What is the potential role of the Voluntary and Community Sector? Contents 2 INTRODUCTION 2 POLICY CONTEXT 3 RATIONALE FOR OUTSOURCING 4 Arrest and Charge 4 Bail 4 PROBATION TRUSTS 5 Pre-Sentence Reports and Assessments 5 Supervision 5 Programmes 5 Unpaid Work 6 Approved Premises (Probation Hostels) 6 Post-release 6 PRISON 7 Offender Supervisor Role 7 Workshops and Prison Industries 7 CHALLENGES 8 VCS ethos 8 Underdeveloped VCS Market 8 TUPE issues 8 Payment by results 8 KEY QUESTIONS 9 Introduction This is the fifth in a series of Clinks discussion papers that aims to inform Clinks Members and to stimulate debate of the issues that are expected to feature heavily in the new coalition Government’s rehabilitation Green Paper, due for publication in 2010. “Does the voluntary sector’s ethos of voluntarism and flexibility equip it to deliver enforcement and punishment, which are key aspects of offender management?” This paper is focussed on the potential for the VCS to deliver correctional services in custody and the community, including possible new forms of criminal justice delivery which are not currently provided by either the probation or prison services. To help bring together our Members’ perspectives, we would be grateful if you could consider and respond to the key questions posed at the end of this paper. www.clinks.org December 2010 Policy Context The creation of the National Offender Management Service (NOMS) in 2004 introduced the concept of ‘contestability’ into the Criminal Justice System especially in respect of the two key correctional agencies, the National Probation Service, and HM Prison Service. The government response1 to Patrick Carter’s report, Managing Offenders, Reducing Crime2 endorsed the proposal that greater competition between the public, private, and voluntary sector in the delivery of correctional services would improve value for money and effectiveness in reducing reoffending. NOMS would be a ‘commissioning’ agency with both a national and regional structure. The ultimate vision was a market of providers that would compete for funding to deliver custodial and community based services. There was already competition within the custodial estate with a number of private companies operating prisons under contract to HM Prison Service. The probation service, however, had not been exposed to external competition. This was addressed by policy proposals3 which culminated in the Offender Management Act 2007 that made provision for the creation of Probation Trusts – independent bodies directly commissioned by the Secretary of State. All the services that they delivered (with the exception of court report preparation) would be open to competition from 1 http://www.probation.homeoffice.gov.uk/files/pdf/master%2 020pp%20BB.pdf other sectors, or indeed from other Probation Trusts. These developments did not however lead to an increase in private or Voluntary and Community Sector (VCS) delivery of probation services and, in order to drive this policy forward, the Home Office imposed an ‘outsourcing’ target on probation areas of 10% of offender facing services to be achieved by March 2008. This initiative resulted in a small increase in provision by private and VCS organisations. It was replaced by a ‘Best Value’ approach, which was the subject of consultation from April 20084 and adopted as policy in autumn 2008. This framework required probation areas to review identified strands of service delivery (e.g. Unpaid Work) to assess their cost effectiveness and then compare performance against other probation areas. If there was evidence that the delivery was not achieving ‘best value’ these service areas would be ‘market tested’. In 2007, Lord Carter undertook a further assessment of the capacity of the prison service to manage the increasing prison population. Within that review, he asserted that there was further scope for increasing the efficiency of the custodial estate. There were a number of recommendations made including the feasibility of outsourcing some functions and market testing some provision. In January 2008, the National Audit Office published a report5 assessing the cost-effectiveness of the probation service which was highly critical of the service’s lack of information about the unit costs of delivery. 2 http://www.cabinetoffice.gov.uk/media/cabinetoffice/strateg y/assets/managingoffenders.pdf 4 http://www.justice.gov.uk/consultations/docs/cp0608.pdf 3 5 http://www.probation.homeoffice.gov.uk/files/pdf/Restructur http://www.nao.org.uk/publications/0708/the_national_prob ation_service.aspx 3 ing%20Probation%20to%20Reduce%20Reoffending.pdf In response to both of these reports, NOMS began a Specification, Benchmarking and Costing (SBC) programme. The SBC programme identified 97 areas of delivery across both custody and community provision with the intention of producing detailed minimum specifications of delivery including the unit costs. To date, over 20 service delivery areas have been subjected to this process beginning with Unpaid Work, Victim Liaison, and Visitor Centres. Finally, in April 2009, NOMS published its Capacity and Competition policy6 which included a statement of