The Legal Services Act 2007 (the Act) was introduced in order to improve competition, flexibility, and choice for consumers in the legal services market by enabling entities that are not legal firms to offer legal services. The Act created the Legal Services Board (LSB) which has a duty to promote the regulatory objectives of the Act. The LSB oversees the whole regulatory framework in England and Wales and supervises the work of Approved Regulators and Licensing Authorities which are permitted by law to regulate the supply of legal services and which also have a duty to promote the regulatory objectives. One of the legal activities reserved under the Act is probate. The ICAEW received designation as an approved regulator and licensing authority for probate services in July and August 2014, respectively.
The Probate Committee governs the arrangements for ICAEW’s probate regulation. It is responsible for undertaking ICAEW’s responsibilities as an Approved Regulator and Licensing Authority under the Act for the reserved legal activity of probate.
The Committee carries out its responsibilities within the framework outlined by the regulatory objectives in the Act, its terms of reference and the Probate regulations.
The Committee is comprised of ten members, five of whom must be lay members and five technical members, the chair being a lay member with a casting vote. Half the members of the committee will be practitioners with expertise in the regulated areas. Lay members must never have qualified or practised as a professional accountant and must not be lawyers or persons with legal training. The Chair of the committee is a lay member and has a casting vote. The requirements of the constitution of the Committee are contained in its Terms of Reference. Members are appointed for a term of three years which may be renewed once, with a further option for extension for one additional term.
The Committee may not include any person who is a member of the Investigation, Disciplinary or Appeal Committees. Members of Council do not serve on the Committee.
Function of the committee
The Probate regulations govern the authorisation, licensing and conduct of entities and individuals wishing to undertake probate work within the framework of the Act and compensation scheme to provide consume protection.
- The function of the Probate Committee is as follows:
- ICAEW's functions as an approved regulator and licensing authority as set out more fully in the Probate Regulations, which include:
- considering and determining applications for probate accreditation;
- considering and determining applications for authorised individual, Head of Legal Practice, Head of Finance and Administration, non-authorised owner or probate affiliate status;
- monitoring compliance with the Probate Regulations;
- taking regulatory action as required to secure compliance with the Probate Regulations;
- referring matters to ICAEW’s disciplinary committees as required;
- compiling and maintaining a register of licensed firms and supplying this information to the Legal Services Board as required.
- ICAEW’s functions under the Probate Compensation Scheme Regulations in determining applications for grants.
- To be consulted by the ICAEW Regulatory Board (IRB) in the development of ICAEW policy in relation to probate practitioners.
In cases where the supervision of firms highlights an actual or possible breach of its regulatory arrangements, the Probate Committee will act to protect the public interest and the interests of consumers. This may be through a range of measures, from obtaining an informal undertaking from the firm or individual to put things right to the imposition of formal regulatory and disciplinary sanctions such as the imposition of conditions or restrictions, the suspension or withdrawal of accreditation, disqualification or a fine (the level of which will be guided by the sanctions guidance).
Operation of the committee
The Committee normally meets 4 times a year and meetings are normally held at Chartered Accountants’ Hall. Currently the meetings are held virtually and will continue to be held as such until further notice. The quorum for the committee is five, of whom the majority of whom must be lay members.
At each meeting, the Committee is assisted by a committee administrator who provides administrative support. The Committee is also assisted by a committee secretary, a lawyer, who supports the Committee by providing both legal and procedural advice, when required.
The Committee may also seek advice from any source that it considers appropriate to enable it to discharge its responsibilities.