Policy paper

Probation reform measures in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

Summary of measures

This EIA covers the following policy areas:

• Abolishing Senior Attendance Centres (SACs) – This measure proposes the removal of SACs from the menu of sentencing options available to sentencers.
• Strengthening Supervision Powers – This measure will clarify the extent of supervision powers by creating a power for Responsible Officers (ROs) to require offenders to attend appointments whilst a Community Order is in force or during the supervision period of a Suspended Sentence Order.
• Unpaid Work Statutory Duty – This measure will create a statutory requirement for probation officials to consult community stakeholders on the design and delivery of Unpaid Work.

Public sector equality duty

Under the Equality Act 2010, when exercising its functions, the MoJ has an ongoing legal duty (PSED) 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
• foster good relations between different groups.

We also recognise that, as well as having an obligation not to directly or indirectly discriminate against disabled people, the MoJ as a service provider has a duty to make reasonable adjustments for disabled people.

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

• Race
• Sexual Orientation
• Marriage/Civil Partnership
• Gender (sex)
• Religion or Belief
• Gender Reassignment
• Disability
• Age
• Pregnancy/Maternity

We have considered the policy proposals in accordance with the statutory obligations under the Equality Act 2010. The following is a summary of our assessment for the three probation reform measures.

Protected characteristics

Gender (sex)

Abolishing senior attendance centres

We do not currently hold data on the use of different requirements, including Senior Attendance Centres, by gender. The introduction of a new Equalities Monitoring Tool will enable data to be measured against key metrics and will analyse outcomes based on: age, sex, ethnicity, religious belief and sexual orientation. Probation regions will be able to analyse disproportionate outcomes and put in policies and practices to mitigate these.

Strengthening supervision power

Assuming that the offenders to whom this measure will be applied are similar in makeup to the overall probation caseload, individuals affected by this change will be disproportionately male compared to the general population in England and Wales. However, the Tiering Model used in offender management is designed to allow for changes as new evidence emerges around appropriate supervision levels for different groups. This should help ensure appropriate interventions and supervision is undertaken by all Responsible Officers when managing all offenders.

Unpaid work statutory duty

Sex is one of the protected characteristics that is used to analyse the probation caseload. A full breakdown of the NPS and Community Rehabilitation Company (CRC) caseloads by region and sex is provided in the Probation Reform Programme’s ‘Consideration of Equalities Impact’ document (Chapter on Data & Performance, Table 3). Proportionally females make up only 4% of the total prison population (HMPPS Offender Equalities Annual Report, 2019/20), yet 9% of all pre-release supervision is of females.

Increased sentence confidence in the effectiveness of Unpaid Work will encourage use of community orders as a robust alternative to custody, as recommended in the Female Offender Strategy. To aid sentencing decisions, the court will be aware of the range and diversity of Community Payback work schemes within the local area and the opportunities for a rehabilitative and restorative element to this work where appropriate. The Community Payback Team will ensure that an up to date directory of work placements and ETE opportunities are available to the court.

Supervised females make up 9.9% of the national unpaid work caseload at any one time. According to the 2011 Census^{[footnote 1]}, women and girls made up 51% of the population of England and Wales, and men and boys made up 49%. Where numbers allow, the scheduling tool should be set to facilitate women only induction sessions. In all cases a female service user will not be instructed to attend an induction or a placement where she is a single female within a group of men.

In the Unpaid Work assessment supervised females^{[footnote 2]} will be asked if they have a preference, where possible, for completing their hours in a mixed gender group, women only group or an individual placement. (Analysis of the UPW cohort shows that a 10% of the UPW cohort are women.)

Unpaid work managers and Placement Coordinators are required to ensure sufficient numbers of placements are available to meet the needs of supervised females. Successive reports have highlighted the need for different services and policies for women in the criminal justice system to ensure equality of treatment and outcome. Where numbers allow, the scheduling tool should be set to facilitate women only induction sessions. Programmes must also be offered at different times of day and on different days of the week to allow individuals to schedule attendance around childcare or other external commitments.

