Coronavirus (COVID-19) information for members

The government has rightly acknowledged that keeping the justice system running during the current coronavirus (COVID-19) crisis is vital, and that legal practitioners are fundamental to achieving this aim.

The Ministry of Justice has issued a list of key workers who include those ‘essential to the running of the justice system’.

See our guidance on conveyancing:

• Coronavirus (COVID-19) and residential conveyancing transactions
• Coronavirus (COVID-19): Guidance to conveyancers advising clients on house moves
• Coronavirus (COVID-19): Guidance for using the variation agreement

The government has issued advice on moving home during the coronavirus outbreak.

On 13 May, the government announced its plan to reopen the housing market as safely as possible. Read the Ministry of Housing, Communities and Local Government guidance on home moving during the outbreak.

We worked with others across the sector to develop guidance that enables professionals to complete moves while maintaining safety.

We'll be issuing further conveyancing sector-specific guidance within the next week.

We recommend following government advice.

If the client is in a risk category, it’s preferable to find a way to deal with the matter remotely, for example by Skype.

We've produced guidance on obtaining electronic signatures and the Legal Aid Agency has adopted contingency measures for obtaining client signatures remotely or waiving the requirement in some circumstances.

In relation to conveyancing, HM Land Registry (HMLR) is temporarily accepting the ‘Mercury’ signing approach for deeds. The aim is to reduce problems with post, paper and scanning as a result of the coronavirus outbreak.

Our practice note on virtual signings sets out how ‘Mercury’ style signings operate. HMLR has updated Practice guide 8: execution of deeds with further information.

HMLR has also introduced some temporary changes to its requirements to make it easier to verify identity for land transactions. Full details on these changes, including the conditions that must be satisfied, are available in the new Practice Guide 67A.

These are all temporary measures to address the highly unusual current situation.

Read HMLR's announcement

The LAA is regularly updating its guidance for legal aid providers.

We're continuing to push for further guidance and clarification, particularly about contract obligations which need to be relaxed, practical issues caused by working remotely, cash flow and sustainability.

Guidance the LAA has published includes:

• suspending audit activity
• relaxing rules for hardship payments
• relaxing various contract requirements, including the obligation to keep offices open and the attendance requirements for duty solicitors under criminal contracts
• amending rules to enable remote working, including allowing for remote signatures, acknowledgement of difficulties in producing means evidence and adjusting requirements for claims under the Family Advocacy Scheme

The LAA has published a list of existing ways legal firms can seek financial assistance. These include:

• payments on account in civil cases
• interim payments and hardship claims in the Crown Court

To receive regular updates, sign up to our legal aid e-alerts.

The government published guidance on safe return to the office. The principles are:

• each law firm will need to translate the guidance into specific actions, depending on its size, management and structure
• the guidance does not supersede any legal obligations relating to health and safety, employment or equalities. Existing obligations must be complied with, including those related to individuals with protected characteristics
• law firms should make every reasonable effort to enable working from home as a first option. No one is obliged to work in an unsafe work environment
• distancing. If staff have to be in the office, they should stay two metres away from each other, if at all possible

Read our practical framework for return to the office

The government has announced a temporary tax exemption for employer reimbursed expenses to cover the cost of home office equipment (such as a laptop, a desk or necessary computer accessories) deemed necessary for an employee to work at home due to COVID-19.

There are some conditions, including that the exemption will only apply if the reimbursement is made available to all of an employer’s employees generally on similar terms.

The measure is helpful because the existing exemption for home office equipment only applies where the employer directly provides it, not where the employee buys the equipment and the employer reimburses.

It will have effect from 11 June 2020 to 5 April 2021, but HMRC will exercise its collection and management discretion effectively to backdate this to 16 March 2020.

The SRA has provided guidance on maintaining confidentiality during remote working.

We understand that some firms, particularly small ones, may not have remote working capability. If you have not already done so, you could develop a business continuity plan (BCP) made up of the following steps:

Critical staff

Identify those staff members who are critical to the running of the business and especially those who are authorised to implement and manage the BCP.

Do a skills audit to consider the skills of all staff and the levels of work that they can undertake when necessary. This should not just consider lawyers but all support staff. You must understand exactly who does what within the firm and if key personnel are unable to work, who will do what tasks during the incident.

IT

Ensure that IT and communications systems are robust enough and can facilitate remote working, and that there is enough equipment available. This could be as simple as ensuring that company laptops can work securely on third party broadband and that company mobile phones can tether with company laptops, or that alternative broadband access is considered.

