A new framework for work-based learning: UKCLE response

In August 2006 the Law Society of England and Wales launched the next phase of consultations on its training regime in its consultation on a new framework for work-based learning – the UKCLE response is given below.

Under the proposals the training contract could be reduced from two years to a minimum of 16 months, with trainees assessed on a range of criteria at regular intervals. Trainees will be expected to build a portfolio demonstrating achievement across 12 core skills. Accredited firms would have in-house portfolio supervisors and assessors, while other trainees would produce their portfolio and training in collaboration with an external supervisor, evaluated by an external assessor.

A pilot of new work-based learning arrangements began in 2008 and will run for two years – see the Solicitors Regulation Authority website for details.

---

UKCLE broadly welcomes the proposed new framework for the period of work-based learning for training solicitors. It is sensible and appropriate that credit should be given to those who are gaining good, relevant, experience outside a formal training contract. However, we do have a number of concerns and suggestions about how the proposals may be taken forward. These are set out below, and our responses to the specific questions raised by the consultation are identified by italics.

A general observation

The ‘case for modernisation’ section of the consultation document talks of the current diversity both of those wishing to enter the profession and of the ways in which they learn. The flexibility proposed by the different routes for work-based learning recognises and seeks to build on this, but there are risks in moving to a more flexible and varied regime. It is vital in this context that the pathways set consistent standards in terms of both process and outcomes; if they do not, there is a danger that the perceived ‘alternative’ route may become devalued, with negative consequences for access. It is also critical to ensure that the rigorous monitoring processes outlined are maintained to prevent the portfolio development and its assessment from becoming a box-ticking exercise.

Further, as has been highlighted in previous commentaries on the Training Framework Review (TFR), the education and training of a solicitor, particularly on the Legal Practice Course (LPC) and in the period of work-based learning, is a single process. It is not clear from either the current consultation or the LPC Framework document (May 2006) whether or how a student’s progress through the relevant day one outcomes while on the LPC is to be carried forward to inform the period of work-based learning. This seems particularly important given the increased emphasis in the outcomes on the professional and ethical aspects of training. There was some initial discussion of this issue in the early stages of the TFR, but it appears not to have been expressly revisited since. To encourage a sense of continuum, and enhance a student/trainee’s professional development, we would suggest as a minimum that a trainee is given the opportunity (if not required) to obtain a short report from their LPC provider on their progress.

Responses to questions

1 To what extent, if any, should the Law Society Regulation Board (LSRB) prescribe the form and content of training agreements between organisations and trainees provided the LSRB validates and monitors organisations to ensure that an appropriate level of training and support is provided to trainees and a robust assessment mechanism is employed?

This should not be necessary, provided the validation, monitoring, and assessment mechanisms are rigorous. While current employment legislation should adequately cover the trainee/firm relationship, it may be appropriate for the LSRB to offer some guidance to trainees on their obligations as trainees, and on the expected/minimum training obligations of their employers, particularly as regards portfolio supervision and assessment.

2 Should individuals with relevant work experience who can demonstrate their competence against the relevant day one outcomes through a portfolio and regular reviews with approved assessors be able to qualify as a solicitor even if they have not been employed in an accredited training organisation or undertaken their work experience under a formal training agreement?

Yes, subject to comments on the assessment process below. There must be consistency of criteria and standards between the two pathways.

3 How might the day one outcomes be converted into assessable levels of competence appropriate to newly qualified solicitors?

The obvious solution is to draw up detailed criteria for each outcome. The question of setting criteria at appropriate levels is an issue of instructional design which must surely be addressed more fully by technical consultants rather than in a consultation paper such as this. It is suggested that such criteria and levels could potentially be mapped onto outcomes at NVQ level 4 or 5 in order to give the portfolio wider currency.

4 Do you think that there is a risk that solicitors who have qualified via the non-traditional route will be perceived as less competent than those who qualify via the traditional route? If so, how can this risk be mitigated?

Yes, we believe there is a real risk of this, and we would encourage the Law Society/LSRB closely to monitor the system in operation to identify whether such differential perceptions arise.

The risk may be mitigated in a number of ways:

• ensuring transparency of the different routes, and ensuring that clear guidance on the trainee assessment process is available at an early stage for those considering entering the profession
• when ‘marketing’ the possible new routes, the LSRB, or Law Society, as appropriate, must ensure that it does not suggest that they are of anything but equal standing. Whilst ‘kitemarking’ accredited firms by using a term such as ‘badge of excellence’ (see page 5 of the consultation document) might be a way of encouraging firms to become accredited, it also increases the risk that training through a non-accredited organisation will be seen as a second class route
• it may be that some of these risks will be mitigated by involving external assessors in the monitoring of ATOs, thereby making it apparent that common standards are being applied

5 Do you agree that the standard for accredited training organisations should be set at the level of current best practice? If so, how should this be determined and set as the standard?

