Publication - Advice and guidance

Community Payback Order: practice guidance

Published: 25 Jan 2019

This updated guidance replaces 'National outcomes and standards for social work services in the criminal justice system: community payback order practice guidance' issued in 2010.

160 page PDF

1.3 MB

160 page PDF

1.3 MB

Contents
Community Payback Order: practice guidance
22. Unpaid Work or Other Activity Requirement

160 page PDF

1.3 MB

22. Unpaid Work or Other Activity Requirement

22.1 Introduction

This section of the guidance, which focuses on the unpaid work or other activity requirement of a Community Payback Order (CPO) should be read in conjunction with the rest of this practice guidance and the Justice Social Work Outcomes, Objectives and Principles (JSWOOP).

The 1995 Act refers to "unpaid work or other activity". At the point of sentence the court may impose an unpaid work or other activity requirement as part of a CPO. It is the responsibility of Justice Social Work (JSW) staff following sentence to identify and arrange, after consultation with the individual, the nature of the other activity to be undertaken, if appropriate. In some cases it may be that no "other activity" is deemed suitable and in this case the unpaid work case manager may decide that the CPO will consist solely of unpaid work.

For the purposes of this section, the unpaid work or other activity will be referred to as "unpaid work".

22.2 Integration with other Social Work services- Roles and Responsibilities

Every unpaid work scheme requires a staff team with a relevant mix of appropriate skills and experience.

Unpaid work schemes should be planned and organised as an integral part of local authority social work services in the justice system. In reaching a view about how such integration is to be achieved, account should be taken of the activities appropriate to unpaid work. When a Criminal Justice Social Work Report (CJSWR) is being compiled it is the author's responsibility to consult with the unpaid work staff as to the individual's suitability to undertake unpaid work.

The roles and responsibilities of the staff groups are outlined in Section 4 of this guidance.

22.3 Objectives

Reparation provides people with a constructive means to repair harm caused by their involvement in offending. It involves 'making good' to the victim and/or the community via engagement in rehabilitative work aimed at preventing further harm being caused, or via unpaid work, or a combination of both. Reparation via unpaid work supports the strengthening of relationships with others in the community, improves employability where appropriate, and supports the development of a new pro-social identity. The nature of the unpaid work should therefore be purposeful, have clear tangible benefits to the community and be meaningful to the individual.

The main objectives of an unpaid work requirement as part of a CPO are:

  • to provide courts with a community based penalty which has the potential to achieve a positive outcome in respect of the individual's likelihood of reoffending;
  • to ensure that courts have access at all times to a community sentence for use as a first response which requires the individual to undertake unpaid work for a specified number of hours in the community;
  • to provide a high quality community based intervention which balances pay back to the community with opportunities for individuals to address their offending behaviour whilst supporting them towards positive change; and
  • to provide individuals with an opportunity to gain the skills and access the supports required to lead positive lives and desist from offending.

22.4 Key Features of Unpaid Work

Key aspects of the requirement include:

  • Offering courts a disposal for use as a first response and for use with those who have defaulted on payment of a fine.
  • Individuals must be aged 16 or above before this requirement can be made.
  • Where a court imposes a CPO on an individual aged 16 or 17, the order must also contain an offender supervision requirement, in addition to any other requirements. An unpaid work requirement imposed on a 16 or 17 year old will therefore be accompanied by an offender supervision requirement.
  • There are two categories of an unpaid work requirement:
    • a level 1 requirement specifies a period of between 20 and 100 hours of unpaid work
    • a level 2 requirement of between 101 and 300 hours of unpaid work
  • The legislation provides for the responsible officer[18] and/or unpaid work case manager to exercise a degree of discretion in determining whether other activities should be undertaken and in determining the nature of the unpaid work or other activity.
  • The total number of specified hours on multiple orders cannot exceed 300.
  • Local authorities have a statutory responsibility, each year, to consult community organisations, (which should include victims' organisations), about the nature of unpaid work to be undertaken by individuals subject to CPOs who are living in the local authority area. Local authorities should publicise good examples of completed work so that their communities know more about the reparative work being carried out by individuals locally.

Level 1 Unpaid Work or Other Activity Requirement (common elements)

  • The individual does not require to have been convicted of an offence which is punishable by imprisonment (in contrast to level 2 and most other CPO requirements).
  • Requires the consent of the individual (apart from where a CPO is imposed under section 227M(2) of the 1995 Act).
  • Must not exceed 100 hours.
  • Up to 30% of a level 1 unpaid work requirement (or 30 hours whichever is the lower) can consist of activity other than unpaid work. The unpaid work manager is responsible for deciding on the nature and extent (if any) of the 'other activity' element.
  • The specified number of hours requires to be completed within 3 months unless a longer period is specified by the court when imposing sentence.
  • A level 1 unpaid work requirement can be imposed by a Justice of the Peace court.
  • A report is not required if the CPO will contain only a level 1 unpaid work or other activity requirement.

Level 1: when used with an individual who has defaulted on a fine or an instalment of a fine

  • The consent of the individual is not required.
  • Where a court (sheriff or Justice of the Peace) is dealing with those defaulting on fines (or instalments of fines) not exceeding level 2 on the standard scale of fines (see section 225 of the 1995 Act) (£500 as at December 2018), the court must, instead of imprisonment, impose a CPO with a level 1 unpaid work or other activity requirement.
  • The individual has the opportunity to pay back all of the outstanding balance at any point - in which event the court will discharge the requirement and notify the relevant justice team.
  • Local arrangements will require to be agreed between the courts and JSW staff and adhered to, in order that when an outstanding amount is paid in full, the unpaid work team are notified without delay.
  • Where the original fine or outstanding amount exceeds level 2 on the standard scale of fines (see section 225 of the 1995 Act) (£500 as at December 2018), the court may, instead of imprisonment, impose a CPO with a level 1 unpaid work or other activity requirement.
  • No report will be required prior to a court imposing a level 1 unpaid work requirement on the individual.
  • Where the individual is aged 16 or 17 years old a period of supervision not exceeding 3 months will be imposed. It is recognised this supervision will be for the purposes of supporting the young person to complete their order, but can also be used to offer any other advice and guidance as sought.
  • Where an individual with a CPO for fine default breaches that CPO and the court revokes the CPO under section 227ZC(8) of the 1995 Act, imposing a custodial sentence instead, the original fine for which the CPO was imposed is discharged.

Level 2 Unpaid Work or other Activity Requirement

  • Must not exceed 300 hours;
  • The individual requires to have been convicted of an offence which is punishable by imprisonment;
  • Requires the consent of the individual;
  • Specified number of hours require to be completed within 6 months unless a longer period is specified by the court at the point of sentence;
  • A level 2 unpaid work requirement cannot be imposed by a Justice of the Peace court;
  • Up to 30% of a level 2 unpaid work requirement (or 30 hours, whichever is the lower) can consist of activity other than unpaid work.

