Consideration of equalities impacts

(1)

Consideration of equalities impacts

Rehabilitation Programme

November 2013

(2)

(3)

INTRODUCTION

Ministry of Justice and the public sector equality duty

Under the Equality Act 2010, when exercising its functions, the Ministry of Justice has an ongoing legal duty to pay ‘due regard’ to the need to:

 eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010;

 advance equality of opportunity between different groups of persons who share a protected characteristic and those who do not; and

 foster good relations between different groups.

The payment of ‘due regard’ needs to be considered in light of the nine protected characteristics:

 race  sexual orientation  marriage/civil partnership

 sex  religion or belief  gender reassignment

 disability  age  pregnancy/maternity

The potential equality implications of the Transforming Rehabilitation reforms have been considered regularly as the programme has developed. The public sector equality duty is an ongoing duty and the equality implications of design decisions affecting the reform programme continue to be kept under review.

Probation Trusts as public authorities under the Equality Act 2010

Probation Trusts are defined as public authorities for the purposes of the Equality Act 2010 and as such, they are also required to meet the public sector equality duty in respect of their functions.

In relation to the Transforming Rehabilitation reform programme, this will mean conducting a proportionate local assessment of potential equality implications arising from the implementation of the reforms.

Purpose of this document

This document has been produced to support Probation Trusts to conduct this local equality analysis. This summary of the national level analysis undertaken by the Ministry of Justice is provided for Trusts to review and adopt as they consider appropriate. Regional characteristics unique to a particular Trust may not have been explicitly recognised in this broader analysis and Trusts will want to take this into account as they undertake their own assessment of potential equality implications for their area.

Where clear implementation instructions have been set at the national level, there will be limited scope for Trusts to amend that process. However, it will still be important to consider and identify whether there are any equality implications unique to their area, and if so, whether there are processes within their own implementation plans

(5)

that allow for these particular impacts to be mitigated whilst ensuring the programme is implemented.

Trusts are invited to consider whether any local equality implications identified through their analysis needs to be captured as part of the Ministry of Justice’s ongoing equality analysis, for example because it stems from the overall national design. Trusts should consider contacting their local People Transition Service Human Resources hub lead in the first instance.

(6)

TRANSFORMING REHABILITATION REFORM PROGRAMME

The key objectives of the proposals set out in ”Transforming Rehabilitation – A Strategy for Reform” can be summarised as follows:

Reduce re-offending whilst continuing to protect the public through: A. Opening up rehabilitation services to a diverse market of providers,

embedding the VCSE sector and ensuring effective local partnerships;

B. Creating a national public probation service focused on public protection;

C. Extending rehabilitative support to the most prolific group of offenders;

D. Managing the flow of offenders from within prison, through the gate and into the community, reforming rehabilitation services and the designation of prisons to focus release into areas;

E. Use of payment by results to incentivise providers to reduce reoffending.

The Ministry of Justice has established the Rehabilitation Programme to deliver the reforms set out in “Transforming Rehabilitation – A Strategy for Reform” and to ensure that these key objectives are achieved.

This paper summarises our assessment of the main equality considerations associated with the planned reforms. This assessment has been informed by the outcome of public consultation and by ongoing review during the development of reform programme. The equality considerations have been presented in sections corresponding to each of the high level objectives set out above.

(7)

GATHERING EVIDENCE OF EQUALITY CONSIDERATIONS

THROUGH CONSULTATION

The Ministry of Justice published the consultation paper ‘Transforming Rehabilitation – a revolution in the way we manage offenders’1on 9 January 2013. This paper set out proposals aimed at reforming the delivery of offender services in the community to reduce reoffending rates whilst delivering improved value for money for the tax payer.

The consultation paper invited stakeholders to respond to two questions specifically focusing on the equalities impacts of the proposed reforms:

Question C17: How can we use this new commissioning model, including payment by results, to ensure better outcomes for female offenders and others with complex needs or protected characteristics?

Question C18: What are the likely impacts of our proposals on groups with protected characteristics? Please let us have any examples, case studies, research or other types of evidence to support your views.

The consultation exercise as a whole generated a total of 598 responses, with the majority of respondents providing answers to the equality questions. Appendix 1 provides an overview of the main responses to these particular questions taken from both written submissions and through stakeholder engagement events undertaken during the consultation process.

In addition to the questions set out in the initial consultation paper, we published a further questionnaire on the Ministry of Justice website, inviting additional views on potential equality considerations for offenders. The main themes emerging from this exercise are discussed at Appendix 2.

To support our assessment of potential equalities implications arising from the

Transforming Rehabilitation reforms, we have reviewed the data available to us on the prevalence of protected characteristics across the offender population and amongst staff employed by Probation Trusts. We acknowledge that the data set held centrally by the Ministry of Justice and the National Offender Management Service on the diversity profile of staff and offenders is not complete. This is mainly due to the way in which equality data is collected and reported to the centre. Improving data coverage for prisoners (and directly employed NOMS staff) is a published NOMS equality objective.2

We have undertaken additional research and analysis to improve our understanding of the equality and diversity profile of current Probation Trust staff and the offender population most likely to be affected by the Transforming Rehabilitation reforms. In September 2013, we commissioned a bespoke data collection exercise to gather staff equality and diversity data from Probation Trusts, issued through the NOMS

1

https://consult.justice.gov.uk/digital-communications/transforming-rehabilitation/results/transforming-rehabilitation-response.pdf

2

Source: National Offender Management Service Business Plan 2012-13

(8)

Data Gateway (collection reference DC0225). The provisional data generated by this exercise are attached at Appendix 3.

Data relating to the distribution of protected characteristics amongst the offender population are attached at Appendix 4.

Within the Transforming Rehabilitation programme, an Equality Working Group is tasked with ensuring that the potential equality implications of the reform programme are kept under review as the system design is finalised and the programme moves towards implementation.