‘‘Best practice’ is an essentially qualitative concept. It often implies something cutting edge and therefore beyond not just competence but also generally accepted commendable or good practice. It tends therefore to be more difficult to quantify and to achieve a consensus around best practice than other (lower) standards. Regulatory practice often distinguishes between (minimum) standards and (aspirational) best practice guidelines. In this context, to set best practice as a minimum standard may be setting the bar too high.

6 If the standard for accredited training organisations is to be set at best practice level, do you agree that the LSRB should introduce a more robust validation and monitoring regime for organisations seeking accreditation than is currently in place?

We are not sufficiently familiar with current processes to comment in detail. As already noted, we would be concerned that if the standard is set too high it will increase the risk of a two tier system developing, with possibly undesirable and unintended consequences for access and diversity.

7 The costs of the validation and monitoring process are likely to be higher than the current cost for authorisation as a training establishment although the internal costs for organisations already following best practice should be minimal. Do you think that organisations would be deterred from seeking accreditation because of:

1. An increased validation and monitoring fee? and/or
2. A more robust validation and monitoring regime?

We are aware of no formal data to support this contention, but it seems intuitively plausible. In particular, smaller firms which currently take trainees only as and when the need arises may be deterred from seeking accreditation.

8 Do you think the proposed approach to accreditation of training organisations risks deterring firms from taking trainees altogether? If so, how should this risk be mitigated?

See answer to Q7. Might a sliding scale validation and monitoring fee, reflecting the number of trainees taken, be a way of mitigating some of these effects for smaller firms? It may well be that the ‘external assessment’ pathway will be preferable to some firms in any event.

Registration

Views are sought on the proposal to require all individuals to register with the LSRB before they begin to complete their portfolio of evidence and the suggestion that the completion of the portfolio can begin at any point in an individual’s career provided they are working at an appropriate level to meet the day one outcomes.

9. What, if any, guidance should be provided on what constitutes work at an appropriate level to meet the day one outcomes for a newly qualified solicitor?

See the response to question 5, above as regards the issue of level. As it is proposed that an individual’s work based learning can take place at any point during that individual’s career, this also raises important questions about the currency of that experience and the stage at which they need to begin the gathering of evidence for a portfolio (see response to Qu 10 below). It is vital that clear information and guidance on the process and how the day one outcomes can be met is given at an early stage to all those considering entering the profession. As it is suggested that this learning may take place before formal academic study, school careers services must be kept informed, as well as all firms employing, for example, paralegals and legal clerks.

We welcome the proposal that the participation in clinical legal education may also count, and suggest that the LSRB consider whether law clinics might, in appropriate cases, become ATOs.

10. (a) Do you agree that, as well as an assessment tool, the portfolio should act as a development tool and that individuals should be encouraged to record and reflect on their work based learning at the point at which it happens or as soon as possible afterwards?

Yes; to treat a portfolio as purely an assessment tool is to misunderstand the basis of portfolio-based learning. Ideally, individuals should also be gaining experience of using portfolio tools on the LPC.

(b) For a period when the scheme is first introduced, should individuals who already have many years relevant experience, eg as a paralegal, be able to complete a portfolio retrospectively and submit it for assessment even though they will not meet the requirement for regular, documented review sessions?

We see no objection to this in principle, though it may be appropriate to require the completion of a reduced period of WBL as well, to confirm currency of skills and knowledge. However, this process raises important issues relevant to the assessment of any non-contemporaneous experience and learning (cp. Qu’s. 9 and 25). What we might call a WBL training portfolio should be designed as a tool for the contemporaneous or nearly contemporaneous recording of learning. If it is capable of compilation long after the event by one group it will be capable of post hoc compilation by others, which would seem to risk undermining at least some of the intentions of this reform to enhance the quality of learning in training.

The issue here turns largely on what the consultation intends when it uses the term ‘portfolio’. We suggest the scheme cannot simply adopt a ‘one size fits all’ approach. Portfolios are commonly used for the accreditation of prior experiential learning (APEL) – which is really what this question addresses. An APEL portfolio normally requires evidence and a commentary supporting the claim, often against required outcomes. However this is likely to be a qualitatively different document from the kind of portfolio claim that will be made by someone currently in training, not least because the experience is not contemporaneous with the claim and not capable of review and certification by a portfolio supervisor. In short, it can be done, but it requires different tools.

11. Do you agree with the proposition that qualifying work based learning could take place at any point in an individual’s career i.e. prior to formal academic study, during the LPC, during the formal period of work based learning provided that it is at an appropriate level, and that the individual could begin completion of the portfolio at whatever point they are undertaking relevant work experience?

Please see comments to Qu’s. 9 and 10.

12. Should the LSRB set the minimum number of review sessions (eg four) and the minimum period of time between each review session (eg four months) or simply allow individuals to present themselves for assessment when they have completed their portfolio and feel they can demonstrate their competence against the relevant day one outcomes? If the former, how many sessions and how long a period between them should be the minimum?

If the minimum number of reviews is not a requirement, then obviously they may well not take place, and could undermine both the use of the portfolio as a developmental tool, and the validity of the assessment. Trainees need to be given sufficient opportunities – and time – to observe and reflect on their own development. Four reviews would seem to be an absolute minimum, and at not less than quarterly intervals.