intent to market test 25% of Unpaid Work and Victim Liaison provision that had been subject to Best Value reviews. Does the public sector have the tradition of innovation and risk that is essential to engage with difficult and challenging individuals on the margins of society? There are also issues related to skill and knowledge, value orientation, and the ethos of public sector delivery that are important to consider in deciding which kinds of organisations are best placed to manage offenders and achieve a measure of rehabilitation. This paper is focussed on the potential for the VCS to deliver correctional services in custody and the community, including possible new forms of criminal justice delivery which are not currently provided by either the probation or prison services. Arrest and Charge Rationale for Outsourcing The preceding brief overview of policy regarding contestability and competition in the context of the delivery of correctional services reveals that it has been entirely framed in terms of cost and ‘performance improvement’. There has been little, if any, discussion of the types of service provision that might be better delivered by either the public, private or voluntary sector. For instance: 6 Does the private sector have the experience and characteristics that would make it well-placed to deliver Victim Contact Services? Does the voluntary sector’s ethos of voluntarism and flexibility equip it to deliver enforcement and punishment, which are key aspects of offender management? http://www.justice.gov.uk/publications/capacity-and- 4 competition.htm The police and the Crown Prosecution Service retain the statutory responsibility for these functions. However, in order for both of these agencies to deal effectively with the full range of individuals they come into contact with it is often crucial that they can access VCS provision. For instance, arrestees with drug and alcohol problems, or who are experiencing a range of mental health issues require specialist services to divert them away from the Criminal Justice System or to support them with relevant services to begin the process of stabilisation and possible recovery. Bail Defendants can often be diverted away from custodial remand if they have access to support services that begin to address their needs and increase their capacity to keep to the terms of their bail conditions. The VCS provides a range of mentoring and support services including hostel and other types of supported accommodation. The advantage of this approach is that offenders have an early introduction to the services that support rehabilitation and resettlement, which can then be retained during periods of community supervision. Probation Trusts As a result of the provisions in the Offender Management Act 2007, Probation Trusts were created as ‘free-standing’ organisations contracted directly by the Secretary of State to provide probation services in their local areas. From 2010, it is theoretically possible for entire probation trusts to be ‘market tested’, and organisations from the private and Voluntary and Community Sectors to bid to provide these services. However, services provided to courts are excluded from competition and reserved to the public sector.7 Although there have been some recent mergers of trusts – reducing the original number from 42 to 35 – there has not been a ‘market test’ of any probation trusts. However, there are a range of services currently delivered by probation that are either currently delivered by the VCS or have the potential for being provided by VCS organisations. down (short form) reports and enable the inclusion of a range of VCS services as elements in new community sentences. Supervision There is considerable potential for the VCS to provide ‘offender supervision’ to low level offenders with the public sector retaining the ‘offender management’ role. The probation service has become increasingly focussed on high risk offenders and the management of risk and there remains a need to address the ‘resettlement’ needs of offenders. This requires the capacity to form constructive and supportive relationships with offenders as well as providing them with practical help to access mainstream services from which they may have been excluded. The VCS were consulted on the Specification, Benchmarking and Costing (SBC) process regarding offender supervision. This approach complements the considerable scope for the VCS to work with the Integrated Offender Management (IOM) cohort not currently subject to any supervision (e.g. serving less than 12 months) with the capacity to offer informal support and voluntary supervision over longer timescales than statutory orders currently permit. Pre-Sentence Reports and Assessments VCS organisations provide assessments regarding suitability for interventions and services. These are usually incorporated in Pre-Sentence Reports (PSRs) presented to courts or produced alongside them. Given their statutory basis, PSRs are not appropriate for outsourcing especially as they include recommendations affecting a defendant’s liberty. But of course there is lots of scope for VCSled court-based diversion schemes that could