2022-23 Regulatory Decisions Report

Authorisations Team

• 873 applications for authorisation decided*, down 28% on 2021-22;
• 2,686 general enquiries received by telephone and 15,887 by email;
• 14 more BSB authorised entities bringing the total to 152; and
• 538 barristers began their pupillage in 2022 compared to 577 in 2021, 400 in 2020 and 504 in 2019.

Contact and Assessment Team

• 2,824 reports, general enquiries, and other cases received by CAT compared to 3,391 in 2021-22;
• 1,732 of these were reports, down from 1,999 in 2021-22, and 179 (down from 200) were other cases;
• 1,582 reports in total were dealt with, a 31% decrease on 2021-22 Cases closed which related to conduct in non-professional life rose from 192 to 215 Reports received involving social media rose from 85 (involving 33 barristers) to 102 (involving 41 barristers) Cases relating to conduct at work that was not related to the provision of legal services fell from 303 to 193.

Investigations and Enforcement Team

• Cases referred for investigation fell from 236 to 122, a decrease of 48%;
• 140 referrals were accepted for investigation (including some which were originally referred the previous reporting year), this was down from 165 in 2021-22; 
• 180 investigations were decided (closed or referred to disciplinary action) compared to 136 such cases in 2021-22; and
• 21 out of 25 cases heard at Tribunal were found proved, each case may result in more than one sanction.
  • 9 led to disbarments
  • 5 to suspensions
  • 3 to fines and
  • 4 to reprimands

Supervision Team

• 79 reports were referred to Supervision from CAT compared to 119 the previous year, a decrease of 34%;
• A further 35 cases were received directly by Supervision compared to 45 in 2021-22; and
• 31 Thematic Review cases were opened in 2022-23 compared to 45 in 2021-22.

Independent Reviewer - Quality Assurance

• In the reporting period, 101 decisions were reviewed by the Independent Reviewer following a request by one of the parties.
• In six cases, the Independent Reviewer made recommendations for further action, or a reconsideration of the decision reached, and/or concluded that although an appropriate outcome had been reached, inappropriate factors had been taken into account.

*_{Of the 2,011 applications for authorisation received, 873 were decided, down 28% on 2021-22. The total number of applications re- ceived includes those at all stages of processing, eg, those with decisions made, those still in assessment, those with information and/or fees outstanding, and those under review.}

Performance against KPI/Service standards

 12. The Authorisations Team is responsible for:

• authorising providers of vocational Bar training and work-based learning/pupillage as Authorised Education and Training Organisations (AETOs);
• authorising entities to provide legal services;
• assessing applications from individuals for exemptions and waivers from requirements of Bar Training or individual rules of the BSB Handbook; and
• managing the administration of the pupillage registration and completion processes, which includes the issue of provisional practising certificates (PPCs) and letters confirming full qualification (ie eligibility to apply for a full practising certificate as a barrister). 

13. The Authorisations Team additionally deals with a significant number of telephone and email enquiries.

Authorisations casework

14. During the reporting period, the Authorisations Team reached a decision on a total of 873 applications, with 70% determined within 12 weeks. This is a decrease in both the number of application decisions and performance against KPIs compared with the previous reporting period.

15. We regret that performance has fallen below our expected service standards for timeliness. There has been a rise in the overall number of applications we have received (that were deemed 'ready for assessment' during this reporting period - 'complete' applications with all necessary documents and fees) as well as changes in the application types received. Capacity has been impacted by a substantial increase in the proportion of applications from Transferring Qualified Lawyer applicants (TQLs) and the related rise in requests for reconsiderations of application decisions, combined with resourcing issues across the reporting period. 

16. The team has been working hard to prioritise cases where there is a specific need (ie, where the outcome is required to facilitate an upcoming court appearance or for entry to a course of study) and to increase its productivity into the next reporting period. 

Workload/Productivity

Transferring Qualified Lawyers (TQLs)

17. Applications for admission to the Bar from the various categories of TQLs continue to be the most common applications for waivers and exemptions received by the team. Demand for access to the online portal to submit an application continues to be very high and does not seem to be subject to seasonal peaks.

