The Law Society of England and Wales’ (LS) CEO has offered a robust response to the uproar surrounding the fifth edition of the TA6 Property information form, saying a consultation launched last week was the ‘right response’ after the professional body was taken to task by those in the industry.
Ian Jeffery addressed the issues surrounding the form since it’s introduction in March; with many saying the 32-page document was ‘too long’ and ‘confusing’ for clients.
In an exclusive interview with Today’s Conveyancer, he said the society was taking on board feedback through the representative structures within the law society, alongside acknowledging comments made through social media and news outlets.
A decision was made to postpone the mandatory introduction of the fifth edition TA6 and a consultation launched last week will engage solicitors and non-solicitors to understand the issues and make appropriate recommendations for amendments..
Describing the consultation as ‘significant’ Jeffery said LS were investing a lot of time resources and energy into the exercise, including the involvement of an external agency and are ‘encouraged’ by the interest expressed so far from contributors via the online feedback portal
“What that should give us is a lot more information about the practical concerns that people have, talking to those with concerns and those who have already adopted it and started gaining experience of using it in practice.”
says Jeffery adding the external agency will provide additional ‘rigor,’ with quantitative, form led research, alongside focus groups and practitioner feedback. Criticism levelled at the society has been around its lack of engagement with practitioners on the roll out of the updated form; responding to this Jeffery suggested the updated TA6 went through the ‘usual pattern’ of review through the specialist committees and in-house advisors before it was introduced, but acknowledged there had been a ‘strong reaction’ which senior leaders felt needed to be addressed.
“Information comes in to us via lots of different routes and one of the primary routes for getting information is through our representative structures. Every geographical area in the country and every practice area has the opportunity to elect a member to our council. Some of the concerns people have raised have been routed through that representative; that’s what they’re there to do. And we’ve seen comments on social media and other publications.”
The implication is that LS were already on the path of reviewing the implementation of the updated form before the events of last month saw the Property Lawyers Action Group (PLAG) intervene. Its online petition garnered the requisite number of votes to force LS into calling a Special General Meeting; at which it intends to call for a vote of no confidence in Jeffery and current President Nick Emmerson.
Dealing with the grievances raised by PLAG, Jeffery suggests LS have responded to them, are dealing with them, or are ‘unfounded when you unpack the actual risks to the profession.’
When engaging with the various industry bodies regarding improvements to the home buying and selling process Jeffery suggests LS gives what is considers to be an appropriate amount of time to the various working parties.
‘We cannot represent our members interests if we do not engage in those kind of broad industry coalitions and dialogues. It’s extremely important we have a seat at the table’
However there was acknowledgement that it had a ‘limited’ role in the guidance published by the National Trading Standards Estate & Lettings Agency Team (NTSELAT) around the implementation of Parts A,B, and C material information requirements; in part because of the limited scope given to each individual contributing body. Jeffery also suggests it is a ‘matter of judgement’ as to how relevant it is for LS to be represented at the array of meetings and discussions on the topic of improving the home buying and selling process.
“The aim we have is to strike the right balance recognising that not everybody will share the same view”
LS have laid out their response to criticism around the lack of engagement in a series of Frequently Asked Questions (FAQs) on the TA6 forms published last month, saying
“We keep our transaction forms under regular review and update these when necessary.
We do not usually consult with the whole conveyancing or property membership when making these updates and changes to the TA6 form. We followed the same process for this update.
However, we recognise that some members have been surprised by the number and nature of changes to the TA6 form.
We have understood from the feedback we have had that members would have preferred us to consult and be more transparent as the forms were developed.
We agree that, on reflection, we could have communicated the nature of the changes to the TA6 form while the working group was working on the new version and sought feedback as we went through the process.
We are grateful for this feedback and are determined to apply this learning to future significant changes to the transaction forms.”
One major concern raised by PLAG and others concerns the increased liability on solicitors following the publication of the NTSELAT guidance and the requirement for further material information to be collected as part of the updated TA6 form; a topic which Jeffery reminds us is not a new one. The Consumer Protection from Unfair Trading Regulations (CPRs) have been in place since 2008.
