*/
As I described in the April issue of Counsel, I needed to take sick leave from the self-employed Bar due to a planned major operation that required several months of recuperation. At the time of planning, though, I found there was little information out there on how to prepare and what to consider. I had also heard some horror stories from other self-employed barristers about their experiences during sick leave. So I decided to share my experience and learnings in the hope this might help other barristers in a similar situation – particularly if the leave is unplanned and needed urgently. In part one of this article, I discussed preparation, communication, the all-important recuperation and planning a phased return. This second part looks at the professional, regulatory and financial aspects of taking sick leave.
Whether it is the BMIF (Bar Mutual Indemnity Fund), Bar Council dues, the Information Commissioners’ Office or the Bar Standards Board (BSB) requirements for CPD planning, as we know there is a considerable amount of registration, form filling and payment for the self-employed barrister. How and whether this can be delegated at times of sick leave, or at the very least the deed put off, will be a matter to be taken up separately with each of these professional bodies.
Some years ago, I represented a colleague who was being disciplined by the BSB for ignoring letters to catch up with his CPD after he suffered a traumatic brain injury and was not aware of the letters having been sent. He did not ask anyone to check his pigeonhole and the clerks, while keeping an eye on his practice, did not consider it appropriate to open correspondence addressed to him. None of this cut much ice with the Bar Tribunal and Adjudication Services albeit they did not impose a separate penalty on him. It did therefore appear that we are expected to have a fall-back system in place.
How this now fits in with strict GDPR obligations not to permit access by third parties to our email accounts appears to be a very complex issue such that the only safe advice must continue to be that no third party may be given access to your work email, including clerks and close family members.
On enquiry by me, the Bar Council stated:
If a barrister is too sick to complete the annual process and pay the practising certificate fee, their practising certificate would expire on 30 April. However, once a barrister is ready to return to practise, they can reapply online through MyBar and as long as they have not practised since the expiration of their practising certificate they can obtain a new practising certificate without complication.
There is no special requirement/evidence required as this is part of the standard Authorisation to Practise process.
In relation to the role that chambers should take if a barrister is unable to comply with their regulatory obligations, the Bar Council said:
The BSB Handbook permits barristers to return instructions where illness, injury, pregnancy, childbirth, a bereavement or a similar matter means that they cannot reasonably perform the services required in the instructions (rC26.3.b, also gC83). Where this was necessary it would be good practice for chambers to assist the barrister in letting the client/solicitor know the position, or to take this task on entirely, depending on how poorly the barrister is. It is difficult to think of every possibility and it depends on how chambers is run and how much compliance work is delegated to clerks or practice managers, but a barrister would want to ensure that their insurance were renewed if they still had their practising certificate (insurance is a condition of having a practising certificate), and that their registration with the ICO was maintained. If they still had their practising certificate chambers might want to let the BSB know in the event the illness meant they were unable to complete their CPD on time. This is more good practice rather than a hard rule that chambers must take on these tasks.’
The BMIF is about to carry out a consultation in relation to updating its policy on absences from practice due to illness. For the time being, though, the position is as follows:
We are usually made aware by chambers or the member that a barrister is unwell and may not be able to complete the renewal in time, depending on the nature of the illness. We treat all these cases sympathetically, and the leniency we provide is on a discretionary basis informed by the nature of the illness and vulnerability of the member. We require an email from the member or from chambers confirming that the member is unwell. Because we deal with professionally qualified and regulated individuals we trust our members. We provide adjustments on a discretionary basis. We can hold members covered on a discretionary basis, until such time the chambers or member is able to complete their renewal. Usually, the chambers steps in and completes their renewal for the member. However, if the member is not practising and is unable to do so, the member/chambers usually change their status to that of an unregistered barrister and run off cover is provided to them until they are able to return to practice.
In relation to tax and VAT, long-term sick leave also runs the risk of causing problems. As we know, tax returns have to be put in by 31 January each year and payments made on 31 January and 31 July. In addition, of course, there are quarterly VAT returns. While you may not be working, hopefully payments together with the VAT element will carry on coming in.
Mihiri De Silva from accountants Place Campbell kindly explained to me that there is no formal mechanism for requesting a delay to the requirement for either payment or, possibly even more problematically, preparation of the tax return or VAT return. Unfortunately, therefore, the only way of dealing with the late filing or preparation of a tax or VAT return is by challenging the inevitable penalties and interest after the event.
Mihiri indicated that although she had clients whose penalty assessments were reversed due to sickness, another client was first asked to pay the penalties and interest and then was permitted to appeal. Unsurprisingly, medical evidence had to be produced at any appeal. Speaking to an agent at HMRC might provide a possible compromise, she suggested, but as these situations are dealt with on a case-by-case basis it is very difficult to predict. While Mihiri was not aware of any case where a client had contacted HMRC in advance of the date for lodging a return or payment, she agreed that it might be a sensible first step.