(9)

OBJECTIVES OF THE TRANSFORMING REHABILITATION

REFORMS

Objective A: Opening up rehabilitation services to a diverse market of

providers, embedding the VCSE sector and ensuring effective local

partnerships.

Summary

Activity across the Rehabilitation Programme to deliver on this outcome includes developing the framework for a centrally managed programme of competitions to deliver probation service contracts within 21 contract package areas. In developing our approach to the competition, efforts have been made to engage providers from all sectors and to ensure that there is a genuine and sustainable role for small and medium private enterprises (SMEs) and local voluntary community and social enterprise (VCSE) sector organisations.

Under current delivery arrangements a significant proportion of the specialist support provided to offenders with protected characteristics serving sentences in the

community is delivered by local specialist VCSE providers, under contract to

Probation Trusts. There is a particularly prominent role for VCSE organisations in the provision of women-specific services.

Equality considerations

Some respondents to the ‘Transforming Rehabilitation’ consultation commented that in their view a central commissioning model combined with the geographic scale of the contract package areas could limit the extent to which local VCSE providers of services to women and other minority groups of offenders with shared protected characteristics will be able to participate in delivering services in the new system. The Secretary of State for Justice has set the clear objective that local and specialist SME and VCSE providers should be able to engage at all levels in delivering

rehabilitation services to offenders. For the Transforming Rehabilitation competition, we will require potential lead providers to demonstrate a genuine commitment to developing and maintaining a local supply chain. The documentation published at the launch of the competition on 19 September 2013 included our ‘Principles of

Competition’,3 Part 2 of which detailed the market stewardship principles that we intend to apply. These will be key to ensuring that lead providers develop sustainable and effective relationships with SME and local VCSE providers in their supply chain. As part of the competition process, bidders will be required to evidence how they will operate in accordance with these principles, with the successful bidders then

contractually obliged to meet this approach.

The Ministry of Justice is taking further steps to support small and local providers to participate in the competition. During the initial Pre-Qualification phase of the

competition, organisations interested in acting as a sub-contractor to one of the lead providers may register their interest with the Ministry of Justice. The intention is to create a database of Tier II and Tier III potential providers setting out the services

3

http://www.justice.gov.uk/downloads/rehab-prog/competition/moj-principles-of-competition.pdf

(10)

they provide and the geographical spread of those services. This information will be shared with those potential lead providers who pass the Pre-Qualification process, to provide visibility of the range of specialist providers and services available in the areas for which they are bidding.

The Ministry is also investing £500k between 2012 and 2014 to help build capacity across the VCSE to compete for future contracts. The pilot of the ‘Justice Data Lab’ is intended to help providers (and primarily those from the VCSE sector) to

demonstrate the impact and effectiveness of their services on the rehabilitation of offenders.

Combined these actions are geared towards ensuring that providers of specialist services have a sustainable role within the reformed system, so that the specific needs of offenders (including needs related to protected characteristics) can be appropriately addressed.

The initial consultation process and subsequent engagement with stakeholders highlighted the suggestion that lead providers may seek to develop a generic service to reduce costs, without differentiating for those with different needs to the

mainstream. In particular, the case has been made for increased specification of services for women offenders, with some stakeholders recommending specific commissioning arrangements for services for female offenders to guarantee that the particular needs of this group are addressed. In order to avoid adding costs,

disrupting services or limiting the application of payment by results incentives to reduce reoffending, we have decided that the most effective way of commissioning is by contract area, rather than offender cohort. Our intention to apply a payment mechanism that encourages providers to tailor rehabilitative services to the needs of the individual offender is discussed in a later section on payment by results.

We propose to use mechanisms such as the evaluation criteria for competition bids, the development of service specifications, and the contract management process to ensure that all potential providers demonstrate how they will avoid unlawful

discrimination in the delivery of services. As part of the initial Pre-Qualification phase of the competition, bidders seeking to progress to the next stage will need to provide satisfactory responses to questions reviewing their track record in relation to equality issues. The relevant section of the Pre-Qualification Questionnaire is attached as Appendix 5. Failure to meet the pass threshold for this section of the Questionnaire will prevent the bidder from participating in the next phase of the competition. Those bidders that proceed to the next phase of the competition will be required to answer further questions testing their proposed approach to meeting the public sector equality duty, and providing services that take into account the needs of particular offender groups. Commitments made at this stage in the competition will be established as contractual obligations for the successful bidders, and will be kept under review by NOMS contract managers. This approach is intended to ensure that prospective providers give due consideration to the particular needs of minority groups of offenders with shared protected characteristics and those with complex needs, as well as to encourage the provision of differential services.

In the specific case of women offenders, this is reinforced by our decision to amend the Offender Management Act through the Offender Rehabilitation Bill to introduce a requirement on the Secretary of State for Justice to ensure that contracts or

arrangements for delivering rehabilitation and supervision services must state what provision is intended to meet the particular needs of female offenders.

(11)

Responding to local needs and making the best use of effective local services is central to the aims of the Transforming Rehabilitation strategy. The commissioning process will be informed by engagement with co-commissioning partners at a national, Police and Crime Commissioner and local authority level. Contracts will be designed to respond to changing demands and priorities at local and national levels, new legislation and the wider commissioning context.

The Transforming Rehabilitation competition will require providers to evidence how they intend to sustain and develop local networks and partnerships, such as Integrated Offender Management arrangements. Where effective partnerships are already in place and are proving successful at reducing reoffending, it will be in the best interests of providers to nurture local partnerships and to facilitate offender engagement with rehabilitation services commissioned by other organisations. Local competition teams have been established to support engagement between the potential lead providers and local criminal justice system partners and other

stakeholders in their contract package area. A virtual data room has also been created for each of the contract package areas, containing information about the characteristics of the area and the services and priorities of other organisations working with offenders. The aim is to ensure potential providers are fully informed about the areas for which they are bidding and can design their operating model to complement existing services and partnerships.

