LLG president warns of “worrying trend” in councils not funding practising certificates

Councils that decide not to pay for lawyers' practising certificates to save money are taking a “big risk” and could end up facing governance and recruitment issues, the president of Lawyers in Local Government, Rachel McKoy, has told Local Government Lawyer.

McKoy's comments followed the publication of a policy position statement from the LLG, which outlined the membership body's concerns over practitioners not carrying practising certificates.

LLG said that all legally qualified practitioners – whether they are solicitors, barristers, or legal executives – should have a practising certificate (or equivalent), which their employing local authority should fund.

All solicitors who undertake reserved activities must have a practising certificate under the Legal Services Act 2007.

Reserved activities include prescribed tasks in the areas of civil litigation, some legal work in children's services, adult social care, licencing litigation, property litigation, supervising conveyancing transactions, Land Registry-related tasks, housing litigation and judicial reviews.

Solicitors must also have a practising certificate to supervise trainee solicitors or to be the named person for the purpose of issuing claims on behalf of the council, the statement said.

Unreserved activities, such as contract, procurement, planning advice, regeneration, and transactional conveyancing work, do not require a practising certificate under the 2007 Act.

"That said, [a certificate] is desirable, not least because particularly in smaller teams, individuals without PCs may stray into reserved activities because there is no-one else to do the work," the statement said.

It continued: "In any authority, it may not be spotted in the middle of a busy period and a lawyer may inadvertently stray into reserved activities which is a risk to them personally as well as the authority."

Speaking to Local Government Lawyer on the issue, which she described as a “worrying trend”, McKoy warned that councils risk litigation if a professional without a practising certificate works on reserved activities.

She said: "You can see in the scenarios that we've outlined where that could easily happen. Big legal departments, lots of churn, lots of locums – just the turnover, the pace, and the way that we all work hybrid, you could see how this could happen, and I think it's a big risk for the sector."

Not holding a certificate also carries a risk for the legal professional if they are the subject of a complaint, McKoy said.

"If we end up in hot water in some claim against us, who pays the legal fees on that? So that's where the practising certificate comes in because there's an indemnity element to it."

She also warned that depriving the public of the ability to complain about a solicitor to the SRA could "curtail" public scrutiny.

"If someone doesn't have a practising certificate and you want to complain about their work, you couldn’t take them to the SRA, because they're not governed by the SRA," she noted.

"You just have to make a complaint in-house to the council, which doesn't have the same gravitas. They can't strike you off, and 'joe public' can't be protected from you in the same way."

McKoy also voiced concern about the effect of not funding certificates on recruitment.

She said: "We as a grouping are professionals and the cost of the certificate should be borne by the employer."

She noted that in some cases, authorities have been reported to allow employees to pay for their certificates via salary sacrifice. "But I don't think that addresses the fundamental principle," she said.
"I think that in a time where we are trying to attract that talent pipeline and just even retain our talent, it's just one more thing [to deter people from working in local government].

"Therefore, we need to ensure to bolster the attractiveness of our employment offer not detract from it."

Adam Carey