18.  These applications are among the most complex dealt with by the team. Applicants are also more likely to challenge conditions imposed, which has resulted in a significant number of requests for applications to be reconsidered by the team.

19.  The team has been reviewing its approach to reconsiderations and will shortly publish a policy clarifying the circumstances in which an application will be reconsidered.

Authorisation of Bar training providers (Vocational AETOs)

20. We did not receive any applications from prospective Bar training providers in the reporting period. One of the existing providers was however granted authorisation to deliver their authorised Bar Courses in a new location, expanding geographical provision to Newcastle.

21.  The team continues to process material change requests from existing providers. We are continuing to work closely with them to ensure that students are able to complete their Bar Courses.

22.  The team also works closely with the BSB’s Supervision Team to identify issues arising from the authorisation processes and ongoing course delivery that may require additional monitoring.

Authorisation of pupillage providers (work-based learning AETOs)

23.  The team has continued to manage the transition of Pupillage Training Organisations (PTOs) to authorised status under our new regime. The deadline for completion of the transition has been further extended to allow all outstanding applications to be processed. The team has removed several applications which had not been progressed by applicants, which has reduced numbers.

24.  The team has granted AETO status to 213 pupillage providers and approximately 50 others are in various stages of processing (eg, initial assessment, awaiting outstanding information, pending a decision, etc).

25.  The majority of new provider and transitional applications continue to be submitted by barristers’ chambers. There has been some interest from solicitors’ firms, local authorities, and BSB entities to deliver work-based learning in the future.

Entities

26.  At the end of this reporting period, there were 152 BSB authorised entities (including 13 Alternative Business Structures, which include lay ownership or management). The chambers model of governance for self-employed barristers remains the leading approach and there is limited demand for more varied forms of structure. Fourteen new entities were authorised in 2022/23, the same as the previous reporting period.

27.  The team did not meet the six-month and nine-month service standards for entity authorisation applications, largely due to extended processing times over the summer (because of the cyber-attack) and the delays in restoration of the dedicated application portal website. The team’s performance improved in Q4 of the reporting period, and we expect that trend to continue in the next reporting year.

Pupillage registration and completion

28.  The pupillage registration and completion processes generate significant administrative burdens for the team in the Spring and Autumn periods (Q1 and Q3) due to the manual processing of the relevant forms. The team registered 538 pupillages during the reporting period; however, 302 of these (56%) were registered in Q3 alone. There is a similar, though smaller, peak in the Spring when provisional practising certificates are issued. The team issued 237 of these certificates in Q1 of the reporting period (35% of the annual total of 676).

29. The team responded to 2,686 telephone calls during the reporting period and 15,887 email enquiries.

30. Telephone enquiries commonly relate to the status of an application submitted to the team, but also to the pupillage registration and completion processes and more generally to the work of the team. There is a correlation between the number of calls and the speed of decision making. This is likely to have been exacerbated by the cyber-attack, during which the team continued to take calls but were unable to process any applications. This may account for the increase of over 300 in the number of calls compared with the previous reporting period.

31. The team has experienced some significant changes and challenges over this period. As we enter the next period, the team is stabilising, and additional targeted resource is being considered to support the team with the backlog of applications.

Types of applications received by the BSB

32. The most common application types were:

• Admission to the Bar as a Transferring Qualified Lawyer (“TQL”) (498)
• Certificate of Academic Standing (136)
• Pupillage reduction (82)
• Reactivation of Stale Qualifications (62)
• Authorisation to conduct litigation (53)

33. There have been some changes in the most common application types, compared to the previous reporting period. Applications for waivers of the pupillage funding and advertising requirements are no longer in the top five, having been replaced by applications for reactivation of stale academic qualifications. This is likely to be a consequence of the COVID-19 lockdowns which may have persuaded some students to defer their Bar Course studies, leading to their academic qualifications becoming ‘stale’ (ie, more than five years old).

34. The most significant change is to applications for admission to the Bar as a TQL. While this application type was also the most common in the previous reporting period, there has been an increase in this reporting period of more than 200. This has meant that the TQL applications amounted to a significantly higher proportion of the Team’s workload – 42% as opposed to 26% in the previous reporting period.