(12)

Objective B: Creating a national public probation service focused on

public protection

Summary of activity

The respective roles of the National Probation Service and the Community Rehabilitation Companies are set out in detail in the ‘Target Operating Model’4 document, published alongside the competition documentation on 19 September 2013.

The new organisations will be established and will replace the current 35 Probation Trusts from 1 April 2014. Probation Trust staff will be assigned to a post within the new structure by the Transforming Rehabilitation People Transition Service in a process running from November 2013.

Staff currently engaged in offender management roles will be allocated to a post within the new structure primarily on the basis of an assessment of their recent caseload of offenders. Staff whose caseload includes a high proportion of offenders who represent a high risk of serious harm to the public or MAPPA registered cases are likely to be allocated to the National Probation Service, with the remaining staff transferring to posts within one of the Community Rehabilitation Companies. An allocation tool has been developed to facilitate this process, to ensure that these decisions are taken in an objective and transparent manner.

The allocation process will initially assess staff based on their experience and current role. The Ministry of Justice and Probation Association are working with the

Probation Trade Unions to establish provisions within the ‘National Agreement on Staff Transfer’ to ensure that the allocation tool ensures fair treatment for those currently on long-term absence from work (for example, through ill health or

maternity/paternity/adoption leave), and takes account of reasonable adjustments in place to support disabled employees. Once the initial allocations have been made, unfilled posts will then be assigned through a subsequent expression of interest process, and finally through an assessment against agreed criteria. An appeals process will be in place to support the assignment process.

Staff in post at the point of transition to the new system will be guaranteed a post within the new structure. A targeted programme of voluntary redundancies will be undertaken prior to the transition, but no staff will be made compulsorily redundant. It has also been agreed that staff transferring to posts within the new system will do so on the basis that their existing employment terms and conditions (including pension arrangements) will be protected.

Opening up some probation services to competition will necessarily result in a reduction in the scale of the public sector probation service. The remit of the new National Probation Service will necessarily require fewer staff in certain posts that exist under the current Trust structure as a large volume of work transfers to the Community Rehabilitation Companies.

This will particularly be the case in relation to corporate services, with the activities currently managed individually by 35 Probation Trusts transferring to Ministry of Justice Shared Services. All Probation Trusts staff engaged in corporate services roles at the point of transition will, as a general rule, transfer to the CRC. NOMS is

4

http://www.justice.gov.uk/downloads/rehab-prog/competition/target-operating-model.pdf

(13)

currently identifying what additional roles will be required within Corporate Services. Part of that work involves identifying the roles where it is absolutely essential that the incumbent has specific probation experience. It is envisaged that the small number of roles which require specific probation experience as an essential requirement will sit in the NPS and will be part of an operational support hub.

Following completion of the competition, the successful bidders will largely be free to determine the structure and resource requirements of the Community Rehabilitation Companies. They will need to comply with employment law and observe the terms and conditions under which Probation Trust staff transfer into the new organisations. In order to facilitate the effective delivery of probation services, we are working to ensure that the estates arrangement at the point of transition aligns with the service delivery model set out in the ‘Target Operating Model’ publication. Community Rehabilitation Companies and the National Probation Service will be expected to work collaboratively and it is very likely that this would often be facilitated by some co-location.

Properties for the National Probation Service and Community Rehabilitation

Companies will be provided initially from the existing Ministry of Justice estate, with properties selected from those currently being used by Probation Trusts. In the medium term, the National Probation Service and the Community Rehabilitation Companies may seek to revise their property arrangements and they will be required to undertake a process of engagement and consultation with staff on the effects of any new arrangements.

(14)

Objective C: Extending rehabilitative support to the most prolific group

of offenders

The provisions within the Offender Rehabilitation Bill to extend licence conditions and statutory supervision to offenders sentenced to less than 12 months in prison are intended to address the current anomaly that means some of the most highly prolific offenders currently do not qualify to receive any statutory post-release support.

Analysis of the under 12 month release prison population by protected characteristics

Our plans to apply licence conditions and statutory supervision for a period of at least 12 months for all offenders sentenced to custody will introduce new sentence

requirements and rehabilitation opportunities for offenders sentenced to less than 12 months in prison. All such short sentenced offenders (regardless of their personal characteristics) will be required to engage with a new set of services. Some groups of offenders with particular protected characteristics have higher representation within this group when compared against all offenders starting community sentences and all offenders released from prison. Drawing on prison release data for prisoners

released between January and December 20115 and offender management caseload

data for all offenders starting community sentences in 2011, we have identified the trends summarised below:

 There is a slightly higher representation of male offenders in the under 12 month prison sentence group compared to the wider group of all offenders (90% cf. 87%); and a corresponding lower representation of female

offenders in the under 12 month group (10% cf. 13%).

 There does not appear to be any significant variation in the distribution of different ethnic groups, religion or belief6, or age ranges amongst offenders sentenced to less than 12 months in comparison with the wider group of all offenders – see Appendix 4 for this data, and analysis of the distribution of protected characteristics amongst offenders and the general population.

Source: Offender Management Caseload Statistics (2011); Prison Release Data (2011)

5

Offender Management StatisticsQuarterly Bulletin October to December 2011, England and Wales, Ministry of Justice (April 2012) https://www.gov.uk/government/publications/offender-management-statistics-quarterly-earlier-editions

6

The available data for offenders starting community sentences does not include information in relation to religion. Our assessment is based on prison release data, with which we have compared the religion of those released from under 12 month sentences against all released prisoners.