usefully inform Probation staff providing stand7 http://www.justice.gov.uk/publications/docs/capacity-and- 5 competition.pdf Programmes The probation service delivers a range of accredited programmes addressing general offending behaviour, Drink Impaired Driving, Sex Offender Treatment, Violence Reduction, and substance misuse. The VCS delivers parts or all of these programmes in some probation areas. Organisations including Circles of Support and Accountability, the NSPCC, and a range of drug treatment agencies have the experience and expertise to successfully deliver these programmes. Many of these agencies bring the added value of also providing local services into which offenders can be referred to support the learning/progress they have made as a result of attending the programmes.8 Unpaid Work There are currently a range of VCS organisations providing supervised placements at charity shops, Sunday Lunch clubs, and furniture renovation projects, etc. There is scope for broader delivery including assessment and placement across a range of agencies and projects that could be organised by Local Infrastructure Organisations (LIOs) under contract to local probation areas. There would be clear advantages in constructing a model of Unpaid Work with probation retaining the ‘offender management’ function and LIOs sourcing and quality assuring the placements, ensuring that the work was supervised and recorded, and reporting on compliance. Reports on offenders’ progress could be provided to offender managers on a weekly basis. The significant advantage of LIOs undertaking this work rests in their great knowledge of local VCS organisations and the needs of local communities. Approved Premises (Probation Hostels) There are currently 100 Approved Premises of which 12 are currently managed by VCS management committees. The remainder could be ‘outsourced’ with the VCS being in a strong position to deliver this provision. However, this would involve VCS providers delivering a more rigid and enforcement oriented role than they have traditionally been used to (although Langley House Trust do already provide a 8 6 Accredited programmes are also delivered in prisons and again there is significant potential for VCS delivery in this context. small number of high risk beds under contract to NOMS). VCS accommodation providers are specialist in this area in relation to housing support although ‘risk management’ may be an initial ‘deficit’. This could be readily addressed through training and would be more than offset by the quality of housing related support that would be available in VCS provision, including the links that many projects have within local housing strategies and networks. Post-release For all prisoners leaving custody on license the offender management function (enforcement and risk management) would need to remain with the probation service. However, mentoring and ‘through-the-gate’ services could be provided by the VCS within an ‘offender supervision’ package. All contact, other than for assessment and referral purposes, could readily be provided by the VCS. This is a model which was successfully operated within the Connect Project in the West Midlands, and is similar to the programme now being delivered to short sentence prisoners by St. Giles Trust at Peterborough Prison in the Social Impact Bond initiative (where there is no offender management function). The key issues addressed by these schemes relate to accessing housing, welfare benefits, GP services, and education and employment opportunities. These are all areas in which the probation service has little, if any, knowledge or expertise but which are essential to reducing re-offending and enabling successful resettlement. Prison The current position regarding ‘outsourcing’ is fundamentally different for prisons compared to probation. Presently, approximately 12% of prisons are wholly delivered by the private sector. Some of these prisons have been designed, built and managed by the private sector while others have been taken over from the public sector as a result of ‘market tests’. Delivery of entire strands of prison functions (in public sector prisons) has also been transferred to other government departments. For example, PCTs now commission health care services in prisons, and The Skills Funding Agency (OLASS) is responsible for education. Furthermore, the two recent contracts awarded for new prisons have involved the private sector in a partnership with two large VCS organisations (in each case to be responsible for ‘resettlement services’). Finally, for the past 13 years, new funding from health and the European Social Fund to support drug treatment and employment services has been used to commission VCS and private sector organisations to deliver these services. Therefore, there has been a mixed and complex picture of public, private, and VCS delivery of services in prisons. Offender Supervisor Role The traditional role of the prison officer combines both a security and control function, and a personal officer (offender supervisor) role involving support and management of the delivery of the sentence plan and resettlement activities. More recently, HM