The Unpaid Work guidance manual specifies that the maximum time that an individual will be expected to travel to attend a placement or programme will be 90 minutes each way^{[footnote 3]}. The maximum time is expected to be the exception and a rationale for the length of travel time will be expected to be recorded for audit purposes.

Age

Abolishing senior attendance centres

Our plans to abolish Senior Attendance Centres and Senior Attendance Requirement would only affect those between the ages of 18 and 24. However, alternative requirements such as the Rehabilitative Attendance Requirement will be able to better meet the rehabilitative needs of young adults. In future, the assessment process for young adult offenders will consider more fully the individual’s risks, needs and responsivity issues, with the appropriate referrals being made via the new Structured Interventions and Dynamic Framework Interventions. The use of the new Probation Equalities Monitoring Tool will enable probation regions to be able to analyse disproportionate outcomes and put in policies and practices to mitigate these.

Strengthening supervision power

Assuming that the offenders to whom this measure will be applied are similar in makeup to the overall probation caseload, individuals affected by this change will be disproportionately young compared to the general population in England and Wales. However, the Tiering Model used in offender management is designed to allow for changes as new evidence emerges around appropriate supervision levels for different groups. This should help ensure appropriate interventions and supervision is undertaken by all Responsible Officers when managing all offenders.

Unpaid work statutory duty

Age is one of the protected characteristics that is used to analyse the probation caseload. A full breakdown of the NPS and Community Rehabilitation Company (CRC) caseloads by region and age is provided in the Probation Reform Programme’s ‘Consideration of Equalities Impact’ document (Chapter on Data & Performance, Table 1). Young adults (aged 18-24) can be seen to be a significant proportion of the total caseload (23.4%), whilst there is a far smaller proportion of older men (aged 50+) on the caseload (11.1%). Half (50.5%) of the Unpaid work caseload are aged between 25 and 39.

We have introduced a section on maturity to the Unpaid Work assessment. Maturity is assessed, through the completion of a full OASys assessment, on male service users aged between 18 and 25. Where a supervised individual is assessed as “likely to need support aimed at promoting maturation” we expect the Probation Practitioner to explain what action needs to be taken to support engagement/compliance with the UPW Requirement.^{[footnote 4]}

The Unpaid Work requirement is suitable for adults on probation over the age of 18. There is no upper age limit for undertaking Unpaid Work and it is the responsibility of the Placement Coordinator to provide work placements that are suitable for all levels of ability. More detailed guidance for staff will be provided in the revised Community Payback Operating Manual.

Ethnicity

Abolishing senior attendance centres

We do not currently hold data on the use of different requirements, including Senior Attendance Centres, by ethnicity. The introduction of a new Equalities Monitoring Tool will enable data to be measured against key metrics and will analyse outcomes based on: age, sex, ethnicity, religious belief and sexual orientation. Probation regions will be able to analyse disproportionate outcomes and put in policies and practices to mitigate these.

Strengthening supervision power

Assuming that the offenders to whom this measure will be applied are similar in makeup to the overall probation caseload, individuals affected by this change will be disproportionately from ethnic minorities compared to the general population in England and Wales. However, the Tiering Model used in offender management is designed to allow for changes as new evidence emerges around appropriate supervision levels for different groups. This should help ensure appropriate interventions and supervision is undertaken by all Responsible Officers when managing all offenders (including offenders from ethnic minorities).

Unpaid work statutory duty

Ethnicity is one of the protected characteristics that is used to analyse the probation caseload. A full breakdown of the NPS and Community Rehabilitation Company (CRC) caseloads by region and ethnicity is provided in the Probation Reform Programme’s ‘Consideration of Equalities Impact’ document (Chapter on Data & Performance, Table 2).

The majority (70%) of people on probation, who disclose their ethnicity, identify as white. According to the 2011 Census,^{[footnote 5]} the total population of England and Wales 86.0% of the population was White, people from Asian ethnic groups made up the second largest percentage of the population (at 7.5%), followed by Black ethnic groups (at 3.3%), Mixed/Multiple ethnic groups (at 2.2%) and Other ethnic groups (at 1.0%). This suggests there is an over-representation of offenders from ethnic minorities on probation.