13. How wide a variety of different areas of law should a newly qualified solicitor have experienced? Should experience of both non-contentious and contentious areas continue to be required?

If the solicitor’s qualification is to remain a generalist one, thereby precluding the notion of restricted practising certificates, it is necessary to retain a reasonable breadth of experience. As an absolute minimum this suggests at least two, if not three areas, and preferably in both contentious and non-contentious settings. It is recognised that this could be a problem for ‘non-accredited firms’ employing individuals under less formal training arrangements, and may of course also be an issue for an individual who has been working as a paralegal or clerk.

14. If the LSRB specifies a minimum number of review sessions and elapsed time between sessions, will firms take advantage of the flexibility or simply design their training programmes so that all trainees qualify within the minimum 16 month period?

Unsure; any answer would require pure speculation on our part.

14. Do you think it is important that individuals not employed in an accredited training organisation should be able to access LSRB appointed portfolio supervisors to help them determine whether their work is at a sufficiently high level to demonstrate competence against the day one outcomes and to enable them to regularly review and reflect on their progress?

Yes, portfolio preparation is not a straightforward task; this therefore seems essential both to enable such individuals to prepare a portfolio effectively, and to ensure consistency of approach with the accredited pathway. Moreover, if supervision is not provided, what would prevent individuals from ‘self-certifying’ their progress?

16. If the cost of the external review sessions and the final external assessment for individuals who are not in accredited organisations is to be met by the individuals seeking to qualify, do you think that this would act as a new barrier to qualification?

Possibly. Individuals may have to work hard to persuade non-accredited organisations to support them through the process. It may be worth investigating whether smaller firms would bear the cost on an ad hoc basis if it is significantly cheaper than accreditation.

17. Do you think the new requirements for in-house review and assessment will deter organisations from taking trainees altogether? If so, how should this risk be mitigated, if at all?

Yes. LSRB must ensure clear guidance and offer support at least in the early stages.

18. Should organisations be able to train portfolio supervisors in-house provided the training meets LSRB standards?

Yes, but review of this training should be part of the LSRB’s monitoring process.

19. Do you agree that individuals in accredited organisations responsible for the final assessment of portfolios should be required to be trained in assessment by the LSRB to ensure consistency of approach and externality in the assessment process?

Yes, this seems to be essential to the validity and reliability of the assessment process.

20. (a) Should the roles of portfolio supervisor and assessor be distinct and separate in order to ensure neutrality and objectivity in the assessment process;

Yes.

or

(b) Is there value in the assessor consulting with the portfolio supervisor as part of the assessment process;

(a) and (b) are not necessarily alternative options. Objectivity is not necessarily undermined by contact for specific purposes, for example, to clarify events or problems arising where the fairness of individual assessment decisions might otherwise be compromised. The question of whether assessors should give feedback at all, generically, or to specific supervisors also needs to be considered.

and/or

(c) Could portfolio supervisors also assess individuals they have supervised?

Preferably not. They could provide an opinion as to the individual’s suitability to qualify, but the overall final assessment should be independent of the supervisor.

21. (a) Do you think the cost of training in-house portfolio supervisors and assessors will deter organisations from taking trainees altogether? If so, how should this risk be mitigated?

Yes, this seems likely. The LSRB should consider whether it can provide some training free, at cost or at a subsidised rate. Alternatively these increased costs might be taken into account by the LSRB in setting fees and charges for monitoring, etc. Beyond that we are not sure that it can be significantly mitigated without endangering the integrity of the training process.

(b) Do you think that some firms would continue to take trainees but would submit them for external LSRB review and assessment rather than seek accredited status?

Yes, if the burdens of costs and managing internal processes are less than for accreditation.

22. What might be the implications for small training firms? How should any problems be mitigated?

Please see answers to questions 7, 8, 13 and 16.

23. Do you agree that accredited organisations should be able to conduct their own assessment of trainees or other employees, to LSRB standards, provided the LSRB validates and monitors the training and assessment provided by the organisation?

Yes, subject to comments above on the separation of the roles of supervisor and assessor.

24. Should individuals who have not gained their work experience in an accredited organisation be subject to further assessments of their skills in addition to the assessment of the portfolio? Eg face to face skills assessments, formal interviews or more broadly based (and more expensive) assessment centres.

We agree that the portfolio should be the primary basis of the assessment of an individual. Any additional assessments should be required of any individual regardless of their work based learning pathway. This comes back to requiring complete consistency between standards on the pathways and avoiding the impression that there are two ‘classes’ or tiers.

25. If this general approach is adopted, how do you think it should affect the present arrangements for overseas lawyers seeking admission to the roll in England and Wales who are expected to demonstrate their experience in practice before being admitted as a solicitor in England and Wales?

Again, given the implications of Morgenbesser (as we understand them) an APEL portfolio approach would seem most appropriate here – see Qu. 10 above.

Last Modified: 4 June 2010