Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences

4 Use of the Unpaid Work or Other Activity Requirement

4.1 In this chapter, we examine the implementation and use of what is by far the most frequently used of the CPO requirements: Unpaid Work or Other Activity (UPWOA). In many ways, this is the cornerstone of CPOs as a whole. Certainly in numerical terms, as we saw in Chapter 3 (para 3.11), its use dwarfs that of any other requirement. In 2012-13, for example, some 80% of CPOs were issued with an UPWOA Requirement, an increase on the already high figure of 76% in the previous year. The current use of the requirement is also markedly higher than that of its equivalent disposals under the previous sentencing arrangements.

4.2 The UPWOA Requirement is also central, however, because of the way in which it reflects many of the core themes of the reforms as a whole. It is through the two elements of the requirement - and, critically, the relationship between them - that it was hoped to deliver community penalties that are simultaneously tough, involve a degree of reparation or payback, and help to rehabilitate or reintegrate offenders. In practical terms, that has meant a focus on delivering work placements and other opportunities that are flexible and tailored to the needs of individual offenders; improving the speed with which placements are commenced and completed; and ensuring that such work is completed 'in and for' the local community.

4.3 The Unpaid Work (UPW) element of the requirement has two categories:

• A Level 1 requirement specifies a period of between 20 and 100 hours of unpaid work,
• A Level 2 requirement specifies a period of between 101 and 300 hours of unpaid work.

4.4 While a Level 2 requirement offers a direct alternative to custody, Level 1 (unlike any of the other CPO requirements) need not be, and can be used for those who might otherwise have been fined or who have defaulted on payment of an existing fine. In this respect, the disposal is more widely available than in the past, though its actual form is very close to the type of unpaid work previously delivered under Community Service Orders.

4.5 The Other Activity (OA) element of the requirement is, however, new and has an explicitly rehabilitative or reintegrative focus. This allows offenders to:

'…undertake other activities which are designed to address identified deficits in the individual's lifestyle which may improve a variety of areas of their life.'
(Scottish Government, 2011a, p87)

4.6 While there are upper limits to the use of other activity - it must not exceed 30% of the specified hours of the requirement or 30 hours, whichever is lower - there is no minimum number of OA hours and, in fact, some orders may consist solely of unpaid work. Importantly, however, the exact number of 'other activity' hours is not specified as part of the sentence itself but is determined by the case manager or unpaid work case manager. In principle, this allows for considerable flexibility in terms of the relative balance of broadly punitive, reparative and rehabilitative elements of the requirement and for a close tailoring of the disposal to the needs of individual offenders.

4.7 In the sections that follow, we examine how the requirement has worked in practice, focusing in particular on the ability of local authorities to offer UPW provision that is relevant, flexible and appropriate; the speed with which placements have commenced and been completed; and the nature and extent of engagement with the local community. We then turn to the use of the OA element of the requirement and look, in particular, at how its use is evolving and the factors shaping that.

4.8 The chapter draws mainly on material from the qualitative interviews with CJSW and UPW staff and on the survey of CJSW managers, though it also makes reference to Scottish Government statistics (Scottish Government, 2014b) on speed of commencement of UPW placements.

Relevant, flexible and appropriate provision of UPW

4.9 The National Outcomes and Standards (NOS) Practice Guidance on CPOs suggests that orders with an unpaid work requirement "should provide punishment and challenge to the individual and ensure that he or she pays back to the community through their work" (Scottish Government, 2011a, p73). Therefore, for that to happen, it could be said that UPW provision needs to be relevant, flexible and appropriate. It also simply needs to be available at a volume that is consistent with the use being made of the disposal.

Type and availability of UPW placements

4.10 The way in which UPW placements in Scotland are delivered have not changed as a result of the introduction of CPOs: UPW is typically completed either in project groups, supervised by community payback work supervisors, or in individual placements, often based in local businesses or third sector settings. Nevertheless, the evaluation suggests that the balance between these elements may be shifting in response to the need for a greater volume of placements overall. Moreover, all four case study areas face ongoing difficulties in ensuring an adequate level and range of provision.

4.11 The numbers and types of unpaid work projects has increased (Scottish Government, 2014a). In all four case study areas, the nature of the opportunities for group placements was broadly similar. Project groups, for example, tended to involve activities such as painting and decorating; litter-picking and general clean-up tasks; environmental work in forests and schools; home removals for vulnerable social work service users; snow and ice clearance; and construction projects, such as bicycle paths. There was also broadly similar provision in terms of workshop placements, which allow offenders to learn new skills and provide a safer environment for those who cannot be placed directly in the community. Workshop placements typically focused on the production of items such as benches, picnic tables, sheds, signs, planters and fencing. Workshops were also typically where so-called 'light work' take place - for those who are constrained in what they can do physically.

4.12 There was more variation in terms of the availability of female-only group placements. In one area, a women's group has been established to allow female offenders to learn new skills to produce goods for donation to residential establishments, charity shops, and premature baby units. In some other areas, however, no such provision existed and female offenders therefore had the choice of either joining a predominantly male work group or undertaking an individual placement.

4.13 There was also significant variation in the nature and availability of individual placements across the four case study areas. Typical settings for these included charity shops (where individuals can assist 'front of house' or prepare merchandise for sale e.g. cleaning, ironing), lunch clubs, work in the grounds of residential establishments, animal sanctuaries, etc. However, the number and range of potential host organisations is highly variable, and such placements were much less widely available in the smaller and more rural case study areas.

4.14 CJSW and UPW staff in the case study areas were keen to increase the number and range of individual placements, as these were felt to offer individuals greater flexibility to complete their hours, and to take some of the pressure off the work groups. Indeed, their partial success in increasing the number of placements may explain why concern, from CJSW and UPW staff, about overall ability to resource individual placements seemed to lessen slightly between the first round of case study fieldwork (in late 2013) and the second (in early summer 2014).

4.15 The availability of individual placements is, however, still somewhat unpredictable. In interviews carried out towards the end of 2013, it was clear that many individual placements were the result of ad hoc arrangements involving word of mouth and self-referral by community organisations. By the time of the second round of interviews, there was some evidence of a more coordinated approach. In one area, for example, UPW had been centralised and community consultation along with it. It was hoped that this would lead to improvements in community engagement. This issue of community consultation is returned to later in this chapter.

4.16 Regardless of how such placements originate, they often rely on an ongoing relationship between the UPW officer and the host local business/charity and so tend to be vulnerable to changes in staffing or circumstances at either end.

"We had a really good placement in the local charity shop, but then the manager changed and the new manager wasn't keen."
(Interview 67, UPW staff)

4.17 Discussion at the validation event also highlighted that UPW teams are facing a degree of competition for projects and individual placements from a range of different sources. For example, businesses and other large organisations send staff to volunteer in community projects (e.g. building play parks); the Job Centre is able to provide funded places in a range of settings, including charity shops, as part of a 'returning to work' programme; and the Scottish Prison Service has expanded its outreach programme for people leaving prison and, in at least one area, is now engaged in a group work project previously delivered by offenders completing UPW hours.