Protected characteristics Proportion of under 12 month prison releases Proportion of all offenders (community

sentences and prison releases)

Representation in under 12 month prison release group,

compared to all offenders

Sex Male 90% 87% Higher representation

Female 10% 13% Lower representation

(15)

Providers will be required to offer ‘through the gate’ resettlement services (such as mentoring, accommodation support, financial advice, etc) to all offenders in custody before their release, as well as to deliver the requirements of each offender’s sentence or licence in the community.

Providers will need to be alert to the particular needs of different offender groups and ensure that appropriate support is available to help them understand and comply with the new sentence requirements on release from prison. Reasonable adjustments will continue to be required for offenders with learning and physical disabilities, to help remove the difficulties they may face in meeting the terms of their sentence and reduce the likelihood of breach (and therefore sanctions) for non-compliance. The competition will be designed to test bidders’ proposals for meeting the needs of disabled offenders.

Flexibility in applying the new sentence requirements will also be required for offenders whose childcare or other caring responsibilities may introduce barriers to complying with the terms of their sentence, such as limiting their ability to attend supervision appointments at certain times or locations. This will be particularly important in the case of women offenders, as the available evidence suggests that they are more likely to have primary caring responsibilities when compared with male offenders.7 With this in mind, and to give the new probation providers flexibility to do what works to reduce reoffending, there will be few specifications in relation to the delivery of the rehabilitative elements of the new licence and supervision period for short sentenced prisoners.

7

The Surveying Prisoner Crime Reduction Survey reported that 54% of prisoners have dependent children aged under 18 years old. However, 60% of female prisoners lived with their children before they entered custody, compared to 44% of male prisoners.

During their imprisonment c.75% of female prisoners reported their children lived with another family member and c.25% reported that their children now lived with their partner. Only around 3% reported that their children had been taken into care.

Conversely, around 90% of male prisoners reported that their children lived with their partner during their imprisonment, and around 11% lived with another family member (only 1% of male prisoners reported that their children had been taken into care). These differences in the living arrangements of prisoner’s children’s according to prisoner gender may reflect the fact that women were more likely to live on their own with dependent children than men. Between one third and half of female prisoners lived alone with their children (compared to fewer than 10% of male prisoners).

(16)

Objective D: Managing the flow of offenders from within prison, through the gate and into the community, reforming rehabilitation services and the designation of prisons to focus release into areas

The reforms introduce a new approach to managing the release and resettlement of prisoners into the community. This involves rationalising prisoner release patterns so that the vast majority of prisoners released into each contract package area spend at least the final period of their time in custody in a designated ‘resettlement prison’ where the through the gate service will be run by the same Community Rehabilitation Company that will manage them on release8. A network of 70 adult male local, training and open prisons have been identified as resettlement prisons9, with all of the women’s prisons within the estate also fulfilling this new function. Minimising the number of prisons in which each provider has to offer resettlement services is intended to strengthen the delivery of ‘through the gate’ services, increase efficiency and lead to improved rehabilitation outcomes for prisoners.

By identifying ‘resettlement prisons’ within (or in close proximity to) their home

contract package area, short term prisoners will be more likely to serve the entirety of the custodial element of their sentences nearer home. However, some offenders serving longer prison sentences could potentially be held in custody further from home, before returning to a resettlement prison closer to their home area for the final three months of their sentence.

The proposals take account of the uneven geographical distribution of the prison estate, meaning that in some cases there will be dedicated ‘resettlement prisons’ which are situated outside the geographical boundaries of the contract package area. This is unlikely to differ practically from current arrangements.

Each contract package area will have at least one adult male prison within its geographical boundaries and across the country we will aim to have at least 80% of offenders released from a resettlement prison designated to their home area. The majority of male offenders will therefore engage with their ‘home’ Community Rehabilitation Company in prison prior to their release, with this relationship continuing through the gate into the community.

Women represent only five percent of the prison population and as a result, there are currently only 12 women’s prisons within the estate. For the majority of the 21

contract package areas, it will not possible to designate a prison that releases female offenders solely to that area. As a result, there is an increased likelihood that female prisoners will be accommodated in and released from an establishment outside of their home area when compared with male prisoners.

In recognition that women offenders have particular needs and that the organisation of custodial services needs to reflect this, the Secretary of State for Justice

commissioned NOMS to conduct a review of the women’s estate. The terms of reference for the review were to make recommendations for improving the organisation of women’s prisons to ensure that the particular needs of women offenders can be met, and to deliver on the Transforming Rehabilitation plans for 8 http://www.justice.gov.uk/transforming-rehabilitation/resettlement-prisons 9 http://www.justice.gov.uk/downloads/rehab-prog/resettlement-prison-list.pdf

BILLS (13-14) 093A

(17)

improving resettlement. NOMS published the outcome of this review in October 2013.10

The review recommends the establishment of strategic prison hubs, located as far as possible close to major centres of population. These hubs should be of an

appropriate size to serve the courts, hold women from the surrounding region and provide a range of interventions. Moreover, they should provide an appropriate physical environment to support women’s caring responsibilities through family visits, which maintain and build upon relationships with children and other family members. These hubs will enable most women to remain in their closest prison throughout their sentence and support the Transforming Rehabilitation proposals for through the gate resettlement services delivered by Community Rehabilitation Companies, and increase opportunities to undertake work outside of prison which can be continued after their sentence.

To ensure that through the gate resettlement support is available to all female prisoners, all of the women’s prisons within the estate will be designated as

resettlement prisons. Work is underway to finalise the resettlement prisons operating model for women. Regardless of the comparatively small caseload of female

prisoners and the limited number of women’s prisons, one objective of this work is to ensure that female prisoners are able to access a through the gate resettlement service comparable to that available to male prisoners..

The ‘Target Operating Model’ document sets out proposals for ensuring responsive transition arrangements for young offenders serving Detention Training Orders who are aged 18 or over at the point of release. It is well understood that age alone does not dictate whether a young offender will be able to cope with the transition between the juvenile and adult criminal justice systems. Under the Transforming Rehabilitation reforms, the National Probation Service will continue to provide Probation Officers on secondment to Youth Offending Teams.