The starting point is obviously to check your chambers’ policies as to whether there is some reduction of rent for sickness periods. The Bar Council does not oblige any chambers to have such a policy but last year it produced some chambers management resources setting out the statutory obligations that do exist (see tinyurl.com/mwhr5pss). The majority of these statutory obligations would not, though, apply to the self-employed albeit many chambers will have chosen to include them in their own policies.
If you have private healthcare but are using the NHS it is worth checking whether in fact you may be eligible for a daily payment on account of not utilising the private health care.
Obviously if you already have critical illness insurance then this may be triggered by a serious medical condition. Travel insurance may also provide a one-off payment for injury.
For the self-employed there exists a non-means tested specific general benefit (around £90 per week) – namely the Employment Support Allowance (ESA).
You will need a sick note from your GP in order to claim this benefit. If you are also sitting as a fee-paid judicial office holder, you will need evidence from the Ministry of Justice (MOJ) as to what sick pay they will be providing. There is some sort of provision for a staggered return inasmuch as your DWP adviser can approve some ‘permitted’ work prior to the ESA ceasing completely.
In addition, you may be entitled to various other benefits including disability benefits. Citizens Advice would be a good place to find out what might be available, as are some of the larger charities dealing with specific medical conditions including Macmillan which offers a very comprehensive overview.
If it has been necessary to cancel sittings as a fee-paid judge, the current judicial sickness policy provides that you will receive your full day’s sitting rate but only if they would not have otherwise cancelled your sitting. The MOJ has a right to cancel any sitting 24 hours beforehand in any event so while it is likely you will receive such pay, there is no certainty. Equally, MOJ will not therefore process any claim in advance of the sitting dates. If your terms of appointment include a minimum number of sitting days and, due to sickness, you have not been able to sit for that number of days in a sitting year, sick pay will be provided for that period.
I sincerely hope that this article may be useful to some – if not now, then in the future. Every chambers should also ensure that they have policies in place to trigger the Bar Council, BSB and BMIF being informed of any sick leave taken by their barristers.
Remember that if you are not well, you are not likely to be doing a great job. Please look after yourselves and bear in mind that even barristers are human!
References
‘Taking sick leave at the Bar (1)’, Sarah Lucy Cooper, Counsel, April 2025
Bar Council guidance – policies and procedures for chambers
‘Help for barristers’ on the Wellbeing at the Bar portal
Macmillan information on benefits and financial support
Sarah Lucy Cooper is a specialist international family law barrister called in 1993 who practises from Thomas More Chambers. She is a family Recorder, mediator and family arbitrator. She is a Latinophile with a love of Latin American music, literature and art, as well as dogs, yoga and marmalade making.
As I described in the April issue of Counsel, I needed to take sick leave from the self-employed Bar due to a planned major operation that required several months of recuperation. At the time of planning, though, I found there was little information out there on how to prepare and what to consider. I had also heard some horror stories from other self-employed barristers about their experiences during sick leave. So I decided to share my experience and learnings in the hope this might help other barristers in a similar situation – particularly if the leave is unplanned and needed urgently. In part one of this article, I discussed preparation, communication, the all-important recuperation and planning a phased return. This second part looks at the professional, regulatory and financial aspects of taking sick leave.
Whether it is the BMIF (Bar Mutual Indemnity Fund), Bar Council dues, the Information Commissioners’ Office or the Bar Standards Board (BSB) requirements for CPD planning, as we know there is a considerable amount of registration, form filling and payment for the self-employed barrister. How and whether this can be delegated at times of sick leave, or at the very least the deed put off, will be a matter to be taken up separately with each of these professional bodies.
Some years ago, I represented a colleague who was being disciplined by the BSB for ignoring letters to catch up with his CPD after he suffered a traumatic brain injury and was not aware of the letters having been sent. He did not ask anyone to check his pigeonhole and the clerks, while keeping an eye on his practice, did not consider it appropriate to open correspondence addressed to him. None of this cut much ice with the Bar Tribunal and Adjudication Services albeit they did not impose a separate penalty on him. It did therefore appear that we are expected to have a fall-back system in place.
How this now fits in with strict GDPR obligations not to permit access by third parties to our email accounts appears to be a very complex issue such that the only safe advice must continue to be that no third party may be given access to your work email, including clerks and close family members.
On enquiry by me, the Bar Council stated:
If a barrister is too sick to complete the annual process and pay the practising certificate fee, their practising certificate would expire on 30 April. However, once a barrister is ready to return to practise, they can reapply online through MyBar and as long as they have not practised since the expiration of their practising certificate they can obtain a new practising certificate without complication.
There is no special requirement/evidence required as this is part of the standard Authorisation to Practise process.