4.18 In some areas, these developments were believed to have reduced the scope for unpaid work placements as part of a CPO, in part because it was felt that some organisations would prefer to have members of the public volunteering for them rather than offenders.

Resourcing issues

4.19 As we saw in Chapter 3, the number of community penalties with an UPWOA Requirement has risen sharply as a result of the introduction of CPOs, which according to CJSW staff has placed considerable pressure on local authorities. In this context, the ability of CJSW and UPW staff to identify appropriate placements has been shaped by resource considerations, such as staff shortages and a lack of funding.

4.20 In terms of staffing, there are issues to do with both overall capacity and the number and balance of staff across different roles - for example, UPW supervisors who have responsibility for directly managing group work placements and UPW case managers who are responsible for (amongst other things) the effective planning, management and monitoring of the UPWOA Requirement.

"… the biggest problem of the […] whole introduction of CPOs was that we didn't get the resources at the time to meet the demand. There's been an increase in the number of supervisors. There hasn't in the number of Community Service Officers [now known as UPW case manager], which has its issues in terms of being able to develop 'other activities', for example."
(Interview 67, UPW staff)

4.21 In relation to funding, some of the case study areas had been able to draw on the Scottish Government's project initiation and sports facilities funds, the Scottish Government's proceeds of crime funds, and on other agencies to help fund projects. Others had accessed grants from bodies like 'Cashback for Communities', Environmental Trusts or the Big Lottery.

4.22 But, despite receiving proceeds of crime funding from the Scottish Government, some staff in other areas still had concerns about the budget for UPW and felt constrained in the placements they could offer. One case study area, for example, had been unable to use its workshop as budget constraints had meant it was not possible to recruit the staff qualified to run it. In another, there was little money to invest in developing OA, the other element of the UPWOA Requirement, because of the high running costs of basic workshop premises.

"...we actually have been very lucky with what our Council did, by giving us the building. …. [But] it's very difficult because we also have the running costs. […] Basically, my budget goes on running the building..."
(Interview 77, CJSW)

4.23 This participant believed that one option would be to self-fund, for example by selling the 'products' made in the workshops to fund training or develop OA - currently they are only allowed to charge for the materials. However, this social worker understood that national guidance meant that it was not feasible to make profits from unpaid work. The evaluation team has been unable to verify whether this is a genuine constraint.

"I'm not allowed to... I mean we produce some really really good things. We produce picnic tables, benches, really good painting, but I'm not allowed to make money off them. You know? If I could self-fund... but, you know, I have to only charge for the materials..."
(Interview 77, CJSW)

Flexibility of UPW provision

4.24 There is evidence in all the case study areas from offenders and CJSW staff that offenders are provided with clear information about what is expected of them in their unpaid work (e.g. in relation to where and when they should attend). In Chapter 6 (para 6.29), the necessary limits of flexibility (and the consequences in terms of enforcement and breach) are discussed; here the focus is on the extent to which UPW provision can and should be tailored to the needs of individual offenders within those broad limits.

4.25 A degree of flexibility in the provision of UPW is necessary because of the nature of the client group, which contains many individuals who are not used to working, who have addiction issues, or whose lives tend to be chaotic. For example, UPW staff in the case study areas reported that most groups needed to be oversubscribed in order to balance the level of absences, but that they also had to be able to accommodate people turning up on different days due to unforeseen circumstances.

4.26 Most areas also offer a degree of flexibility around when offenders can complete their hours. For example, work groups take place during the day or at the weekend, and in some areas in the evening.

4.27 This is especially useful for individuals in paid employment or with childcare commitments as it allows them to fit their unpaid work hours around these. It also enables offenders to complete their hours more quickly by attending multiple sessions within a week.

"So you could be doing unpaid work during the day and then go to a group in the evening. Or, you could be working during the day and go to a group at night and go to unpaid work at the weekend. It's quite flexible."
(Interview 56, CJSW)

"Someone who's perhaps in full-time work will come and approach us and they'll say, 'Look, I've got a week's leave, can I come out every day and get a lot of hours out of the way as quickly as I can?', and that's, yeah, if we can cope with that, then we will. But if the groups are oversubscribed, that's when it's a problem for us in that you don't like turning people away."
(Interview 24, UPW staff)

4.28 According to CJSW and UPW staff, one of the constraints around flexibility relates to placement opportunities targeted specifically at women. At present these are generally less flexible in terms of the times and days that they run. For example, while one area offers a drop in on various days of the week, they do not have any women only evening or weekend options. This is perhaps not surprising given the relatively small number of women who receive CPOs in general
(Scottish Government, 2014b).

"…the services for women have a drop in, and are on lots of different days of the week. …they're not in the evenings or the weekends, so they're slightly less flexible in terms of the programme…"
(Interview 56, CJSW)

Assessing suitability and matching of needs

4.29 For UPW to meet its objectives, it needs to be used appropriately. That means there needs to be effective assessment of individuals' suitability for any kind of UPW and a close matching of capabilities and needs to specific placements. Again, there is little here that is specific to CPOs - both processes have been necessary features of previous unpaid work regimes. Overall, the evaluation suggests that the process for assessing suitability and matching offender needs appears to be working well. Nevertheless, the expansion of UPW under CPOs brings new challenges, especially in terms of the volume and range of offenders that need to be catered for, and the type of background information available.

4.30 Offenders' overall suitability for UPW work is initially assessed at the CJSWR stage (and using LS/CMI), and then again after sentencing by the UPW case manager (or by the CJSW case manager if the order also includes a Supervision Requirement).

4.31 According to CJSW and UPW staff, before the post sentencing interview, the UPW case manager looks at the CJSW report (where one was required), reviews the individual's offending history, and runs a criminal record check to see if it flags any risks. Then, in the post sentencing meeting with the offender, the UPW case manager will go through the 'post sentence assessment interview' form which looks at employment status, receipt of benefits, childcare issues, and prior involvement with other parts of the social work department. This assessment is not as thorough as the assessment which takes place at the CJSWR stage but acts as a starting point for UPW staff to determine the offender's fitness to work, whether it is safe for them to work in the community and what type of placement they would be best suited to - for instance, whether an individual placement would be appropriate or not and what sort of 'other activity' would be useful/appropriate.

4.32 The UPW case manager would also discuss the UPWOA Requirement with the offender, tell them how it works, how often they are expected to attend (discuss what days would suit them) and if there are any health issues that would prevent them carrying out their unpaid work or any other issues that could prevent them working at certain times e.g. picking up methadone prescriptions. This is also an opportunity for them to have a chat with the offender, possibly discuss 'other activity' options and go over any worries or questions they might have.

4.33 Sometimes CJSW staff will determine that an offender is suitable for unpaid work, but not in their present state of mind. This might be due to mental health or addiction issues (which will be reflected in the report). The perception of CJSW staff and UPW officers is that Sheriffs are generally accepting of this. They note that in situations in which Sheriffs determine that the only appropriate sentencing option for an individual is either "prison or supervision and unpaid work", in order to avoid a custodial sentence, the UPW element may have to be deferred for a few weeks until the offender is in a more stable position.