The National Probation Service and Youth Offending Teams will be responsible for deciding whether an offender aged 18 or over at the point of release should be managed in the community by the Youth Offending Team or transition to the adult system. This decision will be made locally, based on the needs of the young person. If the decision is made to transfer them to the adult system, the National Probation Service will work with the seconded Probation Officer within the Youth Offending Team to apply the case allocation system that will determine whether they should be managed by the National Probation Service or by their ‘home’ Community

Rehabilitation Company. 10 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252851/womens-custodial-estate-review.pdf

BILLS (13-14) 093A

(18)

Objective E: Use of payment by results to incentivise providers to reduce reoffending

The payment by results approach is intended to change the way in which services are commissioned, prioritising the delivery of outcomes over outputs or processes, and only rewarding in full those providers who successfully deliver the required outcomes. Through the proposals outlined in the Transforming Rehabilitation strategy, the aim is to incentivise the Community Rehabilitation Companies to focus on the needs of service users, and to encourage them to develop tailored services responding to individual need.

The Ministry of Justice published an indicative payment mechanism ‘straw man’ in May 2013 for discussion with the market. This included proposals for a payment mechanism combining ‘fee for service’ and ‘payment by results’ elements. A significant amount of feedback was received in response to this consultation, a summary of which has been published on the Ministry of Justice website.11 The payment mechanism is being developed further in light of the feedback received, with the aim of finalising this work by the conclusion of the Pre-Qualification phase of the competition.

Payment by results contracts introduce new incentives for service providers which are not present in solely ‘fee for service’ contracts. It is recognised that outcome-based success measures will encourage providers to consider how best to target their resources to help maximise their return.

We anticipate that under a payment by results framework geared towards reducing reoffending, providers will analyse their offender cohorts to inform decisions about resourcing and the targeting of services. Beyond the delivery of the sentence of the court, providers will have discretion over what additional rehabilitation support is offered and to whom – it is probable that there will be some groups of offenders that will attract higher levels of investment than others.

Our plans for the payment by results model are intended to limit the potential for particular groups of offenders to be marginalised. Building on the experience gained from the initial programme of payment by results pilots (which adopted a range of performance metrics), it is intended that the performance metric will reward providers who increase the proportion of offenders desisting from crime, whilst retaining an incentive to tackle the hardest to help. The proposed performance measure will take into account both the first reconviction and each subsequent reconviction during a 12 month monitoring period, with both factors influencing the level of any final outcome payments.

This combination of ‘binary’ and ‘frequency’ measures will offer the greatest rewards to the Community Rehabilitation Companies who divert offenders completely from crime, and also maintains an incentive for them to offer sustained support to offenders after their first and subsequent re-offence. This should encourage the Community Rehabilitation Companies to prioritise support for offender groups with high rates of reoffending, and deliver tailored services that take into account the individual requirements of offenders, including those with more complex needs. As we work to finalise the details of the payment mechanism, we will keep clearly in

11

http://www.justice.gov.uk/downloads/rehab-prog/competition/payment-mechanism-feedback.pdf

(19)

mind the need to give sufficient weight to the ‘frequency’ measure to ensure it provides a genuine incentive.

As discussed above, the performance metric is intended to encourage a focus on the needs of each individual offender. However, the Community Rehabilitation

Companies will have a degree of freedom to analyse their offender cohorts and target resources where they think they will have the greatest impact. This is an important feature in enabling the bidders participating in the competition to accept the financial risk inherent in payment by results contracts.

By making only a portion of the overall payment subject to payment by results and funding the delivery of the sentence of the court on a fee for service basis, we should ensure that the Community Rehabilitation Companies at a minimum deliver the order of the court for all low and medium risk offenders under their supervision.

Prior to any contracts being awarded, all potential providers will be required to demonstrate how the principles of fairness and equality of opportunity have informed their service delivery model, including by making appropriate services available to support groups of offenders with shared protected characteristics, in particular female offenders. Commitments made in their responses to the competition will then form contractual obligations that will be monitored by NOMS contract managers.

(20)

CONTINUING CONSIDERATION OF ‘TRANSFORMING

REHABILITATION’ EQUALITIES IMPLICATIONS

The Ministry of Justice has an ongoing duty to pay due regard to the equalities implications of its policy proposals and operations. This document summarises potential equalities issues that have been identified to date, and we will continue to consider and evaluate potential equalities issues as the Rehabilitation Programme proceeds towards implementation.

In support of this work, we will consider what further data will be required to support the ongoing identification and monitoring of equalities impacts and how this

information can be collected.

(21)

APPENDIX 1: SUMMARY OF POTENTIAL EQUALITIES

IMPLICATIONS HIGHLIGHTED BY RESPONSES TO THE

TRANSFORMING REHABILITATION CONSULTATION

The following was originally published in ‘Transforming Rehabilitation – Summary of Responses’12, a document released on the Ministry of Justice website alongside the Government response to the consultation:

Equality implications

We asked:

Question C17: How can we use this new commissioning model, including

payment by results, to ensure better outcomes for female offenders and others with complex needs or protected characteristics?

Question C18: What are the likely impacts of our proposals on groups with protected characteristics? Please let us have any examples, case studies, research or other types of evidence to support your views.

The main theme to emerge from these questions was a general observation that paying by results across a cohort of offenders would lead providers to develop homogenous services that fail to recognise the requirements of some offenders with complex needs or particular protected characteristics. Respondents generally expressed support for increased specification of services for some offenders and there were a number who suggested that services for women offenders especially should be subject to specific commissioning arrangements. We noted comments that offenders with complex needs often required intensive long term support, and the suggestion from some private sector responses that particular offenders should attract higher reward payments.