We know that, currently, people from an ethnic minority on probation receive a disproportionately high referral rate of Unpaid Work and a disproportionately low referral rate for Accredited Programmes (i.e. more punitive and less rehabilitative disposals)^{[footnote 6]}. To aid sentencing decisions, the court will be aware of the range and diversity of Community Payback work schemes within the local area and the opportunities for a rehabilitative and restorative element to this work where appropriate. The Community Payback Team will ensure that an up to date directory of work placements and ETE opportunities are available to the court.

Placement Coordinators will work with partner agencies to identify placements within specialist agencies or organisations that support the integration and inclusion of specific cohorts of people with protective characteristics. This may include work with, for example, ethnic minority service users, including asylum seekers and new migrants, at an organisation that provides support and advice, thus facilitating access to services. Key probation processes; including Unpaid Work completions, will be monitored for racial disparity through the Probation Equalities Monitoring Tool and those outcomes will be analysed and made public wherever possible.

If an individual uses English as an alternative language, for example Foreign National Offenders, a translator will be made available to them. For Gypsy, Roma and Traveller individuals, we do not expect there to be a disproportionate impact, although we acknowledge that this group are overrepresented within criminal justice. We will continue to work with teams across the organisation to keep this under review and use the Probation Equalities Monitoring Tool to understand and make changes to areas where disproportionality exists.

Disability

Abolishing senior attendance centres

We know that those with a disability (including those with mental health issues and neuro-divergent offenders) are over-represented in both the adult and youth offender populations in both custodial and community settings when compared with the general population. However, we do not believe that any of these measures will disproportionately effect disabled individuals subject to supervision as the options to replace the SAC requirement can be tailored to meet individual need.

Strengthening supervision power

In so far as the policy will extend to disabled offenders serving a community or suspended sentence order, we believe that the policy is proportionate. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, including when supervising disabled offenders. Consideration of all forms of disability is already embedded into established practice and forms part of the assessment process when considering the management of supervised individuals.

Unpaid work statutory duty

On average 14.8% of the Unpaid Work caseload are recorded as having a disability at any one time. However, there is significant variation when this is broken down by NPS Region^{[footnote 7]}; ranging from 10% in London to 25% in the South West. On average 2.5% of the Unpaid Work caseload are recorded as having a learning difficulty at any one time. However, there is significant variation when this is broken down by NPS Region; ranging from 1.5% in London to 5% in the KSS Region. On average 8.5% of the Unpaid Work caseload are recorded as having a mental health condition at any one time. However, there is significant variation when this is broken down by NPS Region; ranging from 4% in London to 15% in the KSS Region.

For people with disabilities, a full assessment must be carried out by the Probation Service to ensure that an Unpaid Work placement is suitable. There is a duty to create an audit trail to demonstrate at what point access requirements were recognised, to ensure there is accountability in providing a suitable service for individuals. The updated Community Payback Operating Manual will highlight the importance of Probation Practitioners fully considering the specific needs of supervised individuals with a neurodivergent condition in identifying a suitable placement.

We recognise that not all disabilities are visible. We acknowledge that the following disabilities may affect an individual’s day to day life.

• Chronic Fatigue Syndrome (symptoms could be: extreme tiredness, sleep problems, muscle / joint pain, problems thinking, remembering or concentrating
• Epilepsy (possible symptoms: temporary confusion, a staring spell, uncontrollable jerking movements of the arms and legs, loss of consciousness or awareness, fear and anxiety)
• Fibromyalgia (symptoms might include: increased sensitivity to pain, extreme tiredness and fatigue, muscle stiffness, difficulty sleeping, problems with mental processes such as problems with memory and concentration)
• Lupus (possible symptoms: joint pain and stiffness, extreme tiredness that will not go away no matter how much you rest, skin rashes often over the nose and cheeks, weight loss, swollen glands, sensitivity to light, poor circulation in fingers and toes)
• Mental Health (Depression/Anxiety, lack of energy/motivation, low mood, difficulty focusing)
• We also recognise that disability may be linked to neuro-diversity factors rather than physical factors:
• Mental Health (Depression/Anxiety, lack of energy/motivation, low mood, difficulty focusing) and having been sustained over at least a twelve month period
• Learning disability (cognitive ability) and Autistic Spectrum Disorder (including difficulties with personal interactions, maintaining concentration).

