Working for the public interest, in the legal team of the professional regulatory body for an expanding sector, has presented some interesting challenges for this month’s in-house interviewee
Tell us about the legal team at the Scottish Social Services Council (SSSC) and your different roles?
We are a big team of about 40 solicitors. Most of us work in professional regulation, where we investigate fitness to practise concerns about social service workers and then conduct formal regulatory hearings and appeals to the sheriff court. We also have a small team who work in legal and corporate governance, who provide general advice to the organisation on contracts, legislative and governance issues.
The in-house team at SSSC has gone through some fairly major changes since 2013. What prompted this and how did you go about making the changes?
The workforce we regulate grew substantially. Back in 2013 there were only 50,000 social service workers on the SSSC’s register and we had a small team of 10 solicitors. There are now 126,000 social service workers on the register (and it is still growing).
Expanding from a small team to a large team was hard. As a public body we have to demonstrate that there is effective oversight of the team’s work. When we were a small team I personally knew what was happening with every case and hearing. With 300 hearings a year that is no longer possible! We had to develop frameworks that allowed people to work much more independently but with the right assurance checks in place, manage an expanding caseload and at the same time recruit and train new staff. The team has done an excellent job making this happen.
SSSC describes its work as ensuring the people of Scotland can count on social services being provided by a trusted, skilled and confident workforce. What is the in-house legal team’s place in achieving this?
The main place is in the fitness to practise work. This work is critical to ensuring the right people are working in the social service workforce, as at the conclusion of our investigation into a concern, the professional we are investigating may be removed from the register and prevented from working in the sector again.
Hearings to determine this take place in front of an independent three-person panel, constituted like an employment tribunal where the chair is legally qualified. The chairs are all very experienced advocates and solicitors, so conducting a hearing can lead to challenging debates on points of law as well as complex and serious evidential issues. We operate to the civil standard of proof, so our solicitors can sometimes be conducting a hearing where the allegation is a grave sexual offence which has not led to a criminal conviction. Or the case might involve multiple practice failings, requiring many witnesses to give evidence.
What does success look like for your team and how do you measure this?
Working in the public interest, the ethos is not about “winning”. It is about a fair process and a fair decision. There is no one measure of this. We use a range of tools as indicators, including statistical information about outcomes of cases, appeal decisions and substance of complaints.
We have also started to become more proactive in obtaining feedback from people involved in the fitness to practise process, to see how we can improve.
What is it like working for a regulatory body? How does this differ from working for any other type of in-house legal function?
For the solicitors working in the Fitness to Practise department the key difference is that they don’t have a client department instructing them. They are responsible for their own cases and make decisions based on organisational frameworks. When I first started working here, the setup was more traditional, the legal team only gave advice and a client department made the decisions. I remember the first time I personally faced making a complex, finely balanced decision on a serious, high-risk case – it’s harder than it looks.
Do you use external legal advisers? If so, in what circumstances and what do you look for?
We do. Our current contract is with Anderson Strathern. We use them for cases of particular complexity, or where we feel it is appropriate that the matter is dealt with externally. We have also instigated novel court proceedings where we required their expert assistance. They provide opinions on areas of legal complexity, not just around regulation but also for wider organisational issues. It is great to have that expert backup available to you and they feel very much part of the team.
There is a perception that in-house legal teams want to embrace technology but face barriers to doing so? What is the team’s experience of using legal technology?
The barriers we have historically experienced have been around funding, procurement rules and having the expertise to help identify and implement technology that genuinely enhances the work we do.
However, we are luckily just on the cusp of upgrading our technology, bringing in a new case management system and devices that will help us manage our casework much better, but also be flexible about how we work. The next phase is to bring in paperless hearings, which we have spoken about for years but are now tantalisingly close.
What has the team done that is particularly innovative?
The Fitness to Practise department is multi-disciplinary, so the solicitors are working alongside colleagues from the social service sector and others with investigatory backgrounds. They’ve implemented a structure of pods, where a group of four people manage their caseload collaboratively. They meet weekly to discuss progress and help each other with the peaks and troughs of caseloads. Some local authority social work teams also use this structure, and we’ve certainly found the shared responsibility and support approach has been really effective.
You have an in-house traineeship programme. What was the impetus for this and what’s been your experience?
Investing in the next generation of solicitors is important for the whole profession and we think we offer a really interesting traineeship with great development opportunities, particularly in advocacy. We have four trainees at one time and most of our trainees have stayed on after they qualified.
What advice would you give young lawyers who want to start a career in-house? What makes a good in-house lawyer?
For people who think working in-house is an easy option, that has certainly not been my experience! Relationships with your colleagues in the organisation are critical. It is important that colleagues view you as someone helpful who will give pragmatic advice with business-focused risks and options. The tough bit is achieving that while maintaining your professionalism. Boundaries can blur when you know how people take their tea or who they like on Love Island, and you know that telling them there is a legal barrier preventing them doing what they want to do is going to cause them a big problem with their work.
In-house legal teams sometimes struggle with a relatively flat structure. How do you ensure there are adequate development opportunities for all the team?
We’ve been lucky in that respect. As we’ve grown, the promotional opportunities have grown, but we do recognise that we still have to do more to help people’s development. There are opportunities to become involved in various department and organisational projects that develop other skills.
What are the hot topics in your sector?
Regulatory law is developing all the time, and there have been particular developments in the law around dishonesty with the Ivey v Genting Casinos case.
We also have a focus on trying to develop better support for those going through the regulatory process. We have introduced financial assistance to help the professionals we are investigating attend hearings, and we are looking at what more we can do to improve the availability of legal advice and representation.
What key challenges do you share with other in-house legal teams? And what does the future look like for in-house lawyers?
Raising our profile so that there is greater understanding in the profession about the role of a solicitor at the SSSC, and the opportunities and experience it gives you. The Law Society of Scotland has really developed the profile of in-house solicitors and it is great to see there being wider recognition in places such as the categories in the Scottish Legal Awards (where the SSSC has been nominated for Public Sector In-house Legal Team of the Year!).
The Society has also introduced a professional discipline specialism, which is a great marker of the increasing profile of this area of law.
Finally, what do you love about your job, and what do you love doing when the working day is done?
It is always different. One minute I’m discussing setting the organisation’s budget, the next in a contract dispute discussion with suppliers and then hearing about the evidential twists and turns and legal debates that have taken place in one of our hearings. I also get to work with a great team of people.
When the working day is done, my husband and I love walking our dog Santa Paws!
Maree Allison, director of Regulation, Scottish Social Services Council