We intend to proceed with our plans for commissioning all rehabilitation services across geographical areas under a single contract, rather than competing services separately for different groups of offenders. This will be important for ensuring that we can minimise duplication and reduce costs across the system. We will use the commissioning and contract management process to ensure that the system responds to the recognised needs of offenders with particular protected

characteristics. In particular, we will expect providers to be able to articulate and respond to the needs of women offenders where these differ from men.

Trade Unions and professional associations raised concerns that the competition for probation services could lead to unequal treatment of certain groups within the current Probation workforce, especially for women and Black, Asian and Minority Ethnic (BAME) staff.

We are mindful that our plans have the potential to affect individuals and groups of staff differently across the existing Probation workforce. We will keep this under review and will seek to identify and mitigate any disproportionate impacts that arise for particular staff groups.

12

https://consult.justice.gov.uk/digital-communications/transforming-rehabilitation/results/transforming-rehabilitation-summary-responses.pdf

(22)

APPENDIX 2: SUMMARY OF THEMES EMERGING FROM

SURVEY INVITING VIEWS ON POTENTIAL EQUALITY

IMPLICATIONS FROM STAKEHOLDERS

As part of a broad programme of stakeholder engagement on the ‘Transforming Rehabilitation – a revolution in the way we manage offenders’ consultation paper, the Ministry of Justice issued a short online stakeholder questionnaire in June 2013. This exercise was primarily seeking views from organisations within the voluntary, community and social enterprise (VCSE) sector delivering offender services, although responses from a range of organisations were received. In recognition of the already extensive engagement activity with organisations working with female offenders, the aim was for the questionnaire to generate feedback from organisations working with minority groups of offenders other than women.

The questionnaire invited comments on the following three questions:

1. What is the one key challenge to reducing reoffending [amongst the group of offenders with whom you work]?

2. How can we ensure appropriate engagement with this group of offenders? 3. How can we integrate specialist provision with general offender

management services at a local level?

The questionnaire generated more than 60 completed responses. The majority of organisations who responded were from the VCSE sector, with a specific interest in the protected characteristics age, race and disability.

The main themes emerging from the responses to each question are summarised below.

Question 1: What is the one key challenge to reducing reoffending [amongst the group of offenders with whom you work]?

The most common point made in response to this question was that rehabilitation services needed to be flexible, with providers able to respond to the specific needs of each offender as an individual. Respondents also commented that it was essential that support was provided to ensure that any barriers preventing offenders from accessing or engaging with services could be overcome, particularly in the case of offenders with learning disabilities,

Other comments highlighted that increased cooperation and communication between public services providers is important for tackling social exclusion, and that shortages in housing and employment opportunities represented a major barrier to the

rehabilitation of offenders.

Question 2: How can we ensure appropriate engagement with this group of offenders?

Respondents stressed the importance of service user engagement in the design of rehabilitation services, reflecting that ‘user voice panels’ or similar representative groups could provide useful feedback on the effectiveness of services. The benefits

(23)

of engaging the families of offenders to strengthen links with individual offenders were also discussed.

There was support amongst respondents for ensuring that staff working with

offenders under the reformed probation system had prior experience of dealing with individuals with complex needs. The concept of ‘through the gate’ rehabilitation was endorsed, with a number of responses noting the advantages to be gained by extending engagement and support provided in prison into the community.

Question 3: How can we integrate specialist provision with general offender management services at a local level?

The main themes emerging from responses to this question were that VCSE sector organisations providing local and specialist services would need support to engage with the competition. Some respondents suggested that the Ministry of Justice could coordinate a central directory of services, or find other ways to promote and develop the role for VCSE sector providers. There were some responses that promoted the idea of requiring potential lead providers to commit to partnerships with smaller and local provider organisations as one of the conditions of participation in the

Transforming Rehabilitation competition.

Other respondents suggested that the Ministry of Justice should commit additional infrastructure investment to support smaller VCSE providers, and the suggestion was also made that there would be benefits in promoting the idea of specialist provider organisations co-locating with lead probation providers and other organisations delivering public services.

(24)

APPENDIX 3: DISTRIBUTION OF PROTECTED CHARACTERISTICS AMONGST PROBATION STAFF –

DATA GENERATED THROUGH DATA COLLECTION EXERCISE DC0225

Explanatory Notes

1. In August 2013, the NOMS Data Gateway authorised the Transforming Rehabilitation programme to undertake a data collection exercise

(DC0225) aimed at collating staff equality and diversity data held by Probation Trusts. The purpose of this exercise was to help improve the

available information about the diversity profile of current Probation Trust staff prior to the implementation of the Transforming Rehabilitation

reforms.

2. Each Probation Trust was asked to complete a spreadsheet, drawing on HR administrative data sources and staff survey returns to provide

headcount information against the following fields as at 30 June 2013, by staff grade (Bands 1 to 6 separately, and Bands A to D grouped):



Gender (‘Male’, ‘Female’);



Full time/Part time status for males and females separately (‘Full time male’, ‘Part time male’, ‘Full time female’, ‘Part time female’);



Ethnicity (‘White’, ‘Black’, ‘Asian’, ‘Mixed’, ‘Other including Chinese’, ‘Unknown’);



Disability (‘Disabled’, ‘Not Disabled’, ‘Unknown’);



Sexual Orientation (‘Heterosexual’, ‘LGB’, ‘Unknown’);



Religion ( ‘Christian’, ‘Buddhist’, ‘Hindu’, ‘Jewish’, ‘Muslim’, ‘Sikh’, ‘Other Religion’, ‘No Religion’, ‘Unknown’);



Age (‘<20’, ‘20-29’, ‘30-39’, ‘40-49’, ‘50-59’, ‘60+’).