Finance processes

Review finance processes and operations to ensure that staff can operate and that all staff can still be paid on time. Put plans in place to ensure that IT, broadband and mobile phone suppliers are paid on time. You could also identify staff who have company credit cards to ensure that emergency purchases can be authorised.

Communications

Ensure all staff can access a secure common communication platform (such as a WhatsApp chat group). Think about introducing a buddy system to further ensure that all staff are safe and feel supported.

As of 22 May there were 159 priority court and tribunal buildings open for essential face-to-face hearings. This represents 43% of the 371 crown, magistrates and family courts across England and Wales.

In addition, a further 115 court and tribunal buildings will remain closed to the public but open to HMCTS staff, the judiciary and those from other agencies. These ‘staffed courts’ will support video and phone hearings, progress cases without hearings and ensure continued access to justice.

Read the courts and tribunals tracker list of which buildings remain open

Safety and security at court

HMCTS has now published an organisational risk assessment and assessment tool which will enable them to keep the safety of their buildings under regular review. This includes answers to questions our members have raised about cleanliness, social distancing and security, and in particular, the use of ‘hands off’ bag searches.

Individual court sites will also be required to complete risk assessments, which will be made available on request for local users, and will also be subject to regular review.

We encourage practitioners to report any poor practice they continue to see on the ground via this reporting form.

HMCTS’ Professional Access Scheme (digital ID cards)

Members have asked whether an ID card scheme for use on entry to court would mean they could avoid searches, reducing the risk of transmission.

HMCTS’ Professional Access Scheme, currently being piloted in some courts with the Bar Council, is designed to allow faster entry for professional users. It removes the need for security searches for those barristers who have an ID app on their smartphone.

The scheme pre-dates the COVID-19 pandemic, and its complex technical and security requirements mean that it cannot be rolled out to all professional users in the short term. For these reasons, it is not a solution to our members’ concerns about safety in courts.

Our members’ safety requires that all court users are able to enter court without being subject to searches involving physical contact, which is why we have prioritised the need for ‘hands off’ searches in advising HMCTS on its risk assessment and policies.

HMCTS is in the process of appointing a new supplier of the technology to facilitate the next stage of the professional access scheme.

We’re keen to receive further details of this, and will be in a position to decide our approach to participation after that.

Which cases are going ahead

HMCTS is publishing daily updates on which cases are going ahead.

We’re pushing for policies and procedures to ensure that:

• risks to our members are identified and they’re informed when a client, or other person with whom they may come into contact, may be infected
• members and clients can maintain hygiene (for example access to soap and water and sanitiser)
• alternative ways of advising and taking instructions (for example by phone) are provided
• rules are adjusted so that members are not penalised for complying with safety advice, social distancing requirements, etc.

Read the latest guidance from HMCTS on safety in courts

Read the latest guidance from the Prisons Service on safety in prisons

Safety in police stations (Gazette Article)  

NPCC guidance and recommendations for the provision of police custody during the pandemic (PDF 554 KB)

We've worked with the Crown Prosecution Service (CPS) and the National Police Chiefs' Council (NPCC) on a coronavirus interview protocol, to assist investigators and prosecutors in deciding whether suspects should be interviewed as part of a police investigation during the coronavirus pandemic.

In general, we recommend following government advice.

If the client is in a risk category, it’s preferable to deal with the matter remotely – for example, by Skype.

We have produced guidance on obtaining electronic signatures.

The LAA has adopted contingency measures for obtaining client signatures remotely or waiving the requirement in some circumstances.

If a visit is necessary, it should be done by staff who are not:

• a risk to the client
• at high risk themselves

Both the client and the employee will need to agree to the meeting despite any risk.

If you cannot assist, an urgent referral to another solicitor may be appropriate.

The Foreign and Commonwealth Office (FC0) advice is to avoid non-essential travel.

Some countries have stopped UK citizens and people who have been in the UK in the last two weeks from travelling or are asking them to self-isolate on arrival.

See the latest FCO travel advice

The MoJ has published some interim measures to assist firms with cash flow. These include:

• initiatives to support civil, family, and criminal legal aid practitioners to keep the justice system running
• changes to make hardship payments easier to access – including reducing the threshold for work done to £1,000, rather than the current £5,000
• pausing some debt repayments to the LAA for legal firms
• aligning legal aid fees for First Tier Tribunal immigration and asylum appeals with HMCTS’s move to an online system for these cases

The government has announced a package of support measures for businesses and individuals affected by COVID-19, which includes a Coronavirus Job Retention Scheme.