Prison Service has sought to 7 introduce a new grading structure which would separate the ‘security and control’ function from the ‘offender supervisor’ role, with the latter on a higher grade to reflect the greater responsibility and skill level in managing prisoners’ progress through their sentence. This role would link closely with the resettlement functions and would work together with inmates to co-ordinate the interventions necessary to achieve reductions in risk and re-offending. Most importantly, the role would have as its central purpose the development of supportive relationships with inmates, with a focus on motivation and pro-social modelling, as well as personal counselling (mentoring). This is a role that could certainly be ‘outsourced’ to the VCS. The skill set and experience of many VCS mentoring and volunteering organisations would be entirely relevant within this context, and such an arrangement would bring the added benefit of strong linkages to the community based services delivered by the same organisation(s). It would also provide an operational ‘fit’ with ‘through the gate’ provision. Workshops and Prison Industries There is growing interest in significantly raising the standard and range of work that prisoners undertake during their sentences. Prison management of this area of regime delivery has been constrained by lack of skill and innovation, as well as by the absence of a well-developed external market. Re-commissioning this strand of custodial delivery could bring in both private sector and VCS/Social Enterprise providers better placed to provide the type of ‘real’ work programme envisaged in new government policy. Challenges There are a number of challenges to increasing VCS delivery of services in the Criminal Justice System. These include: VCS ethos As alluded to earlier in this paper, the VCS has an orientation which is characterised by voluntarism and a focus on the needs of service users. The inevitable constraints placed on individuals who have been in touch with the Criminal Justice System may at times run counter to VCS values in this respect and organisations will have to make judgments about the extent to which they can adapt to working within this context. Underdeveloped VCS Market With the exception of a few large national organisations the VCS works locally and often in fragile and uncertain financial circumstances. present a major barrier to the re-commissioning of services. Payment by results The new government is clearly committed to implementing contracts that provide payments only after evidence is provided of positive outcomes for service users. On the one hand, this is good news for the VCS as it potentially frees organisations to deliver their services in innovative ways that are not necessarily tied to bureaucratic processes. However, the payment regime requires organisations to have substantial working capital to be able to deliver the service before receiving payment. For small local VCS organisations this can be a major barrier unless flexibility is introduced to these arrangements. Clinks has recently published a discussion paper further exploring this issue9 If the VCS is to play a much larger role, this will require leadership and facilitation from the public sector. Probation Trusts could fill this role but they will need to manage the inherent conflict that arises from their position as both purchasers and providers of services themselves. The situation is similar within prisons and the commissioning process will need to take account of these issues. TUPE issues TUPE is the set of arrangements for protecting the conditions of service of employees who are transferred from one organisation to another, usually as a result of a competitive market test. For VCS organisations taking on public sector business this can bring major costs in terms of the pensions and salaries that comprise the conditions 8 of service of transferring staff. TUPE may therefore 9 http://www.clinks.org/assets/files/PDFs/Payment%20by%20r esults.pdf Author Key Questions Malcolm Thomson You are therefore invited to submit responses to the following questions, to enable Clinks to build a better picture of current practice and organisations’ support and development needs, and to inform future discussions with government about proportionate outcomes reporting requirements in the ‘rehabilitation revolution’. Policy Analyst, Clinks December 2010 1. What is your experience of commissioners’ / funders’ reporting requirements? 2. What systems do you currently have in place to measure outcomes? 3. What do you see as the greatest challenges to measuring outcomes in the CJS? 4. Do you think your organisation could demonstrate a reduction in reoffending? If not, what outcomes could be practically evidenced? 5. Do you think more standardised evaluation tools for the VCS in the CJS would be useful? To contribute to this debate, please email your views and ideas to [email protected] 9 Other Clinks papers in this series cover: Localising Justice Big Society Innovative services for a rehabilitation revolution Payment by results Visit www.clinks.org
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