35. The Contact and Assessment Team (CAT) is responsible for handling the general enquiries that come into the BSB by telephone, email and through our website. CAT is also responsible for the initial assessment of reports we receive, that raise concerns about those the BSB regulates.

36.  CAT received a total of 2824 new matters (reports, general enquiries, and other cases) in 2022/23. This was a reduction of 17% compared to the previous year.

37.  There was also a reduction in the number of reports assessed compared to the previous year. This was mainly due to the cyber-attack in Q1 and other challenging events impacting the team.

Performance against KPI/service standards

General Enquiries

38. CAT met its service standard in 76.2% of cases overall. The service standardrequires that we respond to online reports within 5 working days in 80% of cases.

39.  This was mainly due to the reduced output in Q1 when the BSB’s services were offline due to the cyber-attack, resulting in CAT meeting its service standard in 59% of cases during this quarter. This reduction in output can be contrasted with Q4, during which CAT exceeded the 80% target and met the service standard in 87.6% of cases.

40.  The service standard for referring online general enquires to other BSB teams within 3 working days fell short of the 80% target. In 2022/3 CAT achieved 57.5% against this target, which was a slight increase compared to 2021/22 (57.1%).

Initial Assessment

41. CAT did not meet its service standard of completing 80% of initial assessments of reports within eight weeks of receipt. This standard was achieved in 58.1% of cases, which was mainly because of the disruption in Q1 and the resulting substantial backlog of cases that built up.

Quality

42.  CAT maintained very high standards in relation to the quality of its decision making. 96 reports were referred for independent review during this period and 97.9% of decisions were upheld or partially upheld by the Independent Reviewer, exceeding the 95% service standard.

Workload/Productivity

43. CAT has gone through a period of change and restructuring over the past sixmonths. Whilst this has impacted on productivity, the restructuring is now complete and has brought stability to the team. A recruitment programme is now currently underway which will strengthen resource in the team.

Types of concerns and conduct reported to the BSB

Area of law

44. Family law matters continue to account for the highest proportion of reports (6.29%)in 2022/23. However, the overall percentage of family law reports received remained fairly stable compared to the year before (6.7% in 2021/22).

45.  The percentage of reports received relating to criminal law cases rose significantly over the past year and accounted for 5.7% of all reports received in 2022/23 (up from 3.9% in 2021/22).

Other notable trends

46. Of the 1764 reports and other cases closed in CAT in 2022/23, 6% were allocated to the Investigation and Enforcement Team for further investigation and 4% were allocated to the Supervision Team due to the regulatory concerns raised.

47. The number of reports assessed relating to a barrister acting under the Public Access Scheme increased by 30% when compared to the year before (222 reports in 2022/23 compared with 170 reports in 2021/22).

48.  Reports made regarding the use of social media continues to increase. 102 such reports were opened in 2022/23, which is 20% higher than the previous year.

49.  There was an increase in the number reports of sexual harassment - from 6 reports in 2021/22 to 16 reports in 2022/23. The BSB has started to raise awareness of how we deal with these types of matters, to encourage reporting and provide reassurance to reporters. This is a priority for us going forward.

Performance against KPI/service standard

50. The Investigations and Enforcement Team (I&E) is responsible for investigating reports referred by CAT and where appropriate, taking enforcing action which can include disciplinary action for professional misconduct.

51.  The KPIs applicable to I&E’s work cover investigations work and not the disciplinary process, although this is under review. Performance against the relevant KPIs is shown in Table 3 below.

Action to address low performance against the timeliness KPI

52. As previous reports have shown, the KPIs for the timeliness of accepting and completing investigation have not been met for some time. Performance against them reduced further in Q1 of 2022/23 and a temporary plan was put in place to try to address this low performance. Known as the “Accelerated Investigations” plan, it involved creating additional capacity to deal with the casework by outsourcing discrete parts of the investigation process and substantially increasing the frequency of Independent Decision-making Panel meetings as well as taking on temporary staff to assist. The aim was to clear the backlog of cases awaiting acceptance for investigation and increase the rate at which investigations were concluded, as well as reduce the age profile of the live caseload.