Offenders with particular characteristics

4.34 CJSW and UPW staff identified a range of challenges in trying to match offenders with particular characteristics to the most appropriate placements. Some of these relate simply to constraints around the options available. For example, some offenders have particular skills which they are keen to use but can prove difficult to deploy. This can have a detrimental effect on their overall motivation to work.

"If you've got a carpenter that comes in as a service user, we might think, 'Oh great, we'll put him in the workshop and make wooden things', but the carpenter may come in on a Tuesday and we haven't got the workshop open. We actually need weeding to be done at the …garden. So, you know, that's one of these things that just has to happen."
(Interview 35, CJSW)

4.35 There are, of course, a range of other issues around the needs and capabilities of offenders. For example, CJSW staff reported difficulties in finding appropriate work for individuals whose English is limited. Language difficulties can present challenges, too, in terms of ensuring that offenders fully understand what is required of them (e.g. in terms of appointment times, locations, etc.).

4.36 There was also a view among UPW staff that, as a result of the reforms, they were more likely to encounter offenders with additional problems such as addiction issues. From the interviews, however, it was not clear why they felt this to have been the case.

"I certainly perceive an increase in people with problems… [so it is] unsurprising when [their problems] get in the way of […] compliance."
(Interview 24, UPW staff)

4.37 The OA element of the requirement is clearly relevant here as a potential means of supporting individuals to complete their UPW placements. In one case study area, for example, this has been used to set up - in conjunction with a third sector agency - a course for individuals (and in particular young offenders) to complete prior to their UPW placement, focused on any additional needs (such as substance misuse, mental health issues, homelessness or lack of coping skills) they have which might otherwise prevent successful completion of the order.

4.38 Finally, there is the challenge of managing risk, especially in relation to individuals convicted of sexual offences. CJSW staff reported that when deciding on an appropriate UPW placement, they have to balance the fact that the Sheriff (after making an assessment of risk) has chosen to leave such offenders in the community while ensuring that any risk is managed though appropriate supervision, either in the workshop or another set location. In this context, it should be noted that almost all registered sex offenders on a CPO would have a Supervision Requirement in addition to any UPWOA Requirement and that this would involve a risk management plan addressing more than just attendance at UPW.

"So you've got to say, 'Well, he's here, so he's obviously safe enough to be in the community.' We just manage it to see fit, and also just double check yourself. At the end o' the day, at four o'clock, they're going out the gates. They can do whatever they want. Get up to whatever they want. We only manage their safety and the safety o' the public between 9 and 4pm, so you've just got to use a bit o' common sense about how you allocate work."
(Interview 36, UPW staff)

The availability of 'light work'

4.39 While not a requirement, the NOS Practice Guidance on CPOs states, that consideration should be given, where numbers allow, to providing 'light work' parties for individuals whose health or other circumstances make that necessary, or providing individual work placements.
(Scottish Government, 2011a).

4.40 Three of the case study areas had a 'light work' option - typically, this was workshop-based where individuals could be seated, targeted at people with poor physical health, or who were otherwise not fit enough to complete more strenuous work. In some locations, however, this was referred to as a 'half day group' in recognition of the fact that some offenders are not able to carry out a full day's work, regardless of its physical demands, for other reasons - such as inability to concentrate for an extended period. Offenders participating in this group would generally complete two half days a week.

4.41 These options make it possible for those who might otherwise have been deemed unsuitable for unpaid work to carry out meaningful work in a more controlled environment and to split their work over multiple days where necessary.

"…there's some folk we've had with ADHD and you know that six and a half hours is not going to be something that they can retain their attention span for, but three hours is a lot more manageable. So …while we'll always say we have to meet the needs of the service in terms of what we're delivering in terms of national standards - for me it's about, …how can each bit of it all marry up so that you get the best possible experience for everyone."
(Interview 67, UPW staff)

4.42 One of the case study areas had yet to implement a more formal 'light work' option and, as a result, staff felt limited in their ability to find appropriate placements for individuals with health limitations.

Issues relating to the use of Level 1 orders

4.43 In Chapter 7 (para 7.18), some of the positive aspects of Level 1 orders are discussed; here the focus is on the impact of Level 1 orders on the assessment of suitability for UPW. The evaluation suggests that Level 1 orders are posing particular challenges in relation to this, simply because they can be imposed without a CJSWR. The absence of a CJSWR was seen as potentially problematic by many of the CJSW staff interviewed as it can lead to offenders being given unsuitable placements, which have the potential to increase both the likelihood of breach and risk to the public.

4.44 Of course, the UPW team carry out a post-sentence assessment at which they will identity any barriers to the offender carrying out unpaid work and it is often at this stage, particularly with Level 1 orders, that it becomes clear if individuals are not fit for unpaid work. For example, in one case study area, it was reported that vulnerable adults on Adult Support and Protection were being given UPW because their fitness for work had not been assessed. Similarly, Level 1 orders have been given to individuals with serious alcohol or drug problems, requiring the order to be returned to court.

"The sort of, unknown quantities around these Level 1 orders where they haven't asked us for an opinion and we're getting people who sometimes we've never seen before. So we don't know about their background and their history and everything else. And then once we've assessed them, we're maybe having to start backtracking because they may not be fit to do the work. Nobody's provided that information to the court 'cause they've [not] been asked for it…"
(Interview 76, CJSW)

"[…] one of the big issues for us with the Level 1 orders is we just simply don't know what people's issues are."
(Interview 67, UPW staff)

4.45 The lack of an accompanying report means not only that there is a lack of information about offender needs but also that risks may also potentially be missed. CJSW interviewees highlighted, for example, a small number of instances in which registered sex offenders were sentenced to Level 1 unpaid work for defaulting on a fine, for example, without their offending history being known to the local team.

4.46 Because this issue with Level 1 orders are now widely recognised by CJSW/UPW staff and Sheriffs in the case study areas, a variety of responses are emerging at a local level. In one case study area, for example, after CJSW staff raised the issue, Sheriffs have begun to seek relevant information about the offender in court - for example, asking the solicitor if the offender has any health issues or any other reason they may not be fit for unpaid work. While the results of this appear to be mixed - as offenders may not be willing to admit to some needs (particularly around substance misuse) in open court - it has had the effect of raising awareness among Sheriffs of some of the issues around Level 1 orders.

4.47 Another response to the lack of a CJSWR in the case of Level 1 orders has been to make greater use of 'stand down' reports. These are generally requested on the day of sentencing and involve a brief assessment of offender circumstances, needs and risks. Typically, this would involve a criminal records check and phoning around for information on the offender to assess whether they are suitable to undertake unpaid work. An oral report would then be given to the Sheriff later that day. There are of course time and cost implications associated with this approach, in order to carry out the assessment and in terms of the court's time if sentence is to be deferred. However, these need to be set against the cost of bringing orders back to court at a later date because placements have been deemed unsuitable.