LS produced its practice note in 2016, updated this year, outlining its position on solicitor’s liability under CPRs, reiterated during the interview. There is limited case law on the topic, a point to recognise in itself says Jeffery, with the FAQs pointing to Office of Fair Trading v Purely Creative Ltd [2011] CTLC 45, in which what a purchaser “needs” is to be understood in its proper “context”, which includes:
- the fact that sellers can rely on the caveat emptor principle, and
- their solicitors owe them a duty of confidentiality
There is unlikely to be an omission of “material information” (and a solicitor will not, therefore, be in breach of the CPRs) if a solicitor fails to disclose information which:
- is confidential, or
- falls within the caveat emptor principle
LS considers the updated NTSELAT and TA6 does not change this position.
Jeffery suggests this is a risk that has simply not materialised. Since 2008 the residential conveyancing profession has transacted somewhere in the region of 15m properties (on the basis of c.1m transactions p/a) and the Society is not aware of a single recorded prosecution of a solicitor for a breach of material information rules. Any breach of material information rules by a solicitor would require conduct which would almost certainly be a breach of SRA Code of Conduct.
Although LS has not released counsel opinion on the subject this is not unusual. The society is not in the habit of disclosing all the source components of its guidance says the CEO. What is produced is a “synthesis” of counsel, in-house expertise, volunteer and external advice; and like much of its output, is published under the ‘trusted’ LS brand for the benefit of members.
This ‘trusted brand’ is a theme Jeffery returns to on the topic of reassuring the conveyancing community the consultation will not simply pay lip service to the grievances raised.
“I’ll give you three points of reassurance on that”,
he says.
“The first is we’ve commissioned an external agency. We’ve been up front about what the structure of the process is going to be, and we’ve put in multiple ways to engage in that consultation.
The second is the Law Society, and the individuals who are leading Society, are giving that assurance to the profession this is a genuine consultation.
The third is the proof is in the pudding; it’s an extended consultation but its merely a matter of a few months. I believe that at the end of the that period, solicitors will see that the time they’ve spent contributing to that consultation process has been time well spent. “
Has the Society engaged directly with Property Lawyers Action Group, which has described the consultation as ‘disingenuous?’
“We have had a discussion with them since the meeting (SGM) request was made. And I say that because I think its important members know where there is a contentious process of this kind between LS and its members, we would always want to reach out.”
And what happens in the event of a no confidence vote on 23rd July?
“I won’t leap ahead and speculate on the outcome of the meeting but obviously what the meeting does it give that opportunity for views to be expressed from all sides of the equation and argument and for that to form the first step I that wider process of consultation we’ve now announced.”
“The SGM provides an opportunity for members to discuss the issues but ultimately I hope they will support the Law Society and unite as a profession.”
The interview ends discussing the newly elected Labour government which LS has been developing relationships with since its time in opposition and will continue to do so in the coming weeks and months. In the week since the election Chancellor Rachel Reeves has announced plans to build 1.5m new homes in the course of this Parliament. And with the Labour manifesto’s focus on house building and improving the consumer experience of housing Jeffery is confident the progress being made on improving the home buying and selling process will be picked up ‘just as strongly by the current government, if not more strongly.’
But the society chief falls short of calling for legislative intervention at this stage.
“The focus of the discussion here is on how far the main actors in the process at the moment can come together and make improvements. So far as that can be done and regulation or further legislation isn’t needed that may stand the best chance of providing quicker and better outcomes for consumers and professionals.”
Ian Jeffery was talking to David Opie
9 responses
Commencing a consultation (albeit belatedly) was absolutely the right thing to do.
The question is now, is the consultation genuine? The Law Society says it is, but all it’s rhetoric says otherwise.