Key Guiding Principles

Achievement of the objectives set out in section 22.3 above and against the legislative framework requires regard to be paid to the following key guiding principles:

  • Purpose
  • Immediacy
  • Safety
  • Speed
  • Visibility
  • Equal Opportunities
  • Compliance

Purpose

A CPO with an unpaid work requirement is a punishment and ensures that the individual pays back to their community through their work. The work undertaken, as well as being reparative, should be of clear tangible benefit to the local community. Payback may involve requiring the individual to take responsibility for their own behaviour by spending time, through the "other activity" component of the requirement, on developing their interpersonal, educational, and vocational skills to support long-term desistance from offending. In the case of concurrent CPOs, decision making with regard to the specific focus, nature and duration of the other activity is the responsibility of the responsible officer[19].

CPO unpaid work placements should not be used in situations which are likely to deprive others of opportunities for paid employment. Nor should they displace opportunities for paid employment for the individual subject to the order.

Immediacy

Wherever possible, the individual should not leave the court premises without first being given a copy of the order by a member of the court social work team. Where in exceptional circumstances it is not possible for this to take place on the same day of sentence within the court, or at the office of the court social work team, the individual should be required to attend an initial appointment the next working day. This instruction should be attached to the CJSWR where one has been prepared. In addition to the individual signing the order, this initial appointment will provide an opportunity for the requirements of the order and the reporting arrangements for induction to be reinforced. Further information should be recorded indicating health and other relevant issues, availability for unpaid work etc. as detailed in post sentence interview (see Annex 1).

It is important that the work placement commences as quickly as possible after the CPO has been imposed, ideally on the same working day or within 24 hours. The placement should in any event begin within 7 working days of the imposition of the CPO to ensure that the individual's motivation is maintained and a strong link established between the decision of the court and the start of unpaid work.

Where the CPO consists of an unpaid work requirement on its own, the allocated responsible officer (the unpaid work case manager in these circumstances) should arrange to meet with the individual within 10 working days of the order being imposed by the court, if this does not occur at the post sentence interview stage. The allocation of the responsible officer and the arranging of the meeting should not delay the commencement of the order. The purpose of the interview with the responsible officer is to discuss initial progress on the placement including any issues which have arisen during the first 10 days, and to discuss and agree the "other activity" component of the requirement.

Examples of good practice which can support immediacy are:

  • Making an arrangement with the Sheriff Courts and the Justice of the Peace Courts that where a CPO is imposed, the sentencer informs the individual that they should report to the social work offices immediately for interview (or within 24 hours depending on the time of day that the CPO is imposed). This is supported by a letter with reporting instructions attached to the CJSWR where one has been prepared.
  • Arranging for a social worker or social work assistant to be in court to engage with the individual immediately following sentencing. Where an unpaid work requirement has been imposed, the individual is directed to attend the unpaid work service the same day, or the following day for induction.
  • Where a Level 1 CPO has been imposed without a CJSWR having been prepared, the individual may not be aware of the need to engage with court based social work staff or attend the social work office. Therefore a system should be in place to quickly identify the social work office for the individual, and enable the individual to make contact within 24 hours. Another induction day can then be offered within the 7 day timeframe.

Safety

To ensure that an individual has the optimum chance of completing their unpaid work safely, an induction programme should be undertaken within 5 working days of the imposition of the CPO. This highlights and reinforces the individual's and the local authority's responsibilities for Health and Safety procedures (see Annex 10).

Any work teams or individual placements must meet the requirements of health and safety regulations and have regard to the additional social, personal and health needs of individuals. The principal considerations in determining the suitability of an individual to undertake a specific placement must however be their physical safety and that of any person residing at, or working in the location of the placement, including the unpaid work supervisor in group placements.

The CJSWR will always include an assessment of risk of reoffending and harm but further assessment requires to be carried out once an order has been made, taking into account the capabilities of the individual and any barriers to successful completion of unpaid work. This process must commence at the post sentence interview and should be ongoing throughout the order.

If an individual is assessed as presenting a risk of serious harm, appropriate departmental protocols and policies must be adhered to. For example, the unpaid work case manager must contribute any relevant information pertaining to risk to the multi-agency public protection arrangements (MAPPA) where the individual meets the criteria for such arrangements. Special consideration with regard to appropriate placements is required for those who present a risk to others and for those who may attract high profile media attention. The MAPPA process exists to ensure consistent risk management practice across organisations and improved case management where individuals present a risk of serious harm and local authorities have a key role in this process.

JSW staff should not assume that activities requiring health and safety training (such as use of graffiti cleaning equipment) are unsuitable for unpaid work placements. Such training can provide an opportunity rather than an obstacle. It can demonstrate the benefit of a placement both to the community and to the individual.

Speed

It is important that an unpaid work requirement is completed within the shortest possible timescale without prejudicing an individual's employment or entitlement to benefits. A focused period of activity for the individual will ensure that the link between the conviction and the penalty is maintained.

Completion should normally be achieved within:

  • 3 months (or such longer period as the court determines) for level 1 requirements;
  • 6 months (or such longer period as the court determines) for level 2 requirements.

This may present particular challenges where there are multiple requirements and/or a high number of specified hours, or in the event that the individual is in employment or has other important commitments (e.g. carer responsibilities). It is important in such circumstances that CJSWR authors make the court aware of individual circumstances in their report to allow the sentencer to decide whether a longer period for completion should be set. CJSWR authors should offer a view on how many hours per week appear achievable, taking into account any complex needs or responsivity considerations and regular commitments that the individual may have, particularly those likely to promote desistance from offending. Any regular or ongoing difficulties in relation to completion targets regularly being set which would appear to be unachievable should be addressed by JSW during their regular engagement with the Judiciary (see Section 14 of this guidance).

Visibility

Please refer to Section 21 of this guidance.

22.5 Operational Arrangements

22.5.1 Pre-sentence

Where a CJSWR has been requested, there must be consultation between the CJSWR author and colleagues in the unpaid work team to assess suitability and to ensure appropriate targeting.

Where an individual is entitled to certain benefits which reflect that their health is such that they cannot undertake any paid employment, the individual 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 unpaid work is imposed despite the individual being subject to a benefit which indicates that they are unfit for work (e.g. where a CJSWR was not requested prior to imposition of a Level 1 requirement), it is the responsibility of the responsible officer (the unpaid work case manager in these circumstances) 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 responsible officer concludes that there is not, they 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.

During interview, CJSWR authors will require to be mindful of circumstances in which individuals have stated that they are unfit for work, but they are not in receipt of benefits which would evidence this. For example, benefits may have been withdrawn and the individual has appealed against the decision. In such circumstances, evidence of appellant status may be produced pending the decision.

Where agreed with the individual and where practicable, contact should be made (prior to the court appearance) with the individual's GP to ascertain the individual's suitability for unpaid work. This will require a medical mandate (see Annex 2) to be explained to, and signed by, the individual. In such circumstances, the medical mandate must be explained fully to the individual and only information pertinent to the individual being able to undertake unpaid work should be sought. The individual's suitability should also be discussed with an unpaid work case manager to ensure that appropriate "light work" can be provided where appropriate. It is entirely reasonable to request a deferment to ensure that such information is available at the point of sentence.

The CJSWR author has responsibility for consulting with unpaid work colleagues as to the suitability of an individual to undertake unpaid work. The CJSWR author will, where such a report has been requested, be responsible for explaining to the individual what an unpaid work requirement will entail so that the individual can give informed consent to the making of an unpaid work requirement, should this be the decision of the court. To assist this process, unpaid work schemes should provide CJSWR authors on an ongoing basis with information which explains the nature of the requirement and what is expected of individuals.