Any employer with a PAYE scheme will be able to access support to continue paying part of their employees’ salary for those who have been asked to stop working, but who are being kept on the payroll, known as ‘furloughed workers’. To safeguard these workers from being made redundant, HMRC will reimburse 80% of their wages, up to £2,500 per month, plus the associated Employer National Insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on that subsidised furlough pay.

The scheme will backdate the cost of wages to 1 March. It will be open for four months and extended if necessary. More information can be found on the government’s guidance for employers and businesses update.

The government will also give businesses the option to defer quarterly and monthly VAT payments for the periods ending in February, March and April, as well as payments on account and annual accounting advance payments due between 20 March and 30 June 2020. No application is needed. Businesses will not need to make these VAT payments during this period. HMRC will not charge interest or penalties on any amount deferred. Taxpayers will be given until the end of the 2020/21 tax year to pay any accumulated liabilities.

Other measures include:

• income tax payments due in July 2020 under self-assessment to be deferred to January 2021
• an extension of the interest-free period for Coronavirus Business Interruption Loan Scheme up to 12 months
• the introduction of the Bounce Back Loan Scheme which helps small and medium sized businesses to borrow up to £50,000
• the Coronavirus Large Business Interruption Loan Scheme which supports businesses with an annual turnover of over £45m
• the COVID-19 Corporate Financing Facility under which the Bank of England helps large businesses through purchase of their short-term debt
• a temporary tax exemption for employer reimbursed expenses to cover the cost of home office equipment (such as a laptop, a desk or necessary computer accessories) deemed necessary for an employee to work at home due to COVID-19

See more information on the UK Government business support packages

Statutory sick pay (SSP) will be available from day one to everyone advised to self-isolate, and those caring for others in self-isolation.

For businesses with fewer than 250 employees, the cost of providing COVID-19 related SSP for up to 14 days will be refunded in full by the government to cover the costs of large-scale sick leave.

Employers should keep records of staff absences and payments of SSP. The government will work with employers over the coming months to set up the repayment mechanism.

For further guidance see:

• UK government – stay at home guidance
• UK government – guidance for employees, employers and businesses

If you're concerned about the wellbeing of your staff, you can contact your local Public Health England Health Protection Team.

HMRC has temporarily closed the stamp presses.

As a result, you should not post stock transfer forms and other paper documents for stamping to HMRC. Instead, as part of a temporary new procedure, you should email an electronic version of the documents to HMRC at stampdutymailbox@hmrc.gov.uk.

If you’ve already posted your instruments you should resubmit your notification electronically and include the details of any payments you have made in respect of that notification.

This change does not affect stamp duty land tax.

Read HMRC's guidance on how the new temporary procedure operates

Further HMRC guidance published on 27 March covers how these new procedures will apply to various situations including:

• transfer schemes of arrangement
• reliefs and exemptions on paper shares
• how to request an opinion from HMRC about a payment or penalty
• claims for intragroup relief

The closure of courts and tribunals and cancellation of sitting days due to COVID-19 has financially impacted many fee-paid judicial office holders, including some solicitors in fee-paid judicial roles. We have had ongoing discussions with the Ministry of Justice (MoJ) to ensure financial relief is offered to judicial office holders in need. The MoJ has now announced a COVID-19 hardship scheme for fee-paid judicial office holders who are facing genuine financial hardship.

The SRA has stated it “expects solicitors and firms to continue to meet the high standards the public expect. This means they must do everything they reasonably can to comply with our rules, and follow our Principles. This includes serving the best interests of their clients and upholding the rule of law.”

It expects firms to have appropriate contingency plans in place but recognises the exceptional circumstances firms are operating under now as well as in the coming months.

The SRA says it will be pragmatic and take a proportionate approach to regulating the profession, including in its approach to enforcement. If it receives complaints, it would take into account mitigating circumstances, as set out in its enforcement strategy. It states that “This includes focusing on serious misconduct, and clearly distinguishing between people who are trying to do the right thing, and those who are not.”

The SRA recommends that if you face compliance difficulties linked to the coronavirus crisis, you should clearly record the approach you have taken.

See the SRA’s coronavirus guidance  

Short-term absence

If the COLP or MLRO has coronavirus but the symptoms are relatively mild, the period of time off work, whether due to self-isolating or illness, will be similar to a holiday, so no action should be necessary.

It’s good practice to make sure that other senior solicitors are aware of any issues. It may be useful to have an informal deputy, given that the compliance officer for legal practice (COLP) role is person specific and no formal deputies can be registered with the SRA.