3. The spreadsheet issued to staff contained a number of instructions for completion, including the following:



Responses were required to include all permanently employed staff and fixed term appointments of Band A or below (including the

Board Chair, but excluding casuals, zero hours, contractors/agency staff);



Returns were to include all staff on zero pay, career break, long-term sick leave or maternity/paternity/adoption leave;

(25)



Probation Trusts were reminded to provide headcount data (rather than ‘Full Time Equivalent’ information) and to take care to ensure

that individual staff members were only counted once in their return;



Staff on loan, secondment or working in Regional Offices were to be counted only by their parent Trust.

4. 31 of the 35 Probation Trusts submitted the requested information in the required form. The consolidated returns for each section of the

questionnaire are presented below. The vast majority of Trusts confirmed that their most recent staff survey data could not be separated by

staff grade, and so the information presented in the following tables only refers to records provided by Trusts from HR administrative

systems.

5. The Ministry of Justice has not made efforts to quality assure or seek independent verification of the information provided by the individual

Probation Trusts. The tables below suggest that Trusts do not collect or hold a uniform set of equality data for their staff – one Trust

confirmed that it did not hold data in relation to the sexual orientation or religion/belief of its staff.

6. For the reasons set out at points 4 and 5, the information provided below may be considered indicative of the distribution of protected

characteristics amongst Probation Trust staff at different grades, but should not be treated as a complete or final record.

7. Statistical validation of the data was undertaken. Where inconsistencies were found between totals and the sum of their parts, corrections

were made. Specifically, where figures listed for the BME grouping did not equal the sum of the subset ethnicity groups, it was determined

that the total of these subset groups, plus white plus unknown was equal to the overall total headcount, while white plus BME plus unknown

did not equal the overall total headcount. Therefore it was determined the BME subtotals were not corrected, and were amended to equal

the sum of the subset parts as collected (namely Black, Mixed, Asian and Other including Chinese). Similarly the overall totals of sexual

orientation and religion or belief came to less than the overall total headcount. For this reason it was determined that there were some

unrecorded individuals who had not been listed under unknown. Unknown values were amended to include these unrecorded individuals,

thus making the totals equal the overall total headcount without changing the declaration figures for these protected characteristics.

(26)

GENDER

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

All Staff

₃₀₃

₂₄₃

_1,372

_5,348

_5,679

_2,898

₂₉₀

16,133

Male

₁₄₂

₁₀₇

₅₀₀

_1,593

_1,969

₅₁₇

₉₉

_4,927

% of known

46.9%

44.0%

36.4%

29.8%

34.7%

17.8%

34.1%

30.5%

Female

₁₆₁

₁₃₆

₈₇₂

_3,755

_3,710

_2,381

₁₉₁

_11,206

% of known

53.1%

56.0%

63.6%

70.2%

65.3%

82.2%

65.9%

69.5%

FULL TIME/PART TIME STATUS BY GENDER

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

All Staff

₃₀₃

₂₄₃

_1,372

_5,353

_5,679

_2,898

₂₉₀

_16,138

FT Male

122

94

443 1,329

1,406

351

44 3,789

% of known

40.3%

38.7%

32.3%

24.8%

12.1%

15.2%

23.5%

PT Male

₁₄

₉

₄₁

₁₄₉

₃₈₃

₆₄

₂₅

₆₈₅

% of known

_4.6%

_3.7%

_3.0%

_2.8%

_6.7%

_2.2%

_8.6%

_4.2%

FT Female

₁₅₂

₁₁₅

₆₈₂

_2,670

_2,795

_1,500

₁₀₆

_8,020

% of known

50.2%

47.3%

49.7%

49.9%

49.2%

51.8%

36.6%

49.7%

PT Female

₁₅

₂₅

₂₀₆

_1,205

_1,095

₉₈₃

₁₁₅

_3,644

% of known

5.0%

10.3%

15.0%

22.5%

19.3%

33.9%

39.7%

22.6%

BILLS (13-14) 093A

(27)

AGE

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

₃₀₃

₂₄₃

_1,372

_5,350

_5,679

_2,898

₂₉₀

_16,135

<20

₀

₁

₇

₁₉

₂₇

% of known

0.0%

0.2%

6.6%

0.2%

20-29

₀

₂

₁₈

₃₇₃

₆₄₂

₄₈₇

₅₆

_1,578

% of known

0.0%

0.8%

1.3%

7.0%

11.3%

16.8%

19.3%

9.8%

30-39

₁₆

₃₈

₃₀₇

_1,992

_1,416

₆₄₂

₅₃

_4,464

% of known

_5.3%

_15.6%

_22.4%

_37.2%

_24.9%

_22.2%

_18.3%

27.7%

40-49

106

89

432 1,405

1,550

764

48 4,394

% of known

_35.0%

_36.6%

_31.5%

_26.3%

_27.3%

_26.4%

_16.6%

27.2%

50-59

₁₅₂

₈₆

₅₁₁

_1,234

_1,562

₇₂₈

₇₁

_4,344

% of known

50.2%

35.4%

37.2%

23.1%

27.5%

25.1%

24.5%

26.9%

60+

₂₉

₂₈

₁₀₄

₃₄₆

₅₀₈

₂₇₀

₄₃

_1,328

% of known

9.6%

11.5%

7.6%

6.5%

8.9%

9.3%

14.8%

8.2%

BILLS (13-14) 093A

(28)

ETHNICITY

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

303

243 1,372

5,348

5,679

2,898

290 16,133

White

265

218 1,199

4,419

4,836

2,383

252 13,572

% of known

90.4%

92.0%

88.9%

86.3%

87.9%

85.8%

91.3%

87.3%

BME - Total

28

19

149

704

663

396

24 1,983

% of known

9.6%

8.0%

11.1%

13.7%

12.1%

14.2%

8.7%

12.7%

BME – Black

12

73

411

375

216

14 1,113

% of known

4.1%

5.1%

5.4%

8.0%

6.8%

7.8%

5.1%

7.2%

BME – Asian

10

3

36

162

159

116

6

492 % of known

3.4%

1.3%

2.7%

3.2%

2.9%

4.2%

2.2%

3.2%

BME – Mixed

4

2

30

100

92

49

2

279 % of known

1.4%

0.8%

2.2%

2.0%

1.7%

1.8%

0.7%

1.8%

BME – Other,

inc. Chinese

2

10

31

37

15

2

99 % of known

0.7%

0.8%

0.7%

0.6%

0.7%

0.5%

0.7%

0.6%

Unknown

10

6

24

225

180

119

14

578 % Unknown

3.30%

2.47%

1.75%

4.21%

3.17%

4.11%

4.83%

3.6%

Percentages for declared categories are the percentage of total declared, excluding unknown.