Where an individual is in employment (or has other commitments which the court may consider it to be important to support), a view should also be provided by the CJSWR author in the CJSWR for consideration by the court as to the length of time anticipated being required for completion of an order. Individuals must provide proof of their employment (e.g. a current payslip, a letter from the employer), or agree to contact by the CJSWR author with their employer for confirmation of their employment status. Where an individual is self-employed, a self-employed self-assessment tax number should be provided.

Where, as part of a CJSWR, a CPO is considered a possible sentencing option, details of reporting instructions should be attached and/or form part of the report to support immediacy. This will assist with fulfilling the need for the individual to be seen within one working day of imposition of the order. An example of good practice may be for the individual to sign an agreement at the CJSWR stage to attend for interview at an agreed time within the set timescales. Consideration can then be given if the individual fails to attend, as to the appropriate action in respect of disciplinary matters.

22.5.2 Post sentence interview

Reference should also be made to Section 9 of this guidance.

An initial post sentence interview should take place on the same day as sentence or, if this is not possible, the next working day. At this meeting JSW staff must explain to the individual in detail, the nature of the various requirements of the CPO and check that the individual understands their obligations, rights and responsibilities. In line with good practice, the individual must sign and date two copies of the order to signify that they understand and accept the order. A copy must be retained in the department's records.

During this interview:

  • The individual should be made aware of the powers of the court in the event of it having been proved that the individual has not complied with any of the requirements of the CPO without reasonable cause.
  • The individual should be advised that should they commit an offence at a placement attended during the course of their order or against a member of JSW staff, a court will take into account that it was committed by the individual as part of a CPO when sentencing the individual for that offence.
  • Where the individual agrees that they would benefit from individual learning (for example, in relation to literacy or numeracy), this should be offered to support community reintegration. However, should the individual not wish to pursue such work, this should not be deemed an occurrence leading to disciplinary measures.

In addition, the post sentence interview, and the form completed at post sentence interview (see Annex 1) provides opportunity for an assessment to be carried out of work placement suitability, and the risk the individual poses in such a placement against the backdrop of the risk assessment completed at CJSWR stage. The other activities referred to may include literacy assessment, developing employment skills, support for parenting skills, attending college or addressing other needs which would promote desistance from offending as relevant to the individual.

Where there is any doubt about the court's intention in relation to whether the hours specified in an unpaid work requirement are deemed by the court to run consecutively or concurrently with any existing unpaid work requirements, clarification should be sought from the Sheriff Clerk's office.

As noted above, the work placement should commence as quickly as possible after the CPO has been imposed - ideally on the same working day or within 24 hours. The placement should in any event begin within 7 working days of the imposition of the order.

To achieve this, when a CPO has been imposed containing an unpaid work requirement, arrangements should be made for the individual to begin the induction process, which will include a Health and Safety Induction, as quickly as possible, and in any event within 5 working days of the order being made. Health and Safety must be covered by the minimum standards of the local authority's Health and Safety policy. A model of good practice in Health and Safety is set out in Annex 10. When the Health and Safety Induction has been completed, this should be signed by the individual and recorded as per the local authority's policy. Health and Safety Induction may be part of the post sentence meeting but even if it is not, both must be completed within 5 working days or the order being made.

The work placement should commence later on the induction day or within 2 working days of induction having taken place i.e. within seven working days of imposition of the order. To achieve these timescales it may be necessary for an individual to be placed temporarily within a group placement until a more suitable placement can be identified which may utilise and/or increase the skills identified at post sentence interview. For example, consideration may be given to temporarily reducing the number of days per week one individual has been allocated to a placement in order to allow another individual to start unpaid work promptly. However, this action should only be taken where it will not jeopardise the original placement in terms of that individual's ability to complete their unpaid work requirement within timescale.

22.6 Health and Safety Induction

All placements require to operate within the local authority's Health and Safety policy. This requires the maintenance of close operational links between schemes and local Health and Safety officers. Both employees and individuals need to be covered by this policy. A hard copy and/or DVD should be available covering all risk and Control of Substances Hazardous to Health (COSHH) assessments and should be considered when work tasks are being assessed. This must be updated annually and signed and dated by the unpaid work team manager.

It is the responsibility of local authorities to ensure that all unpaid work supervisors have their training needs in relation to all aspects of Health and Safety identified and met.

22.7 Organising Work Placements

Unpaid work placements fall into two main categories: those offered and supervised internally within unpaid work schemes and those offered and supervised by external organisations and agencies. In general, group placements fall into the first category and individual placements the second. Irrespective of the type of placement, delivery agencies require to ensure that minimum agreed standards are achieved or exceeded.

Unpaid work schemes should make placements available across a wide range of work settings and types of activity, for example, work which is available throughout the week including evenings and weekends, and work which so far as is possible is available throughout the geographical area covered by the scheme.

Where possible, placements should be made within those communities which have been impacted by the individual's offending behaviour. Where the risk assessment allows, the individual should be given the opportunity to have some direct or indirect contact with the beneficiaries of their work.

A risk assessment must inform the choice of placement. Great care must be taken to avoid placement in an area which would provide opportunities for access to the victim, a notable example being cases in which domestic abuse is a feature. For example, if it is known that a victim of an individual on a work team frequents a particular day centre and unpaid work is carried out there, that particular individual should be reassigned to another work team. Unpaid work supervisors have a responsibility to remove a work team from the vicinity if it becomes known that a victim is in the immediate area.

22.7.1 Issuing Work Instructions

The individual must be issued with written work instructions to cover all required work or other activity sessions. A copy must be retained on file. (NB this does not mean that separate work instructions require to be issued for each session). The following features should be observed:

  • Instructions must detail the date, place and time at which attendance is required.
  • All changes in date, place and time must be notified in writing to the individual in amended or new instructions.
  • The instructions must also highlight the good standard of presentation and conduct that is expected (e.g. attendance in a fit condition to safely complete the work and not be in possession of, or under the influence of alcohol and/or drugs).
  • The individual must sign and date the original instructions and each set of new or amended instructions. The top copy of these instructions and documents confirming receipt of same must be retained where possible, duly signed and dated.
  • The signing and dating of instructions by the individual must normally be witnessed by a member of the unpaid work team, who should countersign and date the individual's confirmation of receipt.
  • Instructions should provide for completion of the required number of hours within the time set out by the court - normally 6 months (3 months if a level 1 requirement) of the date of the order.

22.7.2 Placing the Individual in Work

Responsibility for the allocation of individuals to placements rests with the unpaid work case manager and if the order includes an offender supervision requirement, should reflect also the views of the responsible officer[20]. In determining the most suitable placement, JSW staff should have regard to the circumstances of the individual, their assessed needs and skills, the assessed nature and level of their risk, and the type and location of available work placements. The induction programme should assess the individual's capabilities, allow them to express their views on the type of unpaid work to be undertaken, and provide clarification with regard to roles, purposes, responsibilities and expectations. It should also allow for child care commitments, health conditions and any other factors that may limit participation to be taken into consideration.

Consideration should also be given to any adverse publicity or whether the individual is known in their community due to the nature of the offence. Careful consideration must also be given to any increased risk to a placement by the number of individuals present at one time or by the total number of individuals involved in completing the task. Every reasonable step must be taken to ensure that that the level of supervision provided is sufficient to minimise risk to anyone at the placement.