Offenders in receipt of Employment Support Allowance

4.48 According to the NOS Practice Guidance on CPOs, an individual who is entitled to Employment and Support Allowance (ESA), reflecting the fact that he or she is not fit for paid employment, would normally be deemed unsuitable for unpaid work and this would require to be reflected in the CJSWR. Where a CPO with a requirement of UPW is imposed despite an individual being in receipt of ESA - as may happen in the case of a Level 1 order because of the absence of a CJSWR - the guidance indicates that:

'[I]t will be the responsibility of the unpaid work case manager to evaluate whether there is any unpaid work the individual can carry out which would fulfil the purposes set out in section 22.4 above. If the unpaid work case manager concludes that there is not, he or she should apply to the court for variation, revocation or discharge of the order, as appropriate, on the basis that the order as it stands is unworkable.'
(Scottish Government, 2011a, p75)

4.49 Two main issues were identified by staff in the case study areas in relation to this. The first was the need to try to check with the GP of an offender receiving ESA whether the individual is actually fit for work or not - a task that was perceived to make the whole assessment process more complicated. A second issue relates to the requirement for people in receipt of ESA to be 'available for work' while carrying out their UPW hours. There was a perception among some CJSW staff (which may not be rooted in reality) that UPW could potentially negatively impact on this and jeopardise an individual's benefits.

"DWP are getting more and more difficult with people and [offenders have] got to be careful they don't end up getting sanctioned. So I think we just have to be very careful around that area."
(Interview 55, CJSW)

Swift justice?: Speed of commencement and completion of UPW

'For CPOs to have credibility with the wider public and, in particular, the victims of the offence and their supporters, who may be in court to hear sentence being passed, it is important that justice be seen to be carried out swiftly.'
(Scottish Government, 2011a, p.73)

4.50 As seen in this extract from the NOS Practice Guidance on CPOs, the need for immediacy has been a central theme in the introduction of CPOs, signalling that community penalties are not a soft option and helping to build credibility in the eyes of the public and the judiciary. That is partly about the time over which such penalties are served - and, as we will see below, that is intended to be significantly less for UPW placements than under the previous sentencing regime. But speed of commencement holds a particular symbolic value in this respect and is the main focus in the following discussion.

Measures and perceptions of commencement speed

4.51 The NOS Practice Guidance on CPOs establishes a number of principles of best practice in relation to speed of commencement:

• The first direct contact with the offender [and a member of the CJSW/UPW team] should take place on the same day the order is imposed, or the next working day.
• Inductions should take place within 5 working days of the imposition of the CPO.
• Unpaid work placements should commence as soon as possible after the CPO has been imposed, ideally on the same working day or within 24 hours and in any event should begin within seven working days of the imposition of the CPO.

4.52 Across interviews with Sheriffs, CJSW and UPW staff in the four case study areas, there was a widespread perception that UPW placements are being commenced faster than under the old Community Service Order (CSO) regime. A similar picture was evident from the national survey of CJSW managers, 19 (out of 30) of whom felt that the introduction of CPOs had led to faster commencement. This also drew positive comment from Sheriffs.

"I know that people are started on orders almost immediately now, which is excellent."
(Interview 6, Sheriff)

4.53 But despite this perception of improvement, not all UPW orders are meeting the intended timescales for first contact, induction or commencement. According to the national statistics for 2012-13 (Scottish Government, 2014b), in the majority (79%) of CPOs, the first direct contact took place within one working day of the order being imposed. While this is a relatively high figure, it still means that around a fifth of CPOs (21%) were not meeting the timescale for first contact.

4.54 According to the national statistical bulletin (Scottish Government, 2014b), about a third of delays in first direct contact were due to offenders missing their appointment, while the unavailability of a social worker or other non-client-related reason accounted for a further third. Other client-based reasons included being subject to another sentence, employment or illness.

4.55 The first induction/case management meeting took place within five working days in 83% of CPOs while roughly a tenth (9%) took between six and ten working days (Scottish Government, 2014b). Therefore, 17% of CPOs with an UPWOA Requirement were not meeting this timescale.

4.56 A wide range of reasons was cited for delays for the induction/case management meeting: about 15% of cases involved the offender being subject to another sentence, employment or illness, another 15% were due to delays in first making contact or staff availability, and about half the cases involved other client-based reasons.

4.57 In terms of actual commencement, in 2012-13, just over 70% of unpaid work placements began within the seven day timescale; a further 18% began within three weeks, while four per cent took more than two months to commence. It was reported that just over a two-thirds of cases (68%) were due to 'client-based reasons' including the offender not turning up on the first day of the placement (Scottish Government, 2014b).

4.58 Findings from the qualitative interviews and survey of CJSW managers reinforce this picture. Twenty-one (out of 29) CJSW managers, for example, estimated that a large majority or almost all (71-100%) UPW placements in their local authority were being commenced within seven days of the order being imposed; and ten (out of 30) estimated that a similar proportion of UPW placements were being started on the same working day or within 24 hours of the CPO being imposed.

"…it works very very well, so we're meeting […] our statutory time limits that it's got to be done within sort of seven days or 24 hours, so we're meeting the majority of them. It's working very well."
(Interview 36, UPW staff)

"…nine times out of ten, unless there's a particular issues with the client themselves, then UPW is commencing within seven days."
(Interview 14, CJSW)

4.59 However, it is also clear from the survey of CJSW managers that improvements in the speed of commencement were not necessarily evident across the country as a whole. CJSW managers from ten local authorities identified no difference in the speed of commencement (compared to the situation prior to the reforms), although this was generally seen as reflecting an existing emphasis on speed rather than a failure to adapt.

"Well, prior to CPOs, there was a couple of years' period where there was heavy pressure put on starting community service …quickly. So, I think there was already [a] spotlight on getting things started before CPOs came in."
(Interview 35, CJSW)

4.60 Overall, then, the picture seems positive in terms of speed of commencement. However, there are two slight caveats worth noting. The first is a suggestion that the requirement for speedy commencement has shaped the type of UPW on offer - in order to facilitate commencement within the first 24 hours, for example, most case study areas organise placements that almost anyone can do on the first day, such as litter picking. The second is that it is not clear that momentum is always maintained after the first day's work. In at least one area, it was suggested that there could then be a delay - sometimes of 7-10 days - in finding a more suitable placement for someone to complete the rest of their order:

"They tick that box but sometimes it could be ten days later before they're due back out again. […] If it's designed to show, you know, we mean business here, we're a serious court order, you know, if you were sentenced to custody you go the same day, if you're sentenced to Community Payback it's the same day. I understand that but I don't understand why then we'll get this gap."
(Interview 4, UPW staff)

Factors affecting commencement speed

4.61 Interviews with CJSW and UPW staff in the four case study areas suggested a number of broad factors that are affecting their ability to meet the deadlines for speed of commencement.

Offender-based factors

4.62 First, there are those that relate to the characteristics or behaviour of offenders. For example, one of the most common barriers to commencement within either the 24 hour or seven day timescale is simply that offenders fail to turn up for UPW. Reasons for this include, offenders claiming not to be fit for UPW following sentencing (despite presenting as fit at the CJSWR interview) or offenders not turning up when expected. It was also felt that some offenders struggled with the speed and structure of the order, with health issues, or to combine UPW with full time employment. It was also acknowledged by CJSW and UPW staff that many individuals on UPWOA Requirements lead chaotic lives, have drug or alcohol problems, or unstable accommodation and that immediate adjustment to a highly structured routine is unrealistic.