In relation to the role that chambers should take if a barrister is unable to comply with their regulatory obligations, the Bar Council said:
The BSB Handbook permits barristers to return instructions where illness, injury, pregnancy, childbirth, a bereavement or a similar matter means that they cannot reasonably perform the services required in the instructions (rC26.3.b, also gC83). Where this was necessary it would be good practice for chambers to assist the barrister in letting the client/solicitor know the position, or to take this task on entirely, depending on how poorly the barrister is. It is difficult to think of every possibility and it depends on how chambers is run and how much compliance work is delegated to clerks or practice managers, but a barrister would want to ensure that their insurance were renewed if they still had their practising certificate (insurance is a condition of having a practising certificate), and that their registration with the ICO was maintained. If they still had their practising certificate chambers might want to let the BSB know in the event the illness meant they were unable to complete their CPD on time. This is more good practice rather than a hard rule that chambers must take on these tasks.’
The BMIF is about to carry out a consultation in relation to updating its policy on absences from practice due to illness. For the time being, though, the position is as follows:
We are usually made aware by chambers or the member that a barrister is unwell and may not be able to complete the renewal in time, depending on the nature of the illness. We treat all these cases sympathetically, and the leniency we provide is on a discretionary basis informed by the nature of the illness and vulnerability of the member. We require an email from the member or from chambers confirming that the member is unwell. Because we deal with professionally qualified and regulated individuals we trust our members. We provide adjustments on a discretionary basis. We can hold members covered on a discretionary basis, until such time the chambers or member is able to complete their renewal. Usually, the chambers steps in and completes their renewal for the member. However, if the member is not practising and is unable to do so, the member/chambers usually change their status to that of an unregistered barrister and run off cover is provided to them until they are able to return to practice.
In relation to tax and VAT, long-term sick leave also runs the risk of causing problems. As we know, tax returns have to be put in by 31 January each year and payments made on 31 January and 31 July. In addition, of course, there are quarterly VAT returns. While you may not be working, hopefully payments together with the VAT element will carry on coming in.
Mihiri De Silva from accountants Place Campbell kindly explained to me that there is no formal mechanism for requesting a delay to the requirement for either payment or, possibly even more problematically, preparation of the tax return or VAT return. Unfortunately, therefore, the only way of dealing with the late filing or preparation of a tax or VAT return is by challenging the inevitable penalties and interest after the event.
Mihiri indicated that although she had clients whose penalty assessments were reversed due to sickness, another client was first asked to pay the penalties and interest and then was permitted to appeal. Unsurprisingly, medical evidence had to be produced at any appeal. Speaking to an agent at HMRC might provide a possible compromise, she suggested, but as these situations are dealt with on a case-by-case basis it is very difficult to predict. While Mihiri was not aware of any case where a client had contacted HMRC in advance of the date for lodging a return or payment, she agreed that it might be a sensible first step.
The starting point is obviously to check your chambers’ policies as to whether there is some reduction of rent for sickness periods. The Bar Council does not oblige any chambers to have such a policy but last year it produced some chambers management resources setting out the statutory obligations that do exist (see tinyurl.com/mwhr5pss). The majority of these statutory obligations would not, though, apply to the self-employed albeit many chambers will have chosen to include them in their own policies.
If you have private healthcare but are using the NHS it is worth checking whether in fact you may be eligible for a daily payment on account of not utilising the private health care.
Obviously if you already have critical illness insurance then this may be triggered by a serious medical condition. Travel insurance may also provide a one-off payment for injury.
For the self-employed there exists a non-means tested specific general benefit (around £90 per week) – namely the Employment Support Allowance (ESA).
You will need a sick note from your GP in order to claim this benefit. If you are also sitting as a fee-paid judicial office holder, you will need evidence from the Ministry of Justice (MOJ) as to what sick pay they will be providing. There is some sort of provision for a staggered return inasmuch as your DWP adviser can approve some ‘permitted’ work prior to the ESA ceasing completely.
In addition, you may be entitled to various other benefits including disability benefits. Citizens Advice would be a good place to find out what might be available, as are some of the larger charities dealing with specific medical conditions including Macmillan which offers a very comprehensive overview.
If it has been necessary to cancel sittings as a fee-paid judge, the current judicial sickness policy provides that you will receive your full day’s sitting rate but only if they would not have otherwise cancelled your sitting. The MOJ has a right to cancel any sitting 24 hours beforehand in any event so while it is likely you will receive such pay, there is no certainty. Equally, MOJ will not therefore process any claim in advance of the sitting dates. If your terms of appointment include a minimum number of sitting days and, due to sickness, you have not been able to sit for that number of days in a sitting year, sick pay will be provided for that period.
I sincerely hope that this article may be useful to some – if not now, then in the future. Every chambers should also ensure that they have policies in place to trigger the Bar Council, BSB and BMIF being informed of any sick leave taken by their barristers.
Remember that if you are not well, you are not likely to be doing a great job. Please look after yourselves and bear in mind that even barristers are human!
References
‘Taking sick leave at the Bar (1)’, Sarah Lucy Cooper, Counsel, April 2025
Bar Council guidance – policies and procedures for chambers
‘Help for barristers’ on the Wellbeing at the Bar portal
Macmillan information on benefits and financial support
Please complete the Barristers’ Working Lives survey this month to help shape and prioritise the Bar Council’s work
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