The individual must be involved at an early stage in discussion about the most appropriate placement. The responsible officer or unpaid work case manager should inform the individual of decisions on placements following assessment.

22.7.3 Alcohol/Drugs

All individuals reporting for work are expected to present as fit to undertake it safely. Any individual subsequently regarded by the unpaid work supervisor as intoxicated and unfit for work during the placement must be dismissed from work that day as unable to perform unpaid work duties satisfactorily. Only medically prescribed and confirmed drugs should be in the possession of those undertaking work placement. Where concerns arise regarding the fitness to work of an individual on personal placement, the agency should contact the unpaid work case manager to have the individual dismissed from site.

It is for the unpaid work case manager to investigate the circumstances of an individual being dismissed from work and to assess the culpability of the individual and decide on what disciplinary action, if any, to take. Where the unpaid work is imposed as a requirement alongside an offender supervision requirement of a CPO, the unpaid work case manager must notify the responsible officer within one working day of the absence, and a decision as to the acceptability or otherwise must be made within 2 days and recorded accordingly.

22.8 Equality and Diversity Issues

A sufficient range of placements must be made available to individuals to ensure due regard is paid to their gender, sexual orientation, ethnicity, disability, age and/or religion. Unpaid work schemes also require to ensure that placements can accommodate individuals with inescapable commitments relating to paid employment, education and domestic circumstances. Care arrangements for single carers therefore will require to be considered and measures put in place so that they are not disadvantaged or discriminated against in undertaking an unpaid work or other activity requirement. Refer to Scottish Government Circular JD/2/2011 on expenses payable to individuals on CPOs.

22.8.1 16/17 Year olds

Young people aged 16 and 17 years old require to be carefully assessed as to the most appropriate placement. It is envisaged that the majority of this age group will be placed in work teams, supervised by local authority supervisors as young people in this age group may encounter difficulties with individual work placements. Additionally, individual placements may not be able to cope with the extra support such an age group can require.

Unpaid work schemes may wish to give consideration to flexibility in recognition of the needs of young people in this age group and the difficulties which can be experienced by them. Particular attention must be given to the mix of such groups where individuals with a sustained history of offending, or where those of an older age group, are present. Any local territorial issues must be considered to avoid confrontations.

It is especially important that young people in this age group are encouraged, in conjunction with their responsible officer/unpaid work case manager, to identify their "other activity" if any, by the 10 day stage at the latest. The other activity should be commenced as soon as possible to ensure that they begin to benefit from the input the "other activity" can offer.

If a young person is at risk of breaching their unpaid work requirement, unpaid work case managers should review the situation as soon as possible to discuss any issues preventing the young person completing their order. This review should involve the young person and further support should be offered, or a change of placement suggested, if required, to support completion of the order. As outlined above, where necessary the responsible officer can consider making an application to the court to vary the order if it seems such a variation might assist in ensuring compliance.

22.8.2 Women

Gender issues must be considered when arranging unpaid work or other activity so that women in particular are enabled to complete their CPO without harassment, based on their gender or circumstances. For example, consideration should be given to the provision of female only work teams. Placements which do not offer the opportunity of women only groups may expose women to intimidation and bullying. This is an important consideration and particularly so, for example, where a woman may have been the victim of domestic abuse and/or other forms of abuse.

As for those provided to men, placements should focus on allowing women to develop and gain skills which may increase opportunities for personal learning and employment.

Many women may also be carers and schemes are responsible for ensuring that women are supported in accessing support which will enable them to complete their CPO. This may include help in securing nursery placements or the provision of registered child care lists. Additionally, this may also include the opportunity for flexible contracts which allow women who are carers for children, to drop children off to school and to collect them at the end of the school day, or to meet other caring responsibilities. Consideration should also be given to allowing appropriate networks to be established which can provide support once the CPO is completed to facilitate women building on skills learned/achieved during their period on unpaid work.

22.9 Minimum and Maximum Hours

The period of any work session must be sufficient to ensure the completion of worthwhile work and should not normally be less than 2 hours. There is no limit to the maximum number of hours an individual can undertake in a week if there is capacity. If the individual is not in employment, the responsible officer[21] must ensure that unpaid work does not endanger the individual's entitlement to benefit and that the individual must remain available for work. The individual should still be able to actively seek employment during this period and should be able to take up an offer of employment or attend an interview on being given 24 hours' notice.

The individual must inform their responsible officer/unpaid work case manager or another member of the unpaid work team as soon as they have a job interview if it conflicts with their work instruction. Work instructions must not be given for the day on which the individual "signs on".

Where an individual is in receipt of benefits and is required to attend courses as instructed by the Department of Work and Pensions (DWP) to ensure they receive certain benefits, JSW staff should take this into account when arranging unpaid work placements. Where a work or training placement is arranged through DWP, some consideration may be given to a small percentage of the individual's attendance contributing towards their hours if the work/training is beneficial to the community and does not attract additional payment other than to cover expenses.

Those undertaking unpaid work must be made aware that engaging in this work does not provide an exemption from job search activity. Responsible officers/unpaid work case managers should raise awareness of this among those in receipt of benefits in order to assist in maintaining receipt of such benefits.

Those in receipt of benefits taking part in unpaid work may not, however, have as much time available as others to look for work and this should be taken into account by JobCentre Plus staff when considering an individual's job search activity. JSW staff may, with the individual's agreement, wish to liaise with JobCentre Plus staff to confirm that the individual is subject to a CPO with unpaid work requirement.

For those individuals in employment, the working pattern for the unpaid work requirement will require to accommodate the hours of work or shift pattern of the individual. This will often result in a requirement for provision of evening and/or weekend placements to accommodate those in employment. For individuals who work a shift pattern, consideration should be given to providing a "flexible contract" stipulating that a minimum number of hours must be completed each week thereby not jeopardising employment. In addition, sessional unpaid work supervisors can provide a greater degree of unpaid work flexibility and support the unpaid work scheme to provide weekend placements.

22.9.1 Recording Hours Worked

Section 227O of the 1995 Act permits Scottish Ministers to make rules about how the time spent undertaking unpaid work activity should be managed and reckoned. No such rules have been made at the date of publication of this guidance. Individuals should however be credited for work undertaken as part of the unpaid work requirement, subject to the following qualifications:

  • Placement agencies must only ask individuals to undertake work as part of their unpaid work requirement, which has previously been agreed with the unpaid work case manager, other than in exceptional circumstances.
  • Time to assemble equipment such as scaffolding, and to clean and put away tools, must be included in the record of hours worked.
  • Meal or coffee/tea breaks will be included in the record of hours worked but must not exceed one hour in total for each full working day. Individuals must not be allowed to leave site during such breaks and must be supervised at all times. This also applies to personal placements.
  • The expected standards of behaviour during meal breaks will be the same as those expected during the hours of work and must be supervised.
  • When travel to and from a placement. or reporting point exceeds one hour per day in total. any additional required travelling time, over one hour, must be credited in full.
  • When the individual reports for work as instructed and the work/task cannot commence or a suitable alternative cannot be found, the individual may, subject to the discretion of the unpaid work case manager, be credited 2 hours of work.
  • If the individual reports as instructed, the work commences but cannot continue, and alternative work cannot be found, the individual should be credited with the number of hours worked or, subject to the discretion of the unpaid work case manager, 2 hours, whichever is greater.
  • Where a work task finishes early due to inclement weather or where it is impractical to commence a new task before the work team is to be dismissed, the actual finishing time must be clearly recorded. Hours should only be credited when the individual is physically present at placement, with the exception of the aforementioned circumstances.