The introduction of a statutory duty to consult on Unpaid Work is not expected to disproportionately affect the above groups as the principle of providing reasonable adjustments on the grounds of disability is already fully embedded into practice principles. However, we are committed to continually reviewing this, with Regional Probation Directors reporting against how probation delivery is meeting our Public-Sector Equality Duty.

Gender reassignment

Abolishing senior attendance centres

We do not currently hold data on the use of different requirements, including Senior Attendance Centres, by gender reassignment status. The introduction of a new Equalities Monitoring Tool will enable data to be measured against key metrics and will analyse outcomes based on: age, sex, ethnicity, religious belief and sexual orientation. Probation regions will be able to analyse disproportionate outcomes and put in policies and practices to mitigate these. The management of supervised individuals who have under-gone, or are under-going, gender reassignment is supported by the policy framework on the ‘Care and Management of individuals who are transgender’.

Strengthening supervision power

In so far as the policy will extend to transgender individuals serving a community or suspended sentence order, we believe that the policy is proportionate. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, including when supervising transgender individuals. The management of supervised individuals who have under-gone, or are under-going, gender reassignment is supported by the policy framework on the ‘Care and Management of individuals who are transgender’.

Unpaid work statutory duty

The Care and Management of Transgender Offenders, provides detailed guidance on gender reassignment for all probation staff. EQuiP also provides extensive guidance, but there is limited information relating to staff training and Unpaid Work specifically and we shall seek to address this.

The Equality Information Form (EIF) is mandated for completion at the first point of contact with offenders (usually at court).^{[footnote 8]} The EIF asks “Have you gone through any part of a process (including thoughts or actions) to change the sex you were described as at birth to the gender you identify with, or do you intend to?” The guidance states that “If an individual ticks ‘Yes’… a further discussion must take place to seek written consent in order to share this information with colleagues in the NPS and partnership agencies only when necessary. Probation Practitioners are required to make themselves aware of the information in the EIF, or complete one if not already done for the current sentence.

Following guidance from HMPPS’ National Transgender Lead, the updated Community Payback Operating Manual highlights key extracts from the Equality Act 2010 and the Gender Recognition Act 2004 relating to service users who have undergone, or who are undergoing gender reassignment.^{[footnote 9]}

Marriage and civil partnership

Abolishing senior attendance centres

We do not believe that this policy will have disproportionate impact upon marriage and civil partnership. The interventions that will be used to replace the SAC requirement can be tailored to meet individual need, and the introduction of a new Equalities Monitoring Tool will enable probation regions to analyse disproportionate outcomes and put in policies and practices to mitigate these.

Strengthening supervision power

We do not believe that this policy will have a disproportionate impact on marriage or civil partnership for individuals serving a community or suspended sentence order, as this power is not to be used to extend the outcomes beyond those originally intended by the sentencing court. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, with consideration to be given to personal and domestic circumstances.

Unpaid work statutory duty

We have not identified any equality impacts on this cohort at this stage – we will continue to keep this under review.

Pregnancy and maternity

Abolishing senior attendance centres

Where a person on probation is pregnant, has recently given birth or miscarried, efforts should be made to engage with them in suitable locations as detailed in the blended supervision model. Where possible this should include home visits. The interventions intended to replace the SAC requirement can be tailored to meet individual need and so can be revised to reflect the supervised individual’s personal and domestic circumstances.

Strengthening supervision power

We do not believe that this policy will have a disproportionate impact on marriage or civil partnership for individuals serving a community or suspended sentence order, as this power is not to be used to extend the outcomes beyond those originally intended by the sentencing court. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, with consideration to be given to personal and domestic circumstances.

Unpaid work statutory duty

All people on probation are asked in the completion of the Equality Information Form (EIF) if they are pregnant or have given birth in the last 6 months, the same question is also asked in the Unpaid Work assessment. Clear guidance on managing the specific needs of pregnant women and new mothers is provided in the Unpaid Work guidance manual.