"We have always acknowledged that if we don't accept people on community service, who had alcohol or drug problems, who had poor mental health, who had unstable accommodation, we wouldn't be doing anything, we'd be sitting twiddling our thumbs, because that is the nature of the presenting problems."
(Interview 55, CJSW)

"You're dealing with human beings who might say in court they'll do anything but walk out and not do it."
(Interview 35, CJSW)

4.63 The issue of an offender's employment status being the reason for not beginning an UPW placement can be difficult to manage, as employment is often highlighted in the CJSWR as a reason for keeping the individual in the community in the first place. Consequently, CJSW staff indicated that they will sometimes allow a degree of leeway at the beginning of a placement, so long as they see a clear demonstration of commitment in subsequent weeks.

"Some of the clients always have a good reason - quite rightly so - not to attend, and you've just got to accept it. But that's OK. That'll be reinforced by their attendance the following week, and, if it's not, you then have to start a little bit of enforcement by saying, 'Well, I've given you leeway, and now you've not attended, and you're using the same reasons. You either do it, or I take it back to court and say to the Sheriff you've accepted the order but you're not flexible enough to attend'."
(Interview 36, UPW staff)

4.64 Attempts to ensure the prompt commencement of unpaid work can also sometimes be complicated by an offender already being on a CPO with an UPWOA Requirement. This means that they cannot start the hours on the new CPO until they have completed their existing one.

"…some of the other things that can get in the way are you might get 150 hours' unpaid work on a Thursday but you've just started 120 hours' unpaid work the week before, so we can't start that 150 hours until they finished that 120 hours. So, you know, it might be weeks away before they actually start that order but they might already be on another one."
(Interview 35, CJSW)

Process and communication issues

4.65 Strong relationships and communication between CJSW staff and the court appear to aid in the notification process from the court in relation to UPW, and where these are less good that invariably takes longer.

4.66 Many of the UPW/CJSW staff interviewed felt that commencement was faster for CPOs than for the previous community disposals because of the fact that the court should now issue the order on the day of sentencing. If a member of the court-based CJSW team is unable to attend a specific hearing, court staff will let them know that a CPO has been issued and, where possible, direct the offender to the CJSW team before they leave court. It was suggested that this did not happen before the introduction of CPOs. In one of the smaller case study areas, there was also evidence that the solicitors too, would encourage their clients to speak to the court-based social work team before leaving court.

4.67 In another case study area, there was variation by geographic area. In a relatively self-contained area with a small court, communication was good and orders were served on the same day as being made. However, in another, more rural part of the local authority, where the relationship between CJSW staff and the court was less direct, the time between the court issuing and CJSW becoming aware of an order could be greater.

"It can take three days here before we get the orders [from the court]"
(Interview 77, CJSW)

4.68 Although there were isolated suggestions from CJSW staff of delays at the court end, court staff suggested that any such delays resulted from a conflict in priorities and deadlines - in other words, the need to first ensure that they meet their own performance indicators.

4.69 There is also some evidence that different methods of communication have an impact on speed of commencement. Most communication within local authorities is electronic (although some forms are still completed initially on paper), involving either secure email or access to a central database. As a result, placements can usually be allocated swiftly. Orders from courts in other local authorities, however, are generally sent by post and can take several days to arrive.

"In [name of case study area], we get a dump from the Scottish Court Service into our secure email box. Other places, it might be by snail mail. If they're coming from England or Wales, it will definitely be by snail mail and coming from other courts into [name of case study area], there's likely to be a delay. So, the ones coming from [name of case study area], you know, you're pretty sure that, for the most part, for the majority, you should get them started within the time. Other ones, you know, it's gonna be more hit and miss."
(Interview 35, CJSW)

4.70 Across all four case study areas, CJSW staff were keen to see all communication relating to UPW placements in electronic form, as it was felt that this would speed up the transmission process both within and between local authorities. Currently, staff are deploying a range of workarounds to address delays in the system. One CJSW Manager, for example, encouraged their team to be pro-active and phone other local authorities for details of relevant court disposals on the day, rather than wait for details to arrive by post.

4.71 Internal discussion and communication within the CJSW team - for example, supervision meetings - was considered useful as means of reviewing cases and exploring the reasons why some of the timescales may not have been met.

4.72 Wider process factors that were believed to aid the speedy commencement of unpaid work included notifying offenders at the CJSWR stage where and when they should attend should they receive a sentence involving UPW. CJSW staff in some areas were also warning offenders in advance that, if they receive an UPWOA Requirement, they will be expected to work on that day.

"And as part of the letter that we have for them, to court, it confirms that they are aware that, should they be sentenced to unpaid work, they have to go out - they've consented to going out that afternoon. 'Cause there was… probably word on the street, 'Oh, if you say this, they'll let you go away,' and all of a sudden emergency dental appointments were through the roof."
(Interview 13, CJSW)

4.73 Increased CJSW/UPW staff presence in court at the point of sentence was also felt to increase the likelihood that a post sentence interview or first appointment with court-based CJSW staff would take place on the same day.

"They get the order printed out by the clerk, sign it and then they're sent down to their main office that same day. They are then signed up by an officer who will just go over things with them. For example: are you still living at this address? Have you got a mobile phone number? Have you got any disabilities? Are you working? What days could you work? They will then be told to come in the next day for their health and safety induction."
(Interview 35, CJSW)

Structural and organisational factors

4.74 A number of structural and organisational factors also appeared to have influenced whether best practice timescales were being met. These included the centralisation of UPW placements and the proximity of UPW to the court, and simplifying the first UPW placement so that (almost) anyone could complete it on the first day.

4.75 In three of the four case study areas, the administration of UPW placements had been centralised following the introduction of CPOs. This generally meant that all those with an UPWOA Requirement reported to the same location for induction, often enabling them to start their placement on the first day (or within 24 hours) too. This was widely viewed as an improvement on previous ways of working:

"Under the old system they struggled to meet the Key Performance Indicators in terms of getting people interviewed and started on placement within seven days, no matter how they tried it"
(Interview 2, UPW staff)

4.76 Alongside the centralisation of unpaid work in at least two of the case study areas, a single manager or team leader had been appointed with an overview of unpaid work as a whole. It was felt in some cases that this had led to a clearer focus on unpaid work and to a range of service improvements, including speedier access to placements.

4.77 While the fourth case study area was looking into centralisation of its UPW team, at the time of fieldwork unpaid work inductions were still taking place in a separate location, thus extending the time taken to actually start the order.

4.78 The location of UPW offices in relation to the court is also important. Having unpaid work within walking distance of the court was perceived to increase the likelihood of offenders going there after being sentenced at court.

"It is very useful having a social work office based [close to] the court whereas other councils don't have that luxury."
(Interview 2, UPW staff)

4.79 In order to facilitate speedy commencement, most areas had also moved towards provision of initial placements that (almost) anyone could undertake, such as litter-picking.

Speed of completion

4.80 A significant difference between a CPO with an UPWOA Requirement and the old CSO (Community Service Orders) is the amount of time offenders are given to complete their hours. With a CSO, the average timescale was 12 months, regardless of the number of hours involved, while offenders serving CPOs now have three months to complete a Level 1 order (20-100 hours) and six months to complete a Level 2 order (101-300 hours), unless the court determines otherwise. There were mixed views about the feasibility of completing UPW hours within the new timescales.