Where an individual is subject to an offender supervision requirement and an unpaid work requirement, the responsible officer[22] should avoid making supervision appointments with the individual during the times that the individual is at placement.

Unpaid work case managers must ensure that a record of the hours worked by each individual is maintained in his or her case file. The case file must contain a record of:

  • the hours worked for each work session;
  • a record of all acceptable and non-acceptable absences;
  • the accumulated total of hours worked by each individual; and
  • comments on attendance, punctuality, behaviour and work performance on each attendance.

This case file constitutes the official organisational record about the individual and must be made available to the individual on request as per local authority procedures. It will record information contained in the proposed attendance sheet to be completed by placement agencies (see Annex 11 Form 6).

22.10 Group Placements

A group placement is one to which two or more individuals may be assigned and which is supervised by a member of the unpaid work team and/or an approved agency provider. Group placements should not normally contain more than 5 individuals at any one time.

In order to allow individuals to start their CPO as quickly as possible, schemes should arrange for one or more group placements to be available to allow new individuals to be slotted in, if necessary on a temporary basis, until a permanent placement becomes available. Where in exceptional circumstances there is no placement available, consideration may be given to temporarily reducing the number of days per week one individual has been allocated to a placement in order to allow another individual to start unpaid work promptly. However, this action should only be taken where it will not jeopardise the original placement in terms of that individual's ability to complete their unpaid work requirement within timescale.

Responsible officers/unpaid work case managers should take into account the range of differing needs of individuals. For example, consideration should be given, where numbers allow, to providing women only work parties, "light work" parties for individuals whose health or other circumstances make that necessary, or providing individual work placements.

Unpaid work supervisors should ensure that there is no harassment or intimidation of vulnerable people or members of the public by other individuals in the work party. Unpaid work supervisors also have a responsibility to promote pro-social modelling, where the quality of the relationship between the supervisor and the individual can impact on changes in the individual's behaviour in addition to challenging unacceptable behaviour. Unpaid work supervisors should use their authority to deal with such incidents at the time, and notify the responsible officer[23] and/or unpaid work case manager, where practical, by the end of the working day.

22.11 Individual placements

In large part, individual placements will be provided by external organisations and agencies. Unpaid work case managers have the following responsibilities to organisations providing placements:

  • to maintain weekly contact so as to monitor the progress of the placement and to ensure that weekly time sheets are submitted promptly;
  • to carry out a risk assessment of the agency and the placement and to ensure that all health and safety requirements will be explained during induction to the placement (induction must take place on or before the first day at the placement);
  • to explain to staff within the agency the nature of unpaid work and the obligations it places on individuals;
  • to consider the views of organisations about those individuals who are best suited to work in the organisation, and, after full discussion, to respect any restrictions or special requirements (other than those which would be in breach of equal opportunities);
  • subject to data protection legislation, to offer relevant information to nominated staff within the organisation about the individual's background and history of offending, including the nature of the offence for which the CPO has been imposed, and to satisfy themselves that this information will be used appropriately and stored securely by the organisation;
  • to ensure that arrangements are in place to record and conform to agreed standards regarding regular attendance, prompt timekeeping and satisfactory work performance;
  • to outline the nature and extent of the assistance which the organisation may expect from unpaid work staff;
  • to provide rapid follow-up when problems emerge during the work placement, both at the request of the agency or where concern is expressed by another party;
  • to be responsible for all disciplinary measures, including initiation of court proceedings;
  • to avoid where possible the involvement in court proceedings of outside organisations offering placements, especially where breach procedures are initiated; and
  • to ensure that only those organisations which meet the obligations outlined below are used for unpaid work placements (see model of good practice for Individual Service Agreement in Annex 11 Form 4).

All organisations offering unpaid work placements should fulfil the following basic duties:

  • Inform the responsible officer how the organisation proposes to deal with relevant and confidential information about the individual's background, offending history and current offence, provided by the unpaid work case manager. Such information should only be shared with previously nominated staff or volunteers when it is considered necessary in the interests of managing the placement safely.
  • Assess any potential risk to the organisation or others within it, which may result from the placement of an individual.
  • Assist the process of "matching" the individual with a particular work placement.
  • Comply with the local authority's practice and procedures regarding the sharing of personal information.
  • Apply the same standards to their working relationships with individuals subject to an unpaid work requirement as they apply to their relationships with other members of staff or volunteers.
  • Ensure the availability of sufficient work to occupy the individual during agreed working hours.
  • Ensure adoption of the following procedures:
    • All absences and instances of significant misconduct should be reported to the unpaid work case manager without delay and normally within one working day.
    • Complete and return an attendance sheet detailing hours of work undertaken for each session on a weekly basis to the unpaid work section of the JSW office. This sheet must include details of times of arrival and departure, the hours credited, details of tasks undertaken and a comment on work performance. All absences and instances of significant misconduct must be noted and reported immediately to the unpaid work case manager, or a member of the unpaid work team and at the latest within one working day. Each attendance sheet must be signed by the individual and countersigned by the agency supervisor on the site.
    • Comply with all health and safety regulations.
    • Refuse any requests for loans from the individual.

It is the unpaid work case manager's responsibility to ensure that agencies offering personal placements are made aware of these procedures.

A model of good health and safety practice is attached at Annex 11 Form 5.

22.12 Other Activity

An unpaid work requirement provides the opportunity, within certain prescribed limits, for an individual to undertake other rehabilitative activities which promote desistance (e.g. alcohol or drug education, interpersonal skills training, personal development or confidence building, literacy and numeracy tutoring, victim awareness, careers advice and employability training (CVs, interviews)). Other activity must not exceed 30% of the specified number of hours in the requirement, or 30 hours, whichever is the lower. The legislation does not stipulate a minimum period of other activity and it is feasible for the requirement to consist solely of unpaid work. This is a decision for the responsible officer or unpaid work case manager.

Where an offender supervision requirement is made in addition to an unpaid work requirement, responsible officers[24] have overall responsibility for decisions on the extent and nature of the other activity component of the requirement in respect of an individual. This should follow consultation and agreement with the individual and the unpaid work case manager and form part of the case management plan which requires to be finalised within 20 working days of imposition of the order.

Unpaid work team managers have responsibility for identifying and developing appropriate local resources, both internal and external, in conjunction with other agencies, which will assist delivery of other activities.