53.  To assist further with improving performance, a policy decision was taken that it would be more proportionate, effective and efficient for first time or minor breaches of the practising certificate requirements to be dealt with by CAT and not referred for formal investigation. This reduced the flow of referrals during the reporting year and allowed the team to concentrate its resources on more serious breaches. It also resulted in a higher level of cases already accepted for investigation being “withdrawn” as the change in policy approach meant that it was no longer fair or in the public interest to pursue the investigations.

54. As the paragraphs below detail, the steps outlined above were successful in clearing the backlog of cases awaiting acceptance and substantially increasing the number of investigations concluded in the second half of the year. A reduction in the age profile of the live caseload was also seen including a substantial reduction in the number of long running investigations. However, due to the high number of older cases in the system that were closed in the latter part of the year, as well as the reduction in practising certificate cases that were normally completed within the KPI, performance against the KPI for the timeliness in completing investigations still did not meet the target albeit that it improved by around 9%.

55. Alongside the plan, action was also taken by the Board to improve the salary offering for legal staff in I&E and this allowed the vacant posts in the team to be filled thus creating longer-term internal capacity to handle the caseload. 

Acceptance of cases for investigation – KPI performance

56.  At the start of the reporting year, there was a substantial backlog of cases awaiting acceptance for investigation (61 cases) and performance at the end of the first quarter stood at 6.9%.

57. The Accelerated Investigations Plan allowed us to clear the backlog in Q2. Performance against the KPI for the final two quarters met and exceeded the KPI target with 97.7% of cases meeting the target.

58.  The year-end performance still did not fall within the KPI because of the low performance in the first two quarters and the fact that nearly all the cases in the backlog were outside KPI when they were accepted. The year-end outturn was 46.6% of cases accepted within 10 days against a target of 80% as compared to 53.8% in 2021/22.

Conclusion of investigations – KPI performance

59. The picture in relation to the KPI on the timeliness of concluding investigations is less positive. Performance against the KPI has been well below the target of 80% throughout the year. However, both the quarterly and year end results show the huge improvement in productivity in the second two quarters of the year as a result of the additional capacity created by the Accelerated Investigations Plan. In 2022/23, 177 investigations were concluded as compared to 135 in 2021/22 and 117 of the 177 investigations concluded this year were concluded in the last two quarters.

60.  Overall performance against the KPI improved: up from 34.1% of cases concluded within the KPI in 2021/22 to 42.9% this year but was still below the 80% target. The ongoing low performance was a product of closing a high number of older cases and also the reduction in the presence of practising certificate cases within the caseload (see paragraph 53 above).

Workload/productivity

61. The investigations caseload reduced during the reporting year and was at a more manageable level by the year end. This bodes well for progressing investigations in a timelier manner in the next reporting year. At the beginning of the year there were 237 live investigations and 162 at the end, reflecting the success of the Accelerated Investigations Plan.

62.  The number of new referrals from CAT received during the year also reduced: down from 236 in 2021/22 to 122 in 2022/23. This reduction was mainly due to the change in approach to practising certificate cases: 73 such cases were referred for investigation in 2021/22 as compared to five in this reporting year.

63.  High productivity in concluding investigations in the last two quarters of 2022/23 resulted in an increase in the number of cases referred for disciplinary action, which rose from 29 cases in 2021/22 to 53 cases this year. This does not reflect a change barristers’ conduct but is merely a reflection of the increased level of concluded investigations in the last two quarters. The resulting rise in the number of Disciplinary Tribunal cases will, to a large extent, counteract the capacity created by the reduction in investigation cases. However, now that the Team is up to full complement, we consider there is sufficient capacity to handle the overall caseload going forward. If issues arise again in relation to our capacity to handle the caseload in a timely way, the scaling up of capacity, as demonstrated by the Accelerated Investigations plan, can be deployed again.