4.81 Most CJSW and UPW staff were initially unhappy with the shorter timescales, and particularly those for Level 1 orders because of the potential difficulty of managing someone through 100 hours in three months. This was viewed as challenging both in relation to offenders who are unemployed and may lack the structure and personal discipline to attend frequent appointments, and those in work and so have limited availability each week. It was also felt that the margins for error were slight, and that a single missed appointment could sometimes leave offenders struggling to complete on time.

"If someone gets 100 hours [UPWOA], and the Sheriff only gives them three months [to complete these hours], if [the offender is] off once, that's it, you know? […] we're continually over the time, because somebody's ill or something..."
(Interview 77, CJSW)

"A three month order rather than 12 months. […] if it's 100 hours, that can be quite a task for them…particularly if they're on unpaid work and if they're in full-time work…and they're only available a limited amount of time each week."
(Interview 24, UPW staff)

4.82 Since then, views seem to have diverged. While some CJSW and UPW staff still believe the timescale to be too short, others feel that it can work and see some of the benefits of this in terms of maintaining the link between the conviction and the punishment and in providing staff with a greater focus on ensuring that hours are completed.

4.83 It was also felt that Sheriffs increasingly appreciate the difficulty in giving 100 hours to someone only available at the weekends - in part because of the number of reviews they have received asking for extensions - and so are adjusting the timescale or number of hours as appropriate at sentencing.

"[Sheriffs will] say, 'You'll get 100 hours, or 90 hours, and you'll... do it in four months' or, they might reflect the gravity of an offence by saying, you know, 'You've got four months to do it, but you're getting 120 hours', so they ...impose something a little bit stricter, but it works quite well."
(Interview 36, UPW staff)

4.84 The timescales for Level 2 orders were generally seen as less problematic. Although CJSW and UPW staff felt that anything over 200 hours in six months could be challenging - particularly if offenders were working full time, had family commitments or could only undertake light work - the actual number of hours involved in most Level 2 orders was felt to be manageable over the longer timescale.

"Again that's a big change for us but we're always aware of timescales, we monitor timescales and try and find placements that can accommodate that and that's a big challenge. But one I think that we all take on."
(Interview 4, UPW staff)

4.85 In relation to both Level 1 and Level 2 orders, CJSW staff suggested that identifying an appropriate placement, addressing particular needs for flexibility and applying for extensions when appropriate were all important factors, but that, ultimately, outcomes are also strongly dependent on the motivation of the offender.

In and for the community?: UPW, community consultation and community payback

4.86 As we highlighted in the introduction, the notion of community is core to the reforms and to the very notion of payback. This finds perhaps its clearest potential expression in the area of unpaid work, with the suggestion that such work should be carried out in and for the community.

4.87 There is little doubt that much UPW in all four case study areas was being carried out in community settings. As already highlighted, this included group work projects to clean up the local area, building work and renovation. Most individual placements are also with local community groups and charities. As such, offenders carrying out UPW could undoubtedly be said to be 'paying something back' to the communities in which such work is carried out. What is much less clear is the extent to which members of the public are aware of this. There were some isolated examples of improvement or building work being labelled as having been completed by individuals carrying out unpaid work orders. In general, however, there were few examples of such work being well publicised. In this context, one factor may be the willingness and ability of organisations hosting placements - and, in particular, of the local managers of those organisations - to highlight those to the wider public.

4.88 The introduction of CPOs has, of course, placed a requirement on local authorities to consult with stakeholders and engage with the community, especially in finding suitable UPW placements. In the survey of CJSW managers, almost all indicated that their authority had carried out some form of community consultation - most frequently with Community Councils, Community Planning/Safety Partnerships (30 out of 30); or voluntary organisations (28 out of 29). Typically, this was aimed at providing information about CPOs, gathering views about community penalties and building partnerships for UPW placements. The Scottish Government Summary of Local Authority Annual Reports 2012-13 also listed a wide variety of community consultation that had been undertaken. Some of the reported benefits of this consultation included raising awareness of UPW and generated some suggestions for UPW projects
(Scottish Government, 2014a).

4.89 However, in the four case study areas - and, elsewhere in Scotland, according to feedback at the validation event - such consultation has been somewhat fragmented and ad hoc in character. There was little sense of a strategic approach to community consultation and, indeed, CJSW managers highlighted the resource implications of addressing the issue more systematically.

"If you're going to go to community groups then that actually does take time if you're doing that properly and it's not like lip service to it. So there's still that part of it I think needs to be developed."
(Interview 67, UPW staff)

Flexibility and inconsistency: The introduction and evolution of the 'other activity' element

4.90 As noted earlier, one of the distinctive features of CPOs by comparison with earlier penalties involving unpaid work is the inclusion of the OA element. As a result, and perhaps not surprisingly, this has taken longer to bed down. While there is increasing provision for - and understanding and use of - OA, this is inconsistent and still evolving. In this section, we examine to what extent and how OA has been used and some of the factors influencing that; and we ask whether the benefits associated with the flexibility of OA are being outweighed by inconsistencies in its implementation.

The use of OA

4.91 Findings from the survey of CJSW managers indicated that, at the time the survey was conducted in Autumn 2013, OA in most local authorities was still in its early stages. While managers from 16 local authorities (out of 27 from whom we had a reply) felt that the majority of offenders (51% and over) were assessed as being suitable to undertake OA, 22 (out of 27) indicated that only a minority (less than 50%) were actually undertaking some form of OA in their area. Low uptake of OA was also signalled as a concern in the first year of local authority annual reports on CPOs (from 2011-2012). More recently, however, there have been signs that OA provision is developing and increasing in most areas.

4.92 Most initial OA activity across the four case study areas involved interventions aimed at improving employability and life skills, and was often provided via local council services or third sector organisations. Some of this allowed offenders to acquire certification in new skills (e.g. Construction Skills Certificate). In addition to this there was evidence, to a greater or lesser extent, that case study areas had been developing or experimenting with different types of programmes.

4.93 Area 2, for example, took its employability training a step further by offering offenders the opportunity to attain Scottish Qualification Authority (SQA) units and an employability award. Some of these individuals were then taken on in full time work with the Council, or secured other training and employment opportunities, after completing their sentence.

4.94 Another area (Area 1) launched an arts-based programme as a means for offenders to communicate their stories and to assist in their recovery.

"…an organisation came in and were doing a media education programme and they had I think about six or seven offenders working on this programme and they were producing small films. It was fabulous. …I went to see what they produced and they were buzzing. The service users were buzzing with what they had managed to do. The confidence that it had given them."
(Interview 4, UPW staff)

4.95 In case study area 4, an OA programme was developed around a garden at the workshop and involved offenders learning to grow vegetables, and preparing meals using those with the aim of developing employability and life skills.

4.96 There is also evidence of OA being used to provide more tailored services for women. Each of the case study areas had some form of programme tailored towards women, aimed at identifying and addressing issues related to offending behaviour, often through the development of skills such as cooking, computer skills, plastering, painting and decorating. Some of these services were being delivered in-house, while others were delivered in conjunction with third sector organisations.