Unpaid work team managers may wish to give consideration to the following possibilities for "other activity", although they are not designed to represent an exhaustive list:

  • Specific work on improving literacy, numeracy and/or problem solving. This may require liaison with local colleges or other similar resources to develop and facilitate appropriate support. The aim should be to provide opportunities for individuals to improve their education, if any difficulties are identified by the individual at the pre/post sentence review following tactful enquiry. However, should the individual not wish to pursue this work, this should not be deemed an occurrence which would attract disciplinary measures (See also section 10.1 in this guidance).
  • There may be a need to work on managing anger should this be an area from which the person would derive benefit, regardless of whether this was a factor in the current offence.
  • Gaining assistance through the "other activity" component with a pattern of alcohol consumption identified as causing difficulty, where neither an offender supervision requirement nor an alcohol treatment requirement is imposed, but where it appears likely that the individual would benefit from such assistance.
  • Development of certain modules (traditionally delivered as part of Supervised Attendance Orders), to improve interview techniques and presentation during interview, and assistance in understanding the implications of the Rehabilitation of the Offenders Act 1974 for job applications and interviews.
  • Exploration of the potential of the work carried out counting towards a Scottish Vocational Qualification (SVQ). Unpaid work supervisors may have a role in helping individuals to identify and achieve learning goals which thereafter can be assessed by a suitably qualified SVQ assessor. A full record of competencies achieved should be retained to ensure that these can be attributed to a SVQ.
  • Where a placement involves construction activity this may contribute to the individual securing a Construction Skills Certificate, which is a mandatory requirement for working on construction sites. The Construction Skills Certification scheme is principally education based but may be augmented by experience gained as part of unpaid work. Where there are existing local providers, these or other agencies may be able to offer a partnership approach tailored to individual circumstances.

It should be made clear to the individual that "other activity" is an intrinsic part of the unpaid work requirement which must be complied with in similar manner to the unpaid work component with similar consequences for non-compliance. Once the "other activity" component has been agreed as part of the case management plan, the responsible officer or unpaid work case manager must ensure that arrangements for monitoring are in place and that appropriate sanctions are applied in the event of non-compliance. Hours spent at "other activity" must be recorded in case files in a similar manner to that of unpaid work.

22.13 Compliance

(Please read this in conjunction with Section 14 of this guidance)

When the unpaid work case manager concludes that an explanation offered by an individual for non-compliance with the requirements of the order is unacceptable, the actions as detailed in section 14 of this guidance should be invoked. Nevertheless, all efforts should be made to identify the reasons for the lack of engagement (e.g. ill health, major life event, relationship problems, childcare issues) and support and guidance provided to prevent further unacceptable absences. A home visit may prove helpful in these circumstances.

Where disciplinary actions are invoked during the course of a CPO, this should be done where possible in a manner which allows the individual to continue to focus on progress towards successful completion of the order rather than regarding the disciplinary action as inevitably leading to breach. At the start of a CPO in particular, the individual may test boundaries. This must be dealt with firmly and swiftly to demonstrate the importance of compliance and reinforce the benefits of positive engagement.

However, in the interests of justice and to maintain the credibility of the unpaid work requirement, disciplinary procedures must reflect the requirements of the legislation and be reasonable, clear, consistent and enforceable. They should be proportionate, capable of being upheld in a court of law and able to be swiftly implemented.

Where an offender supervision requirement is imposed in addition to an unpaid work requirement, or where only an unpaid work requirement is imposed, the responsibility for issuing warnings in relation to the unpaid work requirement is that of the unpaid work case manager. However, where an offender supervision requirement has also been imposed, it is expected that the responsible officer and the unpaid work case manager will work closely together, sharing information and agreeing the way forward should issues arise. When a warning letter is being considered by either party, this should, where possible, be signed by both the responsible officer and the unpaid work case manager.

A review of the individual's case by the unpaid work team manager, with the individual present, may prove useful in securing compliance.

Where there has been a significant occurrence, for example, where the responsible officer/unpaid work case manager doubts whether the objectives of the CPO remain appropriate or can be achieved, it may be appropriate to return the CPO to court regardless of the stage the individual is at in the warning process.

Where the significant occurrence is deemed to compromise the safety of another person (including JSW or unpaid work members of staff), or where a condition which was imposed for the purpose of preventing access to victims has been breached, the order should be promptly returned to the court. In cases involving a serious concern for public safety, immediate direct contact with the court will be warranted in order that the court may give consideration to expediting a hearing. During this period all reasonable additional measures should be taken in order to ensure the safety of, and support for, a known victim. For example, the police should be immediately informed of any escalation in risk to the victim.

For further examples of measures that can be taken throughout the duration of the CPO to protect victims' safety, refer to Section 8 of this guidance.

However, unpaid work case managers should take reasonable steps:

  • to support and enable the individual to complete their order; and
  • to enforce the requirements of the order firmly and timeously, should the individual not comply with that order without reasonable cause.

The unpaid work case manager must therefore be fair, reasonable and consistent in the application of the unpaid work requirement.

When the individual does not comply with any aspect of the unpaid work requirement, the unpaid work case manager must take the action outlined earlier.

It is clear that a single unacceptable failure to attend as instructed constitutes an absence and each absence requires a decision as to acceptability or otherwise to be made within 1 week, and certainly before the next instructed attendance, and recorded as per the local authority's policy and procedures.

The unpaid work case manager must decide, after full consideration, which should include full discussion with the individual, whether the explanation which is offered is acceptable or not as indicated in the preceding guidance relating to other requirements. Non-attendance should be followed up with a telephone call. It is important that the unpaid work case manager finds out the reasons why the individual is not engaging (e.g. ill health, major life event, relationship problems, childcare issues), and supports them to address the problem, if appropriate. In this context the following reasons for failure to comply will generally be acceptable. Where discretion is being considered, this should be discussed with the unpaid work case manager's line manager, and decisions regarding acceptability or otherwise must be clearly recorded and detailed in the case file:

  • ill health:
  • where the individual is in custody;
  • where unforeseen requirements are placed on the individual by their employer and these are confirmed in writing; and
  • where the individual is faced with a serious and unforeseen crisis arising from other responsibilities. Confirmation of such circumstances should be sought.

In general, formal disciplinary action should always be taken where the failure to meet the requirement is serious, or where there are repeated minor failures. Where an unacceptable failure to meet a requirement occurs which does not interfere with the performance by the individual of unpaid work, the responsible officer[25] may decide to issue a caution. Where a caution is given, the failure and the caution should be recorded in the case file and the individual notified.

When the individual has not complied with other requirements of a CPO, unpaid work case managers should exercise their judgement as to the appropriate action to be taken in relation to the unpaid work requirement.

Where an individual has accrued one unacceptable absence, and incurs a second one, the unpaid work case manager, following discussion with the unpaid work supervisor, may decide to temporarily suspend the unpaid work pending a review with the individual. (It would be expected that this action would not be considered where the second absence occurs shortly after induction or shortly after a first warning has been issued). A review allows the individual to explain the reasons for their absence and discuss any issues which may be impacting on their ability to attend. The letter to the individual requesting that they attend for a review should advise that the letter constitutes a final warning. The unpaid work case manager may choose to withdraw the final warning following the review, depending on the circumstances.

Where an individual has accrued 2 unacceptable absences, is subject to a Final Warning, and incurs a further unacceptable absence, the unpaid work case manager should notify the responsible officer if an offender supervision requirement is also imposed. Where unpaid work is the sole requirement, the unpaid work case manager (the responsible officer in these circumstances) will then be required to notify the responsible court that the individual is deemed to be in breach of their CPO by virtue of failing to undertake and comply with the unpaid work requirement. Once a decision has been taken to return a CPO to court, the appropriate report must be lodged at court within five working days of the decision to invoke the breach procedures.

