CMA guidance on consumer protection law – what members need to know

We recently posted about the follow-up to the Competition and Markets Authority’s investigation into the unregulated activities of will writing, online divorce and pre-paid probate. The CMA has taken the view that a guidance document on consumer protection law and subsequent compliance review to monitor its effectiveness are sufficient measures to take currently. In light of this decision, the CMA is currently consulting on the draft guidance document they have produced.

The Society of Will Writers has cooperated fully and supported the investigation. Along with the recently published response from the SWW Professional Standards Board, we will respond to the consultation with our views and thoughts on the guidance that the CMA has drafted.

As mentioned in our previous post, we strongly encourage members to participate in this consultation, given that the guidance will directly impact you and your businesses. You must have your say, so members can either send responses to us, and we will include them with our response, or you can respond to the CMA directly.

What does the guidance cover?

The draft guidance is only 48 pages long and members should find it easy to read and understand. Some of the guidance does cover online divorce and pre-paid probate, the former of which does not fall within the SWW’s remit, so we do not intend or expect members to comment. The latter remains banned under the SWW Code of Practice, and whilst members are welcome to provide their comments, they should know that irrespective of this guidance, this ban will remain in force.

The draft guidance is split into short chapters, with the second explaining who the guidance is for and the third setting out the CMA’s views on the most important consumer protection law requirements that apply to unregulated legal service providers. Most of the information they’ve provided here should be read as common sense, and members should have already familiarised themselves with their obligations under consumer protection law as set out in the SWW’s Code of Practice, so much of this guidance should be as expected.

The fourth and fifth chapters explain how these obligations may apply in practice. The CMA has produced a series of case studies and ‘do and don’t’ checklists to help with this.

It’s important to note that the CMA has credited the unregulated profession for its ability to be innovative and often more affordable than alternative providers. The investigation has not resulted in a recommendation to change the regulatory landscape; rather, it has resulted in the production of this guidance to help stamp out any problems within the sector, particularly surrounding misleading terms and pricing.

To summarise, consumers must be given the information needed to help them make an informed decision. This includes clear information about how the service will be delivered, who by, and at what cost. Terms and conditions should be fair, services should be provided with reasonable skill and care, and sales practices must not be misleading or unfair. We know for SWW members that this is deeply embedded within your practices already, and so we suggest that members put their best foot forward and respond to the CMA to demonstrate their understanding of the guidelines and what it means to be a member.

What are the CMA looking for in a response?

The CMA has produced a series of questions to help generate responses to the consultation, and it is the SWW’s recommendation to read these and use them to produce your responses. These questions can be found in the consultation document.

The question set provided by the CMA asks specifically whether the checklists they’ve created are easy to follow and, if not, how they can be improved. Likewise, with the case studies, they’re seeking responses on whether these are helpful and, again, if not, how they can be improved.

The CMA also wants to know if there are any parts of the guidance that need further clarification or explanation and if it is sufficiently clear and helpful for the intended audience.

There is a further question about whether the CMA should produce a consumer-facing document as well. If people think this is required, they ask who would be best placed to provide such advice.

The SWW would like to draw attention specifically to sections 3.12-3.13 surrounding claims relating to pricing. We welcome views from members on advertising practices in relation to pricing, as we are aware of firms (both SWW members and not) that advertise heavily discounted rates. We seek to understand A) how these are feasible and B) how many customers truly qualify for or receive these types of discounts.

We also welcome views on section 3.53 concerning subscription services, such as will updates and will storage. We have historically advised members against the sale of so-called ‘lifetime update packages’ and welcome members’ views on the feasibility of such sales models.

Section 3.60 onwards covers aggressive sales practices, something which the SWW is aware is happening in the wider sector and aims to ensure that clients of members are not being unnecessarily pressured or coerced into purchasing a particular product or service. We want to know what members views on such tactics are, and whether they’ve any anecdotal information, or lived experience from assisting their own clients.

Members will find the ‘do and don’t’ checklists for will writing under chapter 4 on page 28 onwards. Like the CMA, we’re interested to hear whether members think these are easy to understand and follow and whether they match the guidance that precedes them. Our initial reading has found gaps in relation to pricing guidelines, something which the PSB has also picked up on in their response.

We’ve also highlighted a supposed suggestion to specifically state the unregulated nature of your business, which we would prefer to see replaced with a requirement to state any membership to self-regulatory bodies such as the SWW and what that membership entails. We welcome your thoughts on this specific requirement and any alternative suitable wording.

How to respond

The consultation remains open until 5 p.m. on 13 June 2024. The SWW will be providing its response to the CMA, and we are allowing time for members to read the guidance and provide any comments to us that they would like us to include in that response. Thank you to those who have already sent in your thoughts, or shared them with us in person.

To provide your comments to the SWW, please send them to [email protected] and mark the subject line as CMA Comments – [your name/business name]. This is so that we can appropriately credit these to you.

If you wish to respond directly to the CMA, you can send your comments to [email protected]. The SWW would appreciate a copy of any responses sent directly to the CMA, even if you do not wish them to be included in our response.

Useful links

Consultation page: https://www.gov.uk/government/consultations/draft-consumer-protection-law-compliance-guidance-for-unregulated-providers-of-will-writing-and-other-legal-services

Consultation document: https://assets.publishing.service.gov.uk/media/662bb0b1ae7fb5d93ebf936c/___Consultation_document___.pdf

Draft guidance: https://assets.publishing.service.gov.uk/media/662bb0a0ae7fb5d93ebf936b/__Draft_guidance__.pdf