64. The use of non-disciplinary administrative sanctions continues to be a useful tool to address breaches of the Handbook that need to be marked but do not amount to professional misconduct requiring disciplinary action. In 2022/23, a total of 58 investigations resulted in an administrative sanction being imposed by either staff or an IDP: this compares to 48 in 2021/22. The increase is due to the higher number of investigations concluded in the reporting year.

Quality of decision making

65. We monitor the quality of the decision-making at the investigations and disciplinary stages via a number of quality indicators as shown in Table 3 above. The quality of decision-making remains high as attested to by quarterly audit caried out by the Independent Reviewers. While we did not meet all the quality KPIs this year, the metrics for the current quality indicators relate to a very small number of cases, so one successful appeal, or one recommendation to review a decision by an Independent Reviewer, will result in the target being missed. The quality indicators are being reviewed, along with all other KPIs, to ensure they reflect a more accurate picture of performance (see paragraphs 95-97 below).

66.  In relation to reviews by the Independent Reviewers, 5 decisions were reviewed and 1 resulted in an accepted recommendation to reconsider the decision. In terms of appeals, five decisions to impose administrative sanctions were appealed out of 58 decisions taken to impose such sanctions – 1 of these was successful. Three new appeals against Disciplinary Tribunal decisions were lodged with the High Court in the year and five were heard. Only one of the five was successful, with a sanction of disbarment being replaced with suspension from practice.

Types of conduct investigated and enforcement action taken

67. It is always difficult to identify trends that indicate changes to the areas of risk in relation to barristers’ conduct. It is inevitable that the most serious breaches of the Handbook will be referred to investigation. For example, dishonesty matters; misleading the courts or others, and criminal convictions always feature highly in I&E’s caseload and continued to do so this year. There were no clear changes in trends this year. Given the backlog in cases awaiting acceptance for investigation that was cleared in the latter half of the year, the statistics for this year are inevitably skewed.

68. Our Supervision Strategy and Framework sets out our approach to supervising barristers, chambers, BSB entities and AETOs. The focus of supervision is to seek assurance that risks identified at both an individual and sector level are being controlled in a proportionate manner so that those risks do not materialise (or if they do, they can be mitigated effectively). The team takes both a reactive and proactive approach: reactive in terms of the unsolicited information we receive from a range of sources about practice at the Bar, and proactive, to gather evidence to support our risk-based approach and to ensure that we are targeting our resources where they are most needed.

Performance

69. The Supervision Team has three KPIs, which ensure that:

• cases are allocated promptly to an officer following referral from the Contact and Assessment Team (within three working days);
• cases are assessed for the most appropriate regulatory response (within 20 working days); and
• letters with remedial actions are issued promptly following a Supervision visit (within five working days).

70. The Supervision Team met its KPIs except in the period of the cyber-attack, as a result of temporarily losing access to case records.

Concerns reported to the BSB

71. The number of cases referred to the Supervision Team as a result of reports to the BSB fell by 30%. This was mainly due to a reduced number of reports referred by CAT in the first quarter of the year as a result of the cyber-attack, and a further reduction in the third quarter due to personnel matters in CAT.

72. The impact of this has continued to have an effect in the first quarter of 2023/24, when volumes of cases referred to Supervision increased as backlogs were cleared in CAT.

73. The number of cases received directly by the Supervision Team decreased slightly as more reports were routinely redirected to CAT to assess in the first instance. Initial assessment by CAT helps to ensure that information is handled consistently.

74. During the year, the Supervision Team focussed on closing actions set as part of the Regulatory Return process. The majority of those actions have now been satisfactorily closed. The open caseload therefore fell over the course of the 12 months.

Themes

75. Reports covered a wide range of themes, including:

• adequacy of complaints handling;
• compliance with the price, service and redress transparency rules;
• data breaches;
• failure to obtain or renew practising certificates; and
• barrister competence.

76. Towards the end of the financial year, we began to receive an increasing number of reports alleging cheating in online exams on the Bar courses. We are grateful to the Bar course providers who have worked closely with us on this matter. These are high stakes, professional exams that are the gateway to practice at the Bar and it is critical that the assessment process is secure and robust. In May we announced the decision to cease to permit the use of online assessment delivery platforms from August 2023 to secure the integrity of the exams. Together with the BSB’s Exams and Authorisations Teams, we continue to work with Bar course providers to ensure that appropriate controls are in place for all assessments.