Where the unpaid work has been imposed in addition to an offender supervision requirement, the unpaid work case manager should copy all relevant correspondence to the responsible officer to allow for discussion and consideration of a breach report being submitted to the court. It is expected that the responsible officer and the unpaid work case manager would work closely together, sharing information and agreeing the way forward should issues arise. However, the decision to initiate breach proceedings and return the CPO to court is the responsibility of the responsible officer. Where the decision is to invoke breach proceedings it is for the responsible officer to prepare the breach report and submit it to the court.

Where an unpaid work requirement is returned to court under breach proceedings, the unpaid work may, after full consideration of the individual's overall response to the CPO, be suspended pending the outcome of the court's decision. However the supervision of any other requirement should continue pending the outcome of the court's decision. In assessing whether the other requirements of the CPO can continue, this assessment should consider the maintenance of credibility of the order/scheme with other participants.

The forthcoming court appearance may be used by the responsible officer/unpaid work case manager as an opportunity to motivate the individual to re-engage, if considered appropriate. Where there is an improvement in the level of compliance, or further failures to comply pending the outcome of a breach application, these should be addressed in a subsequent report to the court when dealing with the breach. This would give clearer information to the court as to the individual's likely ability to comply further with the CPO.

It may be helpful for an allocated member of staff to oversee all decisions to submit a breach application to court, in order to maintain consistency of decision-making.

22.14 Breach Proceedings

Where an offender supervision requirement is imposed alongside an unpaid work requirement, the unpaid work case manager has responsibility for informing the responsible officer if the individual continues to not comply, and they should discuss whether breach proceedings should be initiated. The decision to initiate breach proceedings is the responsibility of the responsible officer.

Where an unpaid work requirement has been imposed on its own, the unpaid work case manager, (the responsible officer in these circumstances), will submit the breach using a standardised form, within 5 working days (see Annex 12). This standardised form will effectively be the complaint or indictment and refer to the relevant legislation and the specific date of the conduct that is alleged to constitute a breach of the order.

22.14.1 Reports to accompany Breach of Unpaid Work or Other Activity

Any breach which is presented to the court may be challenged and must therefore be supported by sufficient evidence. The evidence of one witness can provide sufficient evidence to establish a breach (section 227ZD(1) of the 1995 Act). In all cases it is essential that it can be established that the CPO was issued to, and signed by, the individual and that a clear work instruction was given.

Once it is established that the CPO was received and signed by the individual, there are 2 further elements which require to be proved for every case of breach for failure to attend, both of which must be recorded in the case file:

  • that the individual was given and received relevant work instructions, detailing the date, place and time of work (see Section 22.7.1); and
  • that the individual did not attend work as instructed with no reasonable excuse.

Every application to the court must be accompanied by a report which provides information and expresses a view about:

  • the setting and nature of the work and the time when it had to be done;
  • the tasks undertaken and the individual's response to the demands made;
  • the extent of the individual's overall compliance with the order;
  • any external (e.g. domestic) factors affecting the individual's compliance with the requirement; and
  • a reasoned opinion as to whether the order might usefully continue, be varied, or be revoked in the event of the breach being accepted or proved.

For CPOs where an unpaid work requirement has been imposed on its own, this report will be written by the unpaid work case manager (the responsible officer in these circumstances). For CPOs where an offender supervision requirement has been imposed alongside an unpaid work requirement, this report will be written by the justice social worker who is supervising the individual (the responsible officer in these circumstances).

Where a failure to comply with the unpaid work requirement is the grounds for the breach but an offender supervision requirement has also been imposed, all relevant information must be collated in a suitable form and passed by the unpaid work case manager to the responsible officer for them both to discuss submission of a breach to the court. In such instances, where the decision is to submit a breach, it will be the responsibility of the responsible officer to submit this within the aforementioned timescales.

A suggested template for this task is provided at Annex 6.

The standardised front sheet should be accompanied by a breach report placing the current alleged breach in the context of the individual's attitude to, and previous efforts to comply with, court orders. The circumstances of each breach will obviously be varied and the breach report should reflect this. The breach report should contain contextual information in relation to the breach and must, in addition to the information noted at Section 14 of this guidance, include:

  • information on the individual's progress throughout the unpaid work requirement and the circumstances which led to the breach;
  • relevant information on changes in individual's circumstances where these are known to the report author; and
  • a reasoned opinion as to whether the requirement might usefully continue, be varied or be revoked in the event of the breach being accepted or proved.

Where the order consists solely of an unpaid work requirement, however, the unpaid work case manager, (the responsible officer in these circumstances), should restrict advice to variation of the requirement (e.g. an increase in the number of hours).

22.14.2 Failure to Attend

The standards of evidence in relation to failure to attend unpaid work or other activity are the same as those identified at Section 14 of this guidance.

22.14.3 Unsatisfactory Performance at Work

Where procedures for breach are being considered on the above grounds, it is necessary to ensure that the conduct complained of is witnessed and recorded by the unpaid work supervisor or placement agency. Depending on local policies and procedures, an incident reporting form may require to be completed.

22.14.4 Failure to Comply

The standards of evidence required to prove lack of punctuality are the same as those for failure to attend.

22.14.5 Failure to Notify Change of Address

The standards of evidence are the same as those referred to in Section 14 of this guidance.

22.14.6 Failure to Notify Change in Employment

Although technically possible, it is most unlikely that the responsible officer/unpaid work case manager will need to use these grounds alone for instituting breach proceedings because, if the individual continues to comply with all other aspects of their CPO, failure to notify a change in employment, in itself, would not be viewed as grounds to return an order to court under breach proceedings.

22.14.7 Timescales for Breach

Rigorous and robust breach procedures are essential if the unpaid work requirement of CPOs is to be regarded as a credible community penalty. Responsible officers and unpaid work case managers have a critical role to play in supporting and encouraging individuals to remain compliant throughout the period of the order. As a general principle, the appointed responsible officer/unpaid work case manager, in situations where an individual has not complied with the requirement through a third unacceptable absence, should submit a breach report to the court within five working days of the decision to breach.

Where the court has imposed an offender supervision requirement in addition to the unpaid work requirement and where an individual is absent:

  • The unpaid work case manager must notify the responsible officer within one working day and the absence noted on the individual's record of attendance.
  • Following consultation with the member of staff reporting the absence and the individual to establish the acceptability or otherwise of the absence, the unpaid work case manager should, in discussion with the responsible office, agree on the action to be taken within two working days of the reported absence, and no later than the next instructed day to attend unpaid work. All parties should be informed of the decision taken.
  • If the decision is to invoke breach procedures, a report (see Annex 12) by the responsible officer requires to be submitted to the court within five working days.

An unpaid work flow chart is attached at Annex 14.

22.14.8 Breach Established

If the court holds that an unpaid work activity has been breached it may:

  • impose a fine on the individual not exceeding level 3 on the standard scale;
  • where the CPO was imposed as an alternative to imprisonment, revoke the order and deal with the individual in respect of the offence in relation to which the CPO was imposed as it could have dealt with the individual had the order not been imposed;
  • where the CPO was imposed as an alternative to a fine, impose a custodial sentence of up to 3 months (60 days in a Justice of the Peace court);
  • vary the CPO so as to impose a new requirement, vary any requirement imposed by the CPO (e.g. increase the number of hours) or discharge any requirement; or
  • both impose a fine and vary the order.

