ICAEW.com works better with JavaScript enabled.

Probate regulation: transparency and engagement top the agenda

Author: ICAEW

Published: 06 Oct 2021

ICAEW has recently been consulting on its new reserved legal services strategy, and on plans to make service and price transparency mandatory for probate-accredited firms. We talk to the IRB’s alternate chair for legal services, Steve Barrow, and ICAEW’s head of regulatory policy, Peter James, about the importance of transparency and how best to engage stakeholders.

When ICAEW became an approved regulator and licensing authority for probate services in 2014, it committed to a consumer engagement strategy that puts the consumer at the heart of regulation.

Two years later, a report from the Competition and Markets Authority (CMA) concluded that competition in the legal services sector was not working well enough. In particular, it found that firms were failing to provide adequate information on issues such as fees and service levels, which made it difficult for consumers to take informed decisions. 

The CMA subsequently recommended that the Legal Services Board (LSB), the overarching regulator for legal services in England and Wales, should work more closely with all the frontline legal services regulators, including ICAEW, to improve transparency on costs and service provision. ICAEW responded with a voluntary approach: asking, rather than mandating, that its probate-accredited firms improve how they present and provide the relevant information to consumers.

“In this context, we’re talking mainly about how firms present information on their websites about prices, services and routes for redress if customers have complaints,” explains Steve Barrow, alternate chair of the ICAEW Regulatory Board (IRB), who presides when legal services are discussed.  “It’s about making that information clearer, and ensuring that consumers are able to access it readily, and engage with it.” 

“We’ve so far been encouraging firms to do this on a voluntary basis by explaining how useful it can be from a marketing perspective” he says. “It’s really one of the best ways of marketing yourself as a profession,” adds Peter James, Head of Regulatory Policy, ICAEW. “So it’s not been a difficult sell to firms and of course, the consumer benefits too.”

Voluntary to mandatory

“We’ve seen a lot of good initiatives from ICAEW’s Professional Standards Department (PSD) in terms of provision of information and guidance,” says Barrow. These initiatives have included best practice guidance, a training webinar, a webpage dedicated to price and service transparency, and further research and benchmarking. 

“And we have seen an improvement from our firms,” he adds. “But that improvement hasn’t been as good as we’d have liked, and the current level of compliance is at best variable. So we’re now moving to making this compulsory, as is already the case with other frontline legal services regulators.”

“We have drafted the necessary changes to the Probate Regulations,” explains James. “And once we’ve completed the consultation process, we will be applying to the LSB to get the rules signed off.  We expect the changes to come into play on 1 December this year.” 

The changes require probate-accredited firms to publish information about the total or estimated fees they charge for work (and how they are calculated), descriptions of the services offered, and information on how clients can complain. Firms should display this information on their website, and if they don’t have a website, publish it on other platforms, or provide it by email or post.

“What we’ve found in the responses to the consultation is that most people have already seen the changes coming,” says James. “We’ve made it very clear over the last three years that if firms don’t address these issues, we’re going to have to regulate.” 

The low level of response to the consultation may in part reflect this expectation. Of those that did respond, most felt the regulatory changes would be effective in opening up the legal services market for more consumers. None believed they would have any problems implementing the changes required in their firms and all were confident that ICAEW’s best practice guide to transparency would be useful in implementing them. Respondents who commented on the impact of the changes did not believe their firm or clients, whatever their background or circumstances, would be adversely affected.     

Next steps

An updated report from the CMA in 2020 highlighted several ways firms might further improve transparency. These included greater utilisation of quality indicators and digital price comparison tools. “Being a chartered accountant is in itself a quality indicator,” emphasises James. “But there are also some more tangible things you can look at providing, such as speed of delivery of services or how quickly you turn around enquires.” 

Although ICAEW includes some information on the use of comparison websites in its best practice guide, it has not so far focused on these. “When we first looked at price comparison tools in 2016, we found they were unreliable and gave misleading information,” says James. “But, in the last few years, the industry has matured and there is now a higher degree of reliability and integrity. Further research still needs to be done, however, and we will be working with other regulators on this to decide how we go forward.”

A working group of regulatory bodies has already been looking at these aspects in the context of conveyancing and employment law services, and will look at probate next (with the participation of ICAEW). 

An aligned strategy

Alongside the transparency changes, the IRB has been asking for feedback on its three-year reserved legal services strategy. “What we are doing here is to outline the IRB’s key objectives in relation to legal services,” says Barrow. 

The strategy, which complements the PSD’s own legal services business plan, sets out a series of goals that are consistent with the regulatory objectives in the Legal Services Act and reflect the LSB’s three core themes: fairer outcomes, stronger confidence and better services. 

The number of responses to the consultation was too small to draw many conclusions. But most respondents felt the strategy supported the IRB’s mission to strengthen trust and protect the public. Most also expressed their support for the key objectives. Other feedback included calls for a broader role for accountants and for ICAEW to do more work on diversity and inclusion.

Engagement and consultation

Consultation with stakeholders is something the LSB views as fundamental to the regulatory process. “Within the IRB, we have reflected that,” says Barrow. “So, one of the objectives in our strategy is that there should be appropriate and effective communication with stakeholders.”

“All our consultation exercises are available on the ICAEW website and open to everybody with an interest,” he explains. “And, as far as our own regulated community is concerned, we are always keen to hear from the profession; from the people at the coal face who are actually doing the job.”

“By consulting on legal services-related matters – such as changes to probate regulations – what we are doing is not only alerting accredited firms to these changes, but also giving them the opportunity to comment on the proposals if they wish, and therefore to potentially influence the outcomes,” he says.

“Part of the backdrop to the consultations is the LSB’s desire to have clear impact analyses for any regulatory changes we want to make,” adds James. “So it’s very helpful to us in presenting a case to the LSB as to why there should be changes.” 

He acknowledges, however, that there is a balance to be struck between engaging regulated firms and consultation ‘overload’. “We are trying to work towards that balance,” he emphasises. “Because we know our practitioners are busy people.”

“Balance is important,” agrees Barrow. “It’s about ensuring we keep people informed and give them an opportunity to comment, without disengaging them with too many consultation documents. And that’s the balance we’re trying to strike.”


Keep updated

Be the first to know when articles like this are released by following us on LinkedIn and subscribing to our monthly newsletter, Regulatory & Conduct News.

Silver cone