Religion or belief

Abolishing senior attendance centres

It is important for practitioners to enable persons on probation to engage with their faith and this will be taken into account when undertaking sentence planning. The interventions intended to replace the SAC requirement can be tailored to meet individual need and so can be revised to reflect the supervised individual’s personal and domestic circumstances, including religious and faith needs.

The introduction of a new Equalities Monitoring Tool will enable data to be measured against key metrics and will analyse outcomes based on: age, sex, ethnicity, religious belief and sexual orientation. Probation regions will be able to analyse disproportionate outcomes and put in policies and practices to mitigate these.

Strengthening supervision power

We do not believe that this policy will have a disproportionate impact based upon the religious beliefs of individuals serving a community or suspended sentence order, as this power is not to be used to extend the outcomes beyond those originally intended by the sentencing court. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, with consideration to be given to personal and domestic circumstances, including religious and faith needs.

Unpaid work statutory duty

All people on probation are asked in the completion of the Equality Information Form (EIF) if they would like to disclose their religious belief, the same question is also asked in the Unpaid Work assessment. Over a third of people on probation (38%) were either not asked or did not want to disclose their religious belief. A similar proportion (39%) reported no religious belief. Of those that did state their faith, the majority identified as Christian.

Guidance for Unpaid Work staff on making reasonable adjustments e.g. offering placements at different times of day and on different days of the week to allow individuals to schedule attendance around religious commitments, is provided in the Community Payback Operating Manual.

Sexual orientation

Abolishing senior attendance centres

We do not currently hold data on the use of different requirements, including Senior Attendance Centres, by sexual orientation. The introduction of a new Equalities Monitoring Tool will enable data to be measured against key metrics and will analyse outcomes based on: age, sex, ethnicity, religious belief and sexual orientation. Probation regions will be able to analyse disproportionate outcomes and put in policies and practices to mitigate these.

The interventions intended to replace the SAC requirement can be tailored to meet individual need and so can be revised to reflect the supervised individual’s personal and domestic circumstances.

Strengthening supervision power

We do not believe that this policy will have a disproportionate impact based upon the sexual orientation of individuals serving a community or suspended sentence order, as this power is not to be used to extend the outcomes beyond those originally intended by the sentencing court. Additional guidance will be published to provide clear advice for probation practitioners regarding the application of the power, with consideration to be given to personal and domestic circumstances, including sexual orientation.

Unpaid work statutory duty

All people on probation are asked in the completion of the Equality Information Form (EIF) if they would like to disclose their sexual orientation.^{[footnote 10]} The Unpaid Work assessment requires the Probation Practitioner to consider risk issues, including whether hate based behaviour has been displayed by the service user. This will enable group dynamics to be safely managed. The Unpaid Work guidance manual specifies the need for placements to be arranged which should be recognised by the service user as serving the community that they identify with.

Equality considerations

Direct discrimination

We hold the view that none of the probation reform measures are likely to be directly discriminatory within the meaning of the Equality Act 2010 as they apply equally to all offenders. The proposals will not result in people being treated less favourably on account of any protected characteristic.

Indirect discrimination

Indirect discrimination occurs when a policy applies equally to all individuals but would put those sharing a protected characteristic at a particular disadvantage compared to those who do not. Our initial assessment recognises that some individuals with protected characteristics are likely to be over-represented in the groups of people the Bill will affect as a result of the demographics of the existing offender population.

For example, we know that offenders with certain protected characteristics are over-represented in both the adult and youth offender populations in both custodial and community settings when compared with the general population as follows: those who are male, adults aged 18-39, those with a disability (including those with mental health issues and neuro-divergent offenders) and people with a Black or Black British ethnicity. Those from a mixed ethnic group and Muslim offenders are also over-represented when compared with the general population. Men are significantly over-represented with only 5% of offenders being female, and a significant and growing proportion of the prison population are over 50.

This over-representation applies to some of the offender groups that will be affected by the Bill’s measures. The more specific ways in which probation reform measures may indirectly affect offender groups is outlined below, together with how we consider the impacts are likely to be mitigated where necessary.