4.97 Following a slow start, then, the use of OA appears to be gaining traction, and there was evidence of CJSW staff seeing its potential to deliver more than straightforward skills and employability training.

"I think it's a fantastic idea - the 'other activity' side of this […] The majority o' our clients have got other issues. They've got addiction problems, they've got lots o' like social problems, and I thought the other activities bit... […] training and skills, …didn't go far enough. […] It's taken us the whole time now to get to the point where we've got our heads round the other activities."
(Interview 77, CJSW)

"At first, I would say, it wasn't really being used, you know, when I first started in 2011, bearing in mind it was only eight months down the line since […] since the whole changeover. Now it's being used quite well."
(Interview 14, CJSW)

4.98 Significantly, the case study area in which the use of OA was most developed was one which was already delivering similar activities under the old CSOs (with agreement from the local judiciary). This meant that when CPOs with UPWOA were introduced, the area effectively had a head start, and - shortly after the reforms were introduced - was able to establish a service level agreement between the council's employment and training unit (ETU), criminal justice service and a national charity to deliver supported learning for the Council's employability award.

"…our view was if you educate people and get them a job, hopefully it'll stop them reoffending... It's better for the community in the long run. And that has then snowballed. Other people took it on, and then the CPOs got hold of it, and it's grown arms and legs."
(Interview 36, UPW staff)

Factors shaping the implementation and evolution of OA to date

4.99 Various factors - a lack of clear local guidance, inconsistent interpretation and implementation of OA by CJSW and UPW staff, further influences on practice such as an overlap between Supervision and OA or offender interest in undertaking OA - seem to have shaped the implementation and evolution of OA since the introduction of the reforms in early 2011. In this section we discuss each of these factors in more detail and also explore how OA is now developing.

Lack of clear local guidance

4.100 A lack of local guidance meant that some CJSW and UPW staff lacked a clear understanding about what OA consisted of or how it might be used. Although the NOS Practice Guidance on CPOs provides information about the maximum number of hours that can be done under OA, as well as some examples of the different possibilities for OA, it is relatively broad-brush and certainly not designed to be exhaustive. As a result, it is left very much to the case manager or UPW case manager to make decisions about the amount and type of OA an offender does.

4.101 In the survey of CJSW managers, 17 (out of 30) participants did not consider there to be any guidance available to CJSW staff in their area on assessing offenders' suitability for OA. The remaining 13 indicated that such guidance did exist in their area - typically involving staff being given training or guidance on how to assess offender suitability; guidelines drawn up by services and shared by teams.

'Staff have received training and guidance with regard to assessment of attendees suitability.' (Open-ended response to survey of CJSW managers)

4.102 While it was not felt that another national guidance document from the government was required, there was a sense from interviews that local authorities needed more time to develop their own local practice procedures around the implementation and delivery of OA.

"We've got guidance on everything and my heart would sink if we got another big guidance document on 'other activity'. I think it's something we've got to work on ourselves and I mean we have got it as part of the work plan for the unpaid work manager this year to develop that. So I'd like to see how that turns out first."
(Interview 55, CJSW)

Interpretation and implementation of OA

4.103 There is a great deal of flexibility in terms of how OA is used, meaning that it can be closely tailored to individual need. However, this flexibility has also meant that it has been interpreted and implemented inconsistently by CJSW and UPW staff in the case study areas.

4.104 Whether or not an offender received OA at all appeared to be partly dependent on how their case manager understood the UPWOA Requirement. For example, as one CJSW interviewee noted:

"Certain workers will credit engagement of addiction work, others won't."
(Interview 2, UPW staff)

4.105 There was also a broader lack of consistency in terms of understanding of how and when OA should be used. It was suggested that some CJSW staff viewed OA as an add-on that could be earned once offenders have engaged in some reparative work and shown a commitment to their UPW placement. Those offenders with a poor attendance record, performance or attitude would not, therefore, be granted the same opportunities. Other CJSW staff appeared to view OA as a way to 'get the hours down'(i.e. as a way to reduce the number of UPW hours the offender would be required to do); and/or as something offenders were entitled to.

4.106 Those CJSW staff who viewed OA as something that could be earned felt that the attitude of other CJSW who saw OA as something offenders were entitled to could lead to getting the balance wrong between the restorative and rehabilitative elements of the requirement.

"I think the way it is just now, people can look for ways to try and grab 30 hours out of the system. I'm more of a believer that people need to be doing the unpaid work part first, and […] providing reparation to the local community, and then if there's 'other activity' they can do based on their efforts at unpaid work, they can do it. Because it has backfired. We've had people turning up at [name of local college], learning, getting the qualifications, getting jobs, but their unpaid work has been really sticky."
(Interview 36, UPW staff)

4.107 CJSW staff reported that for joint orders there was potential crossover between OA and work carried out under the Supervision Requirement and a lack of clarity about what should count towards an individual's OA hours. For example, it might be agreed in the supervision action plan that an offender would attend drug counselling. One interviewee argued that this should count toward OA since it is something that the person would not be doing otherwise - "it's still a fine on their time". However, another view was that, in a joint order with UPWOA and Supervision, little use is made of OA since similar work could be carried out under the Supervision Requirement (and that OA was therefore more applicable to those on Level 1 orders where there is no Supervision Requirement). In this context, it was suggested by one CJSW interviewee that the NOS Practice Guidance on CPOs could be clearer about the types of work that can or should be carried out under OA or Supervision.

4.108 OA was also seen as a potential means of motivating offenders to attend services they might not otherwise have agreed to (e.g. alcohol counselling) due to the impact it would have on their UPW hours.

"I think if it wasn't for the fact that he knows that that's whittling down his hours of unpaid work, he wouldn't go otherwise. With this particular person, I doubt if he would go if I just made it part of the supervision action plan, there'd be an excuse or two. I think it's beneficial for him."
(Interview 14, CJSW)

Influences on practice

4.109 CJSW staff emphasised that the OA element is not necessarily suitable for all offenders and that individual motivation is key. Some offenders are just not interested in doing any OA but 'just want to put their head down' and get through their hours.

"Not everybody wants to do other activities. Some people just want to do their hours and that's fine and, and for some people, it's a challenge just getting them to do the [UPW] hours."
(Interview 35, CJSW)

4.110 It was also suggested that a strong relationship between an offender and their UPW supervisor could offer many of the same benefits as OA.

"Not everybody going through the order wants to do another activity. Although we do put it to them, they go, 'No. I'm no interested. I just want to go out in the vans'. Some o' the supervisors build up cracking relationships with the guys, and they can do more to a person's self-esteem and wellbeing than any course that we send them on."
(Interview 36, UPW staff)

4.111 CJSW staff noted, however, that offenders who may have initially resisted the idea of OA are sometimes more open to it at a later date. This of course relies on staff not giving up at the first try, and instead giving the offender a little time to think about it and follow up at a later point. There was a view that offenders were more receptive to OA at particular points during the order than others - and that speaking to someone about OA after they have done a few UPW shifts could be a good time:

4.112 "…what we're finding is that when someone comes out of court they're relieved to be out, they just want to get on with it and get home …and so 'other activity' is not best targeted at that stage. [….] However, what we're finding is that it's probably more reliable once someone's been out on a few shifts or days with unpaid work and … they've been out in the rain all day - a potentially …less appealing day of unpaid work - then working to consider 'other activities'."
(Interview 2, UPW staff)

4.113 It was also acknowledged that offenders are more likely to be receptive to OA if they can see the benefit to themselves, that it can be a way to improve their current situation by, for example, finding a job. CJSW and UPW staff reported that there was a degree of resistance from offenders to 'off the peg' activities such as adult literacy or brief interventions - often because they failed to see its relevance to their own situation and preferred straightforward work hours, which could be completed more quickly.