Should the court decide to impose a new requirement this can include a restricted movement requirement.

In dealing with an accepted/proven breach of a CPO originally imposed instead of a fine, or imposed following fine default under section 227M of the 1995 Act, and where the court decides to revoke the CPO and instead impose a custodial sentence, the maximum term when dealt with by a Justice of the Peace court is 60 days and 3 months by a higher court. If imprisoned, the original fine will be discharged.

22.14.9 Concurrent/Consecutive Orders

For breach purposes, it is court practice that concurrent CPOs should be treated as one order and consecutive orders should be treated as individual orders. In the case of consecutive orders, whilst the focus should be on the specific order which gave rise to the breach, the court should also be asked to consider the position in respect of any subsequent CPOs in the light of the breach.

22.15 Other Provisions

22.15.1 Variation/revocation/discharge

There are no specified circumstances contained in the 1995 Act which constitute grounds for revocation, variation or discharge. However, an application may be made by the individual or by the responsible officer to request a revocation, variation or an early discharge. As a broad principle, such applications are appropriate where circumstances have arisen since the CPO was imposed, which suggest that it would be in the interests of justice for the court to consider amendment or revocation. However, the following illustrate the most common grounds for such an application:

  • medically certified illness over a lengthy period of time which prevents the individual from performing the CPO in a satisfactory manner including where an individual is subject to a Compulsory Treatment Order under the Mental Health (Care & Treatment) (Scotland) Act 2003;
  • insufficient progress towards completion of the CPO even where absences have been for acceptable reasons;
  • the individual's conviction for further offences resulting in a significant period of custody; and
  • the individual's employment circumstances over a significant period of time are such that there are no available and reliable times to fulfil the requirement.

In addition, there is an ability within the legislation for an application to be made to the court for early discharge of the CPO regardless of the nature of the requirements. This would be on the basis of the individual's highly positive progress. Where such an application is to be made, it would normally be the responsible officer[26] who would make the application.

22.15.2 Progress Reviews

The court may decide as part of an unpaid work requirement that the individual should attend for a review hearing to assess their progress in fulfilling the requirement. It would not normally be expected that review hearings would be held for those individuals subject to a level 1 unpaid work requirement because of the short time period for completion but there is nothing to preclude the court requesting a review hearing in such circumstances.

Reference should be made to Section 16 of this guidance for further information on progress reviews.

22.15.3 Transfers

There are no issues specific to the transfer of those orders which contain unpaid work requirements beyond those set out in Section 17 of the broader guidance for CPOs to which reference should be made when an individual moves residence.

22.15.4 Completion

On completion of an unpaid work requirement, an exit questionnaire (see Annex 8) should be completed by each individual, with assistance from a member of the JSW Staff assessing the quality of the individual's experience. This will allow the individual the opportunity to express their views independently and offer suggestions for improvements thereby giving the individual an opportunity to be involved in contributing to the service. A formal review should be held addressing the quality of the service provided in managing the order, changes in the individual's motivation to offend, learning, changes in behaviour, offending during the period of supervision, future prospects etc. This review should be recorded and collated so as to contribute to an overall evaluation of effectiveness.

It would be considered good practice for the unpaid work case manager to submit a completion report (see Annex 9) to the court and include a copy on the case file. Its content should include an outline of the setting and nature of the work undertaken, the standard of work achieved, the content of other activity and the impact, if any, the requirement had on the behaviour/attitudes of the individual and any change in employment status. Comments made by the individual in terms of their experience of being subject to a CPO should be included in the completion report.

The opportunity should also be taken to remind the individual of the effects of the Rehabilitation of Offenders Act 1974 as it relates to the order.

22.15.5 Liaison

Local authority managers, including the unpaid work team manager, must ensure that there is an appropriate emphasis on unpaid work in the course of regular liaison with the judiciary. In addition, courts should be provided with annual reports about the operation of the local unpaid work scheme, with regular updates and feedback. This is the responsibility of the local authority. (See Section 14 of this guidance).

22.15.6 Training

A wide variety of skills across a range of staff groups are required to ensure that unpaid work or other activity is delivered effectively. It is essential that sufficient specialist training is consistently available to all staff involved in schemes to ensure that the highest standards are maintained.

Distinctive staff groups, with specific and differing training needs, are employed in unpaid work schemes. For this reason the training strategy for unpaid work should form a separate, but integral, part of a training strategy developed for all JSW staff and should be reviewed annually.

Local training strategies should include:

  • induction programmes for all staff covering the philosophy of unpaid work and its place in the JSW system; and
  • relevant information from the Justice Social Work Outcomes, Objectives and Principles.

Additional components in relation to health and safety, and an introduction to issues of offending behaviour and pro-social modelling and anti-discriminatory practice should be included for supervisory staff and staff involved in placement finding e.g.:

  • diversity training for all staff;
  • ongoing health and safety training for unpaid work supervisors and other staff as relevant;
  • first aid training for unpaid work supervisors and subsequent updating as required;
  • ongoing technical training and refresher courses for task supervisors as required; and
  • training opportunities which may lead to relevant vocational qualifications (SVQs) should also be made available.

All social work qualified staff must be enabled to fulfil their Scottish Social Services Council responsibilities to complete 15 days' training within 3 years.

22.15.7 Health, Safety and Other Statutory Regulations

Each scheme must comply with its internal local authority accident reporting procedures. A copy of this must be available to any party requiring access. Where an injury occurs which requires reporting under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) guidelines, this will be the responsibility of the unpaid work team manager.

Any individual who refuses to comply with health and safety instructions given by the unpaid work case manager or unpaid work supervisor will be judged to be failing to perform the work satisfactorily and dismissed from work that day. Disciplinary action may be considered in the event of such behaviour.

Individuals must be offered protective clothing and footwear to enable them to carry out the tasks safely. Where an individual refuses to wear such items, they may be subject to disciplinary action.

22.15.8 Working Time Directive

The Working Time Regulations 1998/1833 (which transpose the Working Time Directive) do not apply to individuals subject to CPOs. This is because the working time regulations apply only to paid work.

It is important to recall however that the court has a degree of discretion when making a CPO requiring unpaid work to specify the number of hours and the period of time within which those hours are to be carried out. In so doing the court may have regard to any CJSWR which sets out the individual's circumstances. The individual will have the opportunity to bring existing work commitments to the court's attention. This may influence the number of hours and length of time over which the unpaid work that any order imposes is to be completed.

There is also provision under the 1995 Act for the responsible officer or the individual to apply to the court to vary, revoke or discharge an order. Here the court could consider any new paid employment obligations on the individual since the order was made.

22.15.9 Insurance

The following minimum standards of insurance provision must be agreed between the local authority and their insurers:

  • All unpaid work schemes should be covered by the local authority for Public and Employers Liability Insurance exposures. This may be accomplished by the extension of existing local authority Public and Employers Liability Insurance policies to cover CPO schemes.
  • These policies cover the local authority's legal liability arising out of any injury, loss, illness or damage occasioned by negligence.
  • the level of insurance cover provided for individuals undertaking unpaid work or other activity requirement should be no less than the cover provided to the local authorities' own employees.

Contact

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