Did the Law Society not think that introducing such a massive change and trying to turn “Buyer Beware” into “seller beware” (quoting Mark Sellers at the BLG Conference) did not merit a consultation BEFORE? What’s with all the back pedalling now? They should have responded quicker to all the emails/complaints coming through the forms email.
In fairness the TA6 was updated to reflect the NTSELAT guidance which is based on the 2008 Regulations. These are not the Law Society choice and SELLER BEWARE comes from the Material Information which came in through the Regulations and recent case law. On the bright side it means we can be more proactive in sorting titles before a buyer is found which means we have more chance of happy clients and less stress for our Conveyancers.
So does this mean all CA firms will now be proactive in their conveyancing procedures and will assist competent able Solicitors in reducing transaction times and increasing their standards hugely? We will all be watching.
The idea that CA firms are going to be rectifying defective titles before a buyer is even found is laughable at best.
The Law Society has said little, if anything, to support Solicitors faced with a mudslide of proposals to improve the home buying and selling process.
There’s been nothing said publicly about the worth of Solicitors.
There’s been no challenge to the basis upon which reform has been proposed and no challenge to the data or explanations.
Why does it take 22 plus weeks? (Is this even accurate?)
What is the business model of these firms?
How quickly do other firms manage to complete transactions?
What are the real issues in the property transaction process and how can they be addressed?
Many feel TLS has seriously sought to mislead the profession over the liability in both criminal, and civil liability by now seeking to downplay liability, no doubt in the hope to push through the revised form.
Strange how the practice note was in 2016 was seen by so few despite the very serious warnings it contained, and subsequent CQS courses since failed to warn practitioners that one would have normally expected.
Indeed repeated requests made to TLS by myself over the criminal liability went unanswered by so many in TLS, that leads to the natural presumption the dangers were known but deliberately sought to be concealed.
Funny that even Birmingham Trading Standards (BTS) advised estate agents on similar strict criminal liability legislation that if you pass over information you own it for criminal liability purposes, yet TLS take a different view. I would believe BTS given their experience and my own experience in defending criminal prosecutions with the use of specialist barristers.
The repeated refusal of TLS to release Counsel’s opinion is deeply regrettable not surprising when they seek to down play the dangers to the profession, and also to our seller clients.
The repeated use of the word postponement signifies TLS has already made the decision to continue with the new infamous form, no doubt with minor amendments, rather than scaping it which the recent poll showed 90% of conveyancers wanted.
The conduct of a few within TLS indicates this unfortunate saga will continue and unless TLS recognises it’s role is to represent the profession we are likely to see this debacle continue for some time to come.
So basically saying we do not want to get involved in day to day conveyancing issues, we will just cherry pick what we want to oversee.
So with regard to the first point saying just what we have all known for a long time – that there is no leadership where conveyancing is concerned and it is being allowed to stumble along into a state of disrepair as a result.
With regard to the second point that is okay because we have trade bodies and an alphabet soup of acronyms inside and outside the profession interfering with the system as a result of our lack of leadership so it is not our fault what is happening guv.
All totally embarrassing. Apparently there are specialist committees involved in the new TA6?Clearly such was the mess that was made with the Form there was obviously no specialist conveyancer input which is now clearly required. That is the hope with this consultation, that conveyancers on the coalface will be able to tell the Law Society of the day to day issues and they will listen, and we really want the vested interests to be sidelined on this.
Whilst on the subject of committees, what needs to be set up is a conveyancing committee of experienced people from inside the profession, both qualified and unqualified, who actually have the best interests of clients at heart and know what is required to improve the conveyancing system. Fingers crossed.
Consultation was absolutely the right thing to do….. BEFORE releasing the form, which is still in circulation and being actively encouraged by the Law Society. Now the consultation appears to just be the Law Society covering its tracks and trying to legitimise a decision already made long ago. The 5th edition simply will not be repealed irrespective of how many conveyancers contribute to the consultation telling them it’s what they want. We know this because the Law Society must have received hundreds of complaints about the 5th edition and they did nothing – until PLAG forced them to with the threat of a vote of no confidence.