"We [do] get people at lunchtime saying, 'Oh, just remembered about a doctor's appointment', and they tail off because they don't want to do it, and that's probably the biggest challenge is getting people to do it. […] they're like, 'Oh, didn't get the letter', not turning up. So, there are major challenges with the other activity."
(Interview 85, UPW staff)

4.114 Other programmes that offenders might be motivated to attend were only run at certain times in the year. This meant that participation was limited to those whose sentence happened to fall within the times it ran.

"So we were running [an] outdoor centre which provided a six week pursuits [course], it's something that has supported people in problem solving skills. However that [only] ran five times over a year so it's just a bit of when did we finish the order? When did they come on the order? How quickly can we get them onto a programme?"
(Interview 2, UPW staff)

The way forward: How OA is developing

4.115 Provision of OA is clearly still evolving. In case study area 3, for example, the unpaid work team is in the process of developing a pathway into OA as part of the ongoing contact with every offender (while recognising that it will not be the choice for everyone). They also acknowledged that despite improvement in this area, there was still a lot more they could be doing.

"we have done, a few things, in relation to… [offenders] being referred to places that might support the recovery from substance misuse, some training in employment opportunities. But we've got a long, long way to go on the other activity front."
(Interview 55, CJSW)

4.116 Case study area 4 are currently in the process of planning and developing new modules for offenders that will enable them to get their ECDL (European Computer Driving Licence, or their CSCS (Construction Skill Certification Scheme) card required for working on construction sites alongside developing an integrated literacy programme.

4.117 Case study area 2 are in the process of developing, in collaboration with a third sector partner, a women's mentoring programme - this would involve training women on UPWOA as mentors who will then provide mentoring and support to other women who have been sentenced to UPWOA.

4.118 According to the NOS Practice Guidance on CPOs, OA must not exceed 30% of the specified hours of the requirement or 30 hours, whichever is lower (Scottish Government, 2011a). One case study area, which already had a wide range of OA options, suggested that having more flexibility over the proportion of OA hours would be useful. CJSW staff in this area reported that getting offenders into formal skills training at present can be a challenge because most full SQA units are about 30 hours. By the time an offender has been through their Health and Safety induction and, for example, completed a substance misuse module there is not enough time for them to do a full unit.

"…an SQA unit in working safely with others or communication is 30 or 40 hours, it would be helpful if we had the flexibility to allow somebody to do it within our setup. Because what we would really want is for them to be engaged in a learning environment…"
(Interview 35, CJSW)

Key points

4.119 The UPWOA Requirement is fundamental to the successful implementation of CPOs - not only because it is used with far greater frequency than any other requirement, but because it speaks to many of the core elements of the reforms as a whole. Through the combination of unpaid work - a disposal long familiar from Community Service Orders - with the new 'other activity' option, the requirement seeks to balance elements of punishment, reparation and rehabilitation.

4.120 For it to be judged to have done so effectively, the evaluation was looking for evidence of relevant, flexible and appropriate provision of UPW placements; improvements in the speed of commencement and completion; and a visible and credible connection with the local community.

4.121 There appears to be a reasonably wide range of UPW placement types available. All four case study areas were making similar use of group placements (in the form of both workshop and project groups). There was greater variation, however, in the availability and use of female only and individual placements.

4.122 Although CJSW staff in most areas indicated that they had struggled to cope with the initial increase in UPW placements following the introduction of the reforms, the situation now seems to have eased somewhat - in part, because of an expansion in the availability or use of individual placements. However, the 'supply' of such placements remains somewhat patchy and ad hoc.

4.123 Key challenges in terms of overall provision included competition for individual placement opportunities from other sources (such as large employers offering their staff the opportunity to volunteer); variation in the number and range of local organisations potentially able to offer placements; and funding constraints limiting the use of workshops or other resources.

4.124 Flexibility of provision is both a desirable and a necessary characteristic of UPW provision - desirable because of the aspiration to tailor disposals to individual needs and circumstances; necessary because of the often highly unstructured character of individual offenders' lives. Consequently, across the case study areas, UPW provision allowed offenders a degree of flexibility about when and how to complete their hours.

4.125 CJSW staff face a number of challenges in trying to assess suitability and match offenders to particular UPW opportunities. For example, it can be difficult to match the skills of an offender to the placements available; to find appropriate placements for those for whom English is not a first language or who have complex needs. Other challenges include the difficulty of finding suitable community placements for sex offenders.

4.126 There are also significant issues around the imposition of Level 1 orders in the absence of a CJSWR, in terms of the potential for both risks and needs to be missed and the potential for offenders to be given unsuitable placements. There was some evidence of the emergence of informal local arrangements to address these.

4.127 There is a widespread perception that UPW placements are commencing faster than in the past and that a large majority of local authorities, are meeting the target of commencement within seven days of the CPO being imposed.

4.128 Around one in five local authorities, however, are not meeting this target (commencement of UPW placements within seven days). Key challenges faced by CJSW and UPW staff in this respect include the often chaotic nature of offenders' lives or the need to coordinate UPW hours with those for a previous order; problems of communication between CJSW, UPW and court staff; and structural or organisational issues (e.g. allowing 'gaps' to emerge between induction and first placement).

4.129 There is also evidence that the emphasis on speed of commencement may be shaping the type of initial placements available and that matching to a more suitable placement to complete the rest of the order may sometimes be delayed.

4.130 In terms of speed of completion, the timescale for Level 1 orders (three months for up to 100 hours of UPW) was seen as unrealistic by many CJSW and UPW staff, although some felt that this relatively compressed time frame could actually be useful in keeping momentum going from the start to the finish and motivating staff to stay vigilant to ensure offenders got through their order.

4.131 Amongst other things, the OA element provides an opportunity to deliver varied work to help develop offenders' confidence and employability, and to deal with issues around addiction as well as more tailored work for women.

4.132 The OA element was slow to get off the ground. CJSW and UPW staff needed time to adjust to the new reforms as a whole, and to manage increased numbers on UPW, leaving little scope for a clear focus on OA. A lack of local guidance also meant that some CJSW and UPW staff lacked a clear understanding about what OA consisted of or how it might be used. There was also some initial resistance from CJSW staff who felt that OA might undermine the supervision plan in a combined order.

4.133 There is a great deal of flexibility in terms of how OA is used, meaning that it can be closely tailored to individual needs. However, this flexibility - and differing views and interpretations of how and when it should be used - has meant that OA use has varied within and across local authorities.