If you can, you should discuss with a colleague absence planning measures and nominate someone to fill in, maintain records and update the MLRO or COLP on their return.

Long-term absence

If the absence is going to be long-term and remote working is unlikely, firms have 28 days to apply to the SRA to:

• replace the COLP
• get an emergency COLP

When the original COLP returns, you’ll have to apply to the SRA to return them to their role.

If you're a sole practitioner, you should consider setting up an arrangement with another solicitor who can be available in these situations. Clients should not be left without a response. You should also ensure that your out of office response for emails has the latest information.

The SRA has more guidance on compliance issues.

See the SRA’s information on compliance queries

We have published guidance on cybersecurity when working from home.

The SRA has published cybersecurity Q&As.

See the SRA’s information on compliance queries

If you’re unable to provide the services required by your client due to the coronavirus you should:

• notify your client as soon as reasonably practical
• suggest they try another solicitor (you could suggest three possible options or give them a link to the Law Society’s Find a Solicitor website)
• seek a deferral or ask a colleague to step in if it’s a transactional matter due to complete shortly

Companies House announced that from 25 March 2020 companies will be able to apply for a three-month extension for filing their accounts.

This joint initiative between the government and Companies House will mean businesses can prioritise managing the impact of coronavirus.

See the Companies House press release

See coronavirus guidance for Companies House customers, employees and suppliers

The SRA expects law firms and solicitors to do everything reasonably possible to comply with its Accounts Rules and to keep client money safe. Due to the current exceptional circumstances the SRA has said it will take a pragmatic and proportionate approach to any delay in the preparation of an accountant’s report.

See the SRA’s information on compliance queries

If you’re struggling to bank clients’ cheques due to the current government restrictions the SRA has provided guidance.

Solicitors and firms should act in compliance with the SRA Standards and Regulations even if they encounter financial difficulty.

That means, among other things, that solicitors and firms must always act with integrity and they must inform the SRA personally if they are in an actual or potential insolvency situation.

Read the SRA guidance on this issue

The Legal Ombudsman (LeO) has published guidance for legal service providers on its approach when considering complaints during the COVID 19 pandemic.

Firms may have difficulty responding to first-tier complaints from clients within the usual eight-week timeframe. For example, there may be delays if staff cannot access files or are on sick leave.

If a complaint is at the first-tier stage, and you cannot respond within the timeframe, it’s important to let the complainant know so that they do not think you are ignoring their complaint.

If possible, give a timeframe for when you may be able to respond. If not, then try to keep the complainant informed at reasonable intervals. You should document any communications. You should also comply with your firm’s existing contingency plans, if any, as far as reasonably possible.

If the complainant escalates the matter to LeO then you can demonstrate that you took reasonable steps to communicate the circumstances and to keep the complainant informed of the situation.

LeO has said that it will work to be as flexible as possible with service providers impacted by the crisis and would take your actions into account.

If the complaint is already with LeO and you’re having difficulty responding to LeO. For example, this may because of the COVID 19 crisis your archive service provider cannot send the files to you.

It will be important for LeO to keep the complainant updated about the delay in progressing their complaint. It’s important that you inform LeO about the circumstances as soon as possible and co-operate in keeping LeO updated. It may help to show LeO copies of any relevant correspondence you have with your archive service provider.

It’s also important that you inform LeO about the circumstances as soon as possible and co-operate in keeping LeO updated. It may help to show copies of any relevant correspondence you have with your archive service provider.

Prospective clients can raise complaints with LeO for ‘unreasonable refusal of service’. You may decline to take instructions from a prospective client if your firm is unable to take on a new retainer due to the current difficult circumstance. We would recommend that you document the conversation and the reasons for refusal; in case a complaint is later raised.

Read the SRA guidance on this issue

In addition to the SRA’s guidance we would also suggest putting your operating arrangements on your website, so that potential customers are informed.

The SDT offices are closed and you should not travel to the Tribunal until further notice. There’s more information on the SDT website.

In response to the coronavirus outbreak the Tribunal has introduced remote hearings. It has issued a Practice Direction dated 15 April 2020 covering remote hearings and a Zoom user guide for those participating in remote hearings.

The Practice Direction applies to proceedings in relation to matters governed by the Solicitors (Disciplinary Procedure) Rules 2007, the Solicitors Disciplinary Tribunal (Appeals and Amendment) Rules 2011 and the Solicitors (Disciplinary Procedure) Rules 2019.

