and tasks themselves
- Assisting others
- Observing experienced practitioners"
[Our emphasis]
Whereas the WBL Outcomes say [at p.13 of "Work Based Learning pilot: Handbook for all participants"]
"Introduction
During the period of Work Based Learning, a successful candidate must acquire, develop and apply [our emphasis] skills and knowledge relating to [the core outcomes]"
The language of the WBL Outcomes then continues to focus on practical experience based on their own "exercise" of the core skills rather than observation or assistance of others.
The most contentious example on this theme was advocacy, where initially the SRA's position was that training or observation would not be sufficient, but it has since softened its position as follows:
"In contentious matters, candidates may learn about the application of legal skills by attending tribunal hearings or ADR meetings, observing proceedings, attending conferences with Counsel and assisting with the preparation of cases.
It is recognised that candidates may not have the opportunity to demonstrate their advocacy skills before the courts. To demonstrate the skills required of an advocate, candidates may become involved in the preparation of cases for hearings/trials and in presentations for clients.
Preparing and delivering in-house training may also be used by candidates. In non-contentious matters, candidates may learn to apply legal skills through preparing correspondence and documents, following proper procedures and attending meetings with clients."
[New para 42 of the SRA's "Work Based Learning Pilot: Handbook for all participants" re-issued September 2009]
Key challenges going forward
Bringing supervisors into line
It is becoming clear within the pilot that supervisors will be crucial in backing up the trainee's claims as to competence and must thus be encouraged or forced to 'buy in' to the WBL process.
Historically, getting supervisors to commit and protect time for trainee review meetings has proved difficult for many firms, such is the priority naturally given to fee-earning work - but WBL introduces a regulatory stick which hasn't been there before and which will be very difficult for the firm and the supervisors to ignore. The good news here, we think, and based on our experience of the pilot so far, is that this could have potentially far-reaching and significant benefits on the overall quality and rigour of a firm's supervision and hands-on training function.
Assessment standards, methodology and clarity on the core 'competence' benchmark
This is a key issue. The concept of 'competence' needs to be as well-understood and consistently applied as possible by everyone involved in Work Based Learning in order to ensure a level playing field and universal confidence in those who are admitted through the various potential WBL routes.
For our commentary on this, see Work Based Learning: Assessment & "Competence".
Other issues...
Firms without litigation work?
Despite the softening of the SRA's position on advocacy, there is the underlying requirement - common to both the current SRA Skills Standards and WBL regime - to gain experience in contentious as well as non-contentious law during the training contract. For some of the larger City firms, this requirement was problematic and dealt with by sending trainees onto accredited litigation training courses.
This is an area the SRA will have to clarify in relation to the WBL regime.
Training or 'simulation' sufficient to plug gaps?
No longer such a pressing issue following the softening of position on advocacy, but there are other outcomes where certain types of firm may find gaps appear, for example direct client contact and advice. In such cases, the emphasis on direct and personal "experience" by the trainee is pretty clear, and it is possible that firms will need to consider increasing links with pro-bono clinics in order to ensure that trainees get the kind of direct experience required by the SRA.
'Currency'
Firms will have to think about the timing of seat rotations - at the time of final assessment the evidence of competence has to be "current", which has been interpreted (by NLS for example) to mean within the last year at most, but probably within the 6 months leading up to qualification.
Will the PSC remain?
The SRA is looking into this and it is unlikely that a firm decision will be made for some time yet - possibly until after the roll-out of a compulsory Work Based Learning regime.
But, in essence, the answer is that fundamental change to the PSC is highly likely long term, including a change in name (for example a working title within the SRA is a new "Professional Responsibilities Test", or "PRT", to replace the current PSC).
Such a change would be informed by the fact that the WBL Outcomes embrace most of the PSC objectives - leaving the possibility either of amending the WBL Outcomes to plug any notable gaps, or leaving a much smaller 'rump' of PSC modules to cover some very specific coverage (for example the PSC Financial & Business Skills component).
As such, the SRA is feeling its way towards a largely "measurement" based approach to the core professional skills expected at trainee level i.e. you test that they've acquired the skills rather than prescribe the manner in which they acquire them. This is consistent with and would be assessed within the proposed WBL system, leaving a much smaller and more specific "instructional" element which would then tie in with and be checked by a new PRT.
To speak to Paulo Karat on any Work Based Learning query or to subscribe to our WBL email update service and keep fully up to speed with developments, please Contact Us.