Percentage of unknown is an indication of the certainty with which representation of known can be generalised to the population.

(29)

DISABILITY

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

303

243 1372

5348

5679

2898

290 16,133

Not Disabled

241

192 1005

3508

4144

2103

228 11,421

% of known

90.60%

88.89%

85.17%

81.79%

84.11%

86.69%

88.72%

84.2%

Disabled

25

24

175

781

783

323

29 2,140

% of known

9.40%

11.11%

14.83%

18.21%

15.89%

13.31%

11.28%

15.8%

Unknown

37

27

192 1059

752

472

33 2,572

% Unknown

12.21%

11.11%

13.99%

19.80%

13.24%

16.29%

11.38%

15.9%

Percentages for declared categories are the percentage of total declared, excluding unknown.

Percentage of unknown is an indication of the certainty with which representation of known can be generalised to the population.

SEXUAL ORIENTATION

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

303

243 1372

5348

5679

2898

290 16,133

Heterosexual

175

119

701 2151

2830

1503

166 7,645

% of known

-

Lesbian,

4

6

34

110

99

33

3

289 Gay or

Bisexual

% of known

-

Unknown

124

118

637 3087

2750

1362

121 8,199

% Unknown

40.92%

48.56%

46.43%

57.72%

48.42%

47.00%

41.72%

50.82%

No percentages calculated for declared categories as declaration rate is insufficient for these to have any meaning. As less than 60% of staff have declared their sexual

orientation, figures for representation of LGB or heterosexual staff have no validity.

(30)

RELIGION/BELIEF

Bands A-D

Band 6

Band 5

Band 4

Band 3

Band 2

Band 1

Total

303

243 1,372

5,348

5,679

2,898

290 16,133

Christian

88

71

411 1,196

1,740

959

90 4,555

% of known

-

Buddhist

2

4

16

14

7

0

45 % of known

-

Hindu

1

2

4

13

17

0

50 % of known

-

Jewish

1

2

6

12

9

6

0

36 % of known

-

Muslim

2

0

8

56

64

43

4

177 % of known

-

Sikh

2

0

11

10

21

9

1

54 % of known

-

Other

2

3

29

102

169

91

7

403 % of known

-

No religion

53

47

255

876

904

459

54 2,648

% of known

-

Unknown

152

116

644 3067

2745

1307

134 8,165

% Unknown

50.17%

47.74%

46.94%

57.35%

48.34%

45.10%

46.21%

50.61%

No percentages calculated for declared categories as declaration rate is insufficient for these to have any meaning. As less than 60% of staff have declared their religion or

belief, figures for specific religion or belief representation of staff have no validity.

(31)

APPENDIX 4: ANALYSIS OF THE OFFENDER POPULATION

BY PROTECTED CHARACTERISTICS

Of the proposals set out in Transforming Rehabilitation, all offenders starting a community sentence and all offenders released from prison could potentially be affected by the proposals to open up rehabilitation services to a diverse market of providers and to introduce payment by results. Whilst these reforms will introduce a requirement on all offenders (regardless of their personal characteristics) to engage with a new set of services, some groups of offenders with protected characteristics are more frequently represented within this group when compared against the general population. Drawing on offender management caseload data for all offenders starting community sentences13 in 2011, prison release data for all prisoners released between January and December 201114, and 2011 Census data for a general population comparison, we have identified the trends summarised in the table below:

Source: Offender Management Caseload Statistics (2011); Census (2011); Prison Release Data (2011)

Data on the disability or marital status of offenders is not collected in a manner that supports comparison between offenders starting community sentences and offenders released from prison with the general population. The Offender Management

Community Cohort Study included self-report survey data on disability and marital status from a sample of offenders on community orders.16 Using this data, the

13

Community sentences include community orders and suspended sentence orders

14

‘Offender Management StatisticsQuarterly Bulletin October to December 2011, England and Wales, Ministry of Justice (April 2012) https://www.gov.uk/government/publications/offender-management-statistics-quarterly-earlier-editions

15_{The prison release data contributing to the ‘all offenders’ group is based on data referring to both adult}

and young offenders. (The community sentence data is based solely on adult offenders). In determining the sex and ethnicity profile of the ‘all offenders’ group and the ‘general population’ comparison group, it was not possible to identify and exclude individuals aged under 18 years old.

16_{The Offender Management Community Cohort Study (OMCCS) is a longitudinal study which tracks a}

cohort of adult offenders who commenced a community order between October 2009 and December 2010. The findings presented are based on the OMCCS survey; a total of 2,919 interviews were

Protected characteristic Proportion of all offenders15 Proportion in general population Representation

amongst all offenders, in comparison with general population

Sex Male 87% 49% Higher representation

Female 13% 51% Lower representation

Age 18-20 14% 5% Higher representation

21-24 19% 7% Higher representation 25-29 19% 9% Higher representation 30-39 26% 17% Higher representation 40-49 16% 19% Lower representation 50-59 5% 15% Lower representation 60+ 1% 29% Lower representation

Ethnicity White 81% 86% Lower representation

BME 19% 14% Higher representation

Consideration of equalities impacts