77. We will be publishing an annual report on Bar training later in the year.

78. We received 18 reports about pupillage in 2022/23, including a number from pupils themselves, who were concerned about the standard of their training or the behaviours of pupil supervisors.

79. Issues often arise because pupils are not clear about the terms of their pupillage or pupillage providers have failed to document their policies and explain them to pupils.

80. That is why we introduced a requirement for all pupillages to have written agreements, covering certain minimum terms. The contents are specified in Part 4D of the Bar Qualification Manual and the Bar Council has produced a template to assist pupillage providers.

81. We would particularly encourage pupillage providers to make sure they are clear about, and document what happens when a pupil needs time out. One question that regularly crops up is what happens if a pupil becomes unwell and needs time off. We do not specify what the arrangements should be other than that they should be covered in the written agreement. It is far better to be clear about this upfront rather than try to work it out when the scenario arises, including:

• what happens to the duration of pupillage – is it extended?; and
• what are the funding arrangements?

82. Often, these scenarios involve equality factors, such as the need to make reasonable adjustments. We have noticed that chambers’ Equality Officers are not routinely involved in pupillage. We would encourage chambers to include the Equality Officers in the pupillage induction process and to ensure that pupils have an opportunity to discuss their need for reasonable adjustments, without fear of recrimination.

83. Pupillage providers should also document in the written agreement what happens if a pupil fails to pass their ethics exam within the usual period of pupillage, including who will be responsible for the cost of re-sits after the second attempt. The first cohorts have now completed the new exam, with the vast majority passing successfully. A very small number have had to attempt the exam three times. We would like to remind pupillage providers that they must be active and engaged in supporting pupils in sitting the ethics exam, and in particular should familiarise themselves with the information about the exam on the BSB website, and make sure that their pupils do too – there is a great deal of helpful information there. Whilst we do not prescribe a preparatory course, the Inns of Court College of Advocacy has developed some training materials to assist pupils in preparing. Some pupillage providers have devised in-house training sessions and arranged buddy schemes with those who have already passed the exam.

Other reports relating to our Supervision activity

84. We have published a separate report on our thematic review of compliance with the financial sanctions regime, which can be found on our website.

85. We are responsible for the supervision of relevant persons under the Money Laundering Regulations. The Regulations require us to publish a separate annual report on our supervisory activity, which can be found on our website. The 2022/23 report is due to be published in the autumn.

95. We learned in 2022/23 that our current KPIs are not fit for purpose in that they do not provide an effective picture of our regulatory decision-making performance. We had already identified this as an issue and started a review of the KPIs in 2021/2022.

96. At the beginning of 2023 we embarked on a project to create a new approach to monitoring performance across all our regulatory decision-making functions. We will soon be introducing the new ‘balanced scorecard’, which has been approved by our Board. This will provide a more holistic and accurate picture of our overall performance. It is being piloted in 2023/24 and will be introduced in 2024/25.

97. In the meantime, we will continue to report against the current KPIs but be mindful of their limitations in providing an accurate reflection of our regulatory decision-making performance.

98. At the start of the calendar year, CAT worked with an independent operational consultant to identify efficiencies that could be made to our processes and ways of working.

99. CAT has since introduced a number of efficiencies to its team structure and ways of working. We expect to see the impact of these changes in the subsequent reporting year.

100. We have experienced challenges this year in meeting our timeliness KPIs for handling initial assessments and investigations. This led us to the decision to carry out an end-to end review of our enforcement processes, to ensure that they remain fit for purpose and still align with good practice in professional regulation.

101. We took the view, and the Board agreed, that the review should be undertaken using external expertise. We therefore started work to commission an independent review.

102. We formally instructed Fieldfisher LLP in June 2023 to carry out the review, following a competitive tender exercise. The review is due to conclude at the end of 2023/24. We expect that implementation of any accepted recommendations for changes to the enforcement system, will commence in 2024/25, following a public consultation.