Senior attendance centres

Our plans to abolish Senior Attendance Centres and Senior Attendance Requirement would only affect young adults between the ages of 18 and 24. However, the Offender Management Statistics Quarterly shows that since 2017, approximately 80 offenders per month have been sentenced to an Attendance Centre Requirement, resulting in c.950 cases annually (less than 1% of all Community Order and Suspended Sentence Order starts).^{[footnote 11]} Given their low usage, we do not consider that this measure will result in any particular disadvantage since these facilities were not used particularly often. The alternative requirements such as the Rehabilitative Attendance Requirement will better meet the rehabilitative needs of young adults. In future the assessment process for young adult offenders will consider more fully the individual’s risks, needs and responsivity issues. With the appropriate referrals being made via the new Structured Interventions and Dynamic Framework Interventions.

(https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/796919/probation-2018.ods).

Strengthening supervision powers

We are proposing to clarify the discretionary supervision powers of Responsible Officers. Assuming that the offenders to whom this measure will be applied are similar in makeup to the overall probation caseload, individuals affected by this change will be disproportionately young, male, and from an ethnic minority compared to the general population in England and Wales. However, the Tiering Model used in offender management is designed to allow for changes as new evidence emerges around appropriate supervision levels for different groups. This should help ensure appropriate interventions and supervision is undertaken by all Responsible Officers when managing all offenders (including young, male and ethnic minority offenders). For the purposes of the PCSC Bill, we are only considering the principle of legislative change, and will further consider the equalities implications within the scope of operational guidance in the future. We do not therefore consider that this principle of legislative change is likely to put any offenders with protected characteristics at a particular disadvantage.

Unpaid work statutory duty

We are proposing to introduce a new statutory duty which will require probation officials to consult key community stakeholders on the design and delivery of Unpaid Work. Part of this process will be ensuring that the list of community consultees represent a wide ranging and diverse portion of the community, in line with the requirements of the Equality Act. Whilst the duty itself does not discriminate or give rise to disproportionality we know that Unpaid Work requirements are not split evenly across characteristics such as age or gender. Therefore, whilst young men are far more likely to have an Unpaid Work requirement than young women in England and Wales, we must ensure that Unpaid Work activities are appropriate for all.

Discrimination arising from disability and the duty to make reasonable adjustments

We do not consider that the measures are likely to result in any discrimination against people with disabilities.

Advancing equality of opportunity

We believe some of these measures should advance the equality of opportunity, the measure to improve community involvement in Unpaid Work will likely be of benefit to everyone.

Fostering good relations

We have considered the implications of the Probation Reform measures on fostering good relations and suggest that the proposals aimed at protecting the public (Supervision powers) and increasing community involvement (UPW statutory duty) will support this limb of the duty.

1. Male and female populations ↩

2. Analysis of the UPW cohort shows that a 10% of the UPW cohort are women. ↩

3. The maximum time travelling under supervision, considered reasonable to be credited against Unpaid Work hours is 60 minutes each way. Where more than 30 minutes is spent travelling to a pick-up point there should be a corresponding reduction in time spend in a Community Payback vehicle, up to the 90-minute maximum. Conversely a maximum 90 minutes total travel time can be used where the service user reports directly to a work site. ↩

4. Analysis of the UPW cohort shows that 31% of the UPW caseload are aged between 18 and 24. ↩

5. Population of England and Wales ↩

6. According to figures for the Unpaid Work cohort, broken down by ethnicity ↩

7. There could be a number of reasons for this variation because the data is reliant on staff requesting this information, Service Users choosing to disclose and accurate recording of that information. ↩

8. This has been mandatory since 2016. ↩

9. Analysis of the UPW cohort shows that 0.12% of the UPW caseload report identifying as transgender. At any one time the maximum number of transgender Service Users on a Region’s caseload was 38. ↩

10. Analysis of the UPW cohort shows that a third (34%) of the UPW cohort either chose not to disclose their sexual orientation or it is not recorded ↩

11. [Ministry of Justice, Probation Statistics 2018, Table A4.8] ↩