Read the SDT Practice Direction: Remote Hearings and Zoom User Guide

If you need to contact the SDT about an application, a forthcoming hearing or sending documents, email enquiries@solicitorsdt.com. The SDT cannot receive post or DX at the moment.

Paper-based applications such as a variation of directions can still be progressed. These should be sent to enquiries@solicitorsdt.com.

The SDT can now facilitate remote hearings and will be contacting parties directly about their use.

Paper-based applications, such as applications to vary directions, can be emailed to enquiries@solicitorsdt.com.

The SDT has confirmed that new applications are also being considered and, if appropriate, issued and served by email.

Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, however it is possible to supervise the signing of a will using electronic means where you are not acting as a witness to the will.

We've received numerous queries from members about this issue and are actively pursuing a way forward.

We have had initial discussions with the Ministry of Justice regarding the legal requirements for executing a will, including witnessing, and we'll continue to engage with the Ministry of Justice to find a way forward in the current circumstances. We are not looking a digital solution to the witnessing concerns raised by members and have not asked for digital signatures for wills. We will update members once we have received further advice.

Following our discussion with the SRA, it has updated its guidance for solicitors who practice in this area.

We suggest members ask clients to video record the signing of the will if possible. You should make sure you keep good file notes around how instructions came in and how the will was signed. You may also want to think about discussing re-signing the will with clients once social distancing requirements are lifted, where this is appropriate.

In addition to following the SRA’s guidance we suggest putting your operating arrangements on your website, so that potential customers will know what to expect when they enquire.

A new Practice Direction under the Civil Procedure Rules seeks to address the issue of extensions of time.

Practice Direction 51ZA, effective from 2 April 2020, makes provision for parties to agree extensions of time to comply with procedural time limits in the Civil Procedure Rules, Practice Directions and court orders. Parties can agree an extension up to 56 days without formally notifying the court (rather than the previous 28 days) so long as that does not put a hearing date at risk. Any extension of more than 56 days needs to be agreed by the court. The Practice Direction also provides guidance to the court when considering applications for extensions of time and adjournments.

This Practice Direction ceases to have effect on 30 October 2020.

See the civil procedure rules on Justice.gov.uk

It was expected that various court forms containing a Statement of Truth would be updated on 6 April 2020 to reflect new wording as set out in the Civil Procedure Rules 113th Practice Direction Update. Due to the coronavirus outbreak these forms have not been updated and existing prescribed forms can continue to be used.

Civil Procedure Rule 4(2) and Practice Direction paragraph 1.7 allow for forms to be modified as circumstances require, therefore users can modify editable versions of forms to reflect the new Statement of Truth wording.

Uneditable versions of forms that have not yet been updated with the new Statement of Truth wording can continue to be used until a revised prescribed form is issued.

See our guidance on the Coronavirus Job Retention Scheme.

Can trainees be furloughed?

Yes, in the vast majority of cases. The scheme applies to employees who would otherwise be made redundant within an organisation that asks for support. It does not apply to workers or self-employed contractors.

Do I have to agree to be furloughed?

The government suggests that employees should agree to be furloughed. If an employee is being asked to make a significant change to their employment contract, such as a reduction in salary, then they’ll need to agree.

In reality those asked to furlough may not have a choice as the alternative is redundancy. Under most employment law contracts, employees have the right to be paid, not the right to work. It’s probable that if an organisation tops up the government’s contribution so that the employee receives their normal salary, they can insist that the employee be furloughed.

What impact will being furloughed have on my training and ability to qualify?

We’re aware of concerns around furloughing impacting on timescales for qualifying and we’re continuing to engage with the SRA to support those entering the profession.

Can I work for someone else while I’m furloughed?

This will depend on the employment contract you have with your employer. Most contracts require you to be available if your employer asked you to be, so it would not be possible for a furloughed employee to take another job within their usual contracted hours.

Employees would also still have their duty of fidelity and are unlikely to be allowed to work for a competitor.

Can I volunteer while I’m furloughed?

Furloughed employees are allowed to volunteer as long as they’re not adding value to their employer. This means that lawyers may be able to volunteer in law centres and offer pro-bono help.

However, you should read your employment contract before agreeing to any volunteer activity. You may need to ask your employer to grant permission, even while furloughed.

Unfortunately, it’s impossible to know at this time how the current situation will affect training contracts which are yet to start. If you’re in this situation you should ask the firm you are due to start with for an update.

If you’re currently training with a firm you should find out how this situation may affect their workforce planning for the next year. Unfortunately much of the profession is experiencing difficulties and it’s an evolving situation.

The SRA has outlined the arrangements for the PSC and other assessments.