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The impact of the COVID-19 pandemic on equalities and human rights
JOINT SUBMISSION FROM SOCIAL WORK SCOTLAND AND SCOTTISH ASSOCIATION OF SOCIAL WORK TO THE SCOTTISH PARLIAMENT’S EQUALITIES AND HUMAN RIGHTS COMMITTEE INQUIRY
13th January 2021
Social Work Scotland is the professional body for social work leaders in Scotland. The Scottish Association of Social Work (SASW) is part of the British Association of Social Workers, an independent membership body for social workers across the UK. Both organisations work closely with partners to shape policy and practice and improve the quality and experience of social services. We are responding to this inquiry together, bringing together the views of frontline social workers and managers who are employed in the public, private and voluntary sectors, as well as those operating as independent practitioners. Our joint membership is diverse, and being located across all parts of Scotland, experiences throughout the pandemic have been highly variable, in line with the differences decisions and approaches taken by local areas. We profile in this submission here the common themes to emerge from their feedback over the past ten months.
QUESTION 1: HOW HAVE GROUPS OF PEOPLE BEEN AFFECTED BY THE VIRUS?
In assessing COVID-19’s impact on equalities and human rights it is helpful to distinguish between the effects related to (a) the virus and disease itself, and (b) the actions taken by public authorities to contain the spread of the virus and protect vulnerable groups, access to emergency services, etc. Social workers have been involved throughout the pandemic in mitigating the impacts seen in both domains (albeit the majority of our activity has focused on the issues created by state efforts to contain the virus, which have affected every member of society in some way).
(A) Impact of the disease
As has now been well documented, the disease COVID-19 does discriminate. It has, to date at least, disproportionately affected older people, those with underlying health conditions, members of our Black, Asian, and other Minority Ethnic communities, and people with low incomes or precarious employment (e.g., zero-hour contracts). The reasons for this prejudice are various, including, in these groups, higher than average numbers of people living together under the same roof (be it a care home or family home), exposure to the virus through public facing roles (e.g., public transport workers, nurses and healthcare assistants, etc.) and above average rates of pre-existing co-morbidities (e.g., diabetes, obesity, hypertension). These factors coalesce together into an increased risk of catching the virus, and then an increased risk of the virus manifesting a serious or fatal response.
The impact of these increased risks has manifested in many ways, with individuals and families affected by some or all of the following:
Stress and anxiety
Loss of income
Loneliness (reduced human contact and self-isolation)
Recovered but with “long covid”
Time in hospital
Decline in mental health
This is not an exhaustive list, but it illustrates that, for those who have caught the virus the potential impact on their human rights cannot be more serious, with loss of mental and physical health, work, and even life. And with the knowledge that the COVID-19 virus does not affect all groups in society equally, but that all groups are interconnected, it is understandable that governments around the world have taken such drastic all-of-society action in their efforts to contain it.
(B) Efforts to contain the virus
The public health measures introduced to slow the spread of the virus only have historical comparators in wartime. Every aspect of life and every individual, family and community has been affected. The scale and severity of restrictions (on the economy, social contact, movement, etc.) has meant that the virus, directly or indirectly, has impacted the rights and wellbeing or every person in the UK. But as with the discriminate impact of the virus, affecting some groups more than others, the impact of efforts to contain it have not fallen evenly on society. As social work practitioners and managers we have had a front-line perspective on this throughout the pandemic; particularly in respect to people who are vulnerable or need additional support, for whom we provide or coordinate services. This includes children, families, parents, carers, adults with disabilities, older people and people involved in the criminal justice system.
Among the many impacts of restrictions over the past year, of particularly note in respect of this inquiry are:
Increased levels of poverty
Digital poverty / inequality
Disruption to referral routes for social work and social care
Disruption to social work, social care and community services
Increased isolation and loneliness, impacting on mental health and wellbeing
Increased pressure within families
As with the impacts of the virus itself, this list is far from exhaustive. What we have tried to illustrate is that the restrictions imposed have surfaced the significant inequalities which existed in society before the pandemic. And, moreover, that the fulfilment of people’s human rights relies on a broad base of civic and public services being accessible. This is particularly true for people and families with fewer socio-economic advantages. Remove the scaffolding from around individuals and communities, and the structure is less resilient to major external and internal stresses.
QUESTION 2: WHICH GROUPS HAVE BEEN DISPROPORTIONATELY AFFECTED BY THE VIRUS AND THE RESPONSE TO IT?
Children, as a cohort, have been particularly affected because of the disruption to education (from early learning and childcare through all stages of school) and the dramatic reduction in opportunities for play, peer and extended family interaction, creativity, learning, travel, etc. These opportunities, complementing formal learning, shape the adults we become. The absence of school and other child/youth activities has also significantly reduced the chance to identify issues early and offer help. That is particularly problematic for young people’s mental and physical health. The long-term legacy of these COVID-19 months is yet to be seen, but it is children and young people whose lives will be most shaped by it. The world of employment will be changed (possibly with fewer of the sort of jobs young people begin with), and public debt built up to underwrite the government’s response will shape public and political debate for decades to come. At an individual level, disruption to schooling and issues with mental health may determine many future choices.
Within the cohort of ‘all children’, specific groups have been affected more than others. For example, those affected by domestic abuse. Levels of domestic abuse in Scotland have been a persistent concern for social work, charities and policy makers for many years, but on the basis of calls to third sector helplines, the pandemic has led to increased prevalence. This is consistent with what we know about domestic abuse, and its relationship to wider stressors within the family. With services reduced or closed, and people encouraged to isolate as much as possible, we have reduced our collective ability to spot and respond to cases at the early stages. This has limited our capacity to protect the rights of children (and others impacted by abuse within the household). Our experience suggests that much greater support is needed for non-abusing parents and children, and that we must engage much more effectively and assiduously with perpetrators. Many local authorities and organisations were building these strengths-based approach (such as the internationally recognised Safe and Together™) at the start of the pandemic, but unfortunately work in some areas has had to be delayed to accommodate other priorities.
The true extent of child sexual abuse and child criminal exploitation through the pandemic has been hard to gauge, but we expect it to have increased. Third sector colleagues and the police draw attention to the significance of interaction between technology-assisted and direct contact abuse, and with the move of children’s lives online, the increased risks. The pandemic has underlined the need for a closer examination of the context of abuse outside the family, and a consideration of how to intervene in both physical locations and online platforms (a theme explored in a recent Social Work Scotland hosted seminar). More generally, ensuring child protection during COVID-19 has been challenging, with the everyday monitoring provided by schools and other universal services reduced or removed. Social work professionals themselves have been restricted in their ability to interact with families, with reductions in home visits, supervised contact, etc. Colleagues report concerns about patterns of Forced Marriage, Female Genital Mutilation and Honour Based Abuse.
There has also been a disproportionate impact for children involved in the Children’s Hearings System and courts. Permanence decisions have been delayed, existing Orders have been rolled forward without expiry date (meaning that families risk being subject to state intervention longer than necessary), and only priority case have been heard by Children’s Hearing panels, potentially limiting access to services from social work and others. Figures provided to the Scottish Government (as part the monitoring of COVID-19’s impact) indicate that since March 2020 there has been a significant reduction in the number of children becoming looked after away from home. At this stage there is not enough data and intelligence to confirm whether this is as a result of system changes or limited access to resources and not necessarily because of reduced need or better practice. This needs to be explored to ensure that children’s rights are not at risk from inaction.
The challenge of promoting the relationships and wellbeing of children looked after away from home has been accentuated by COVID-19. Social Work Scotland has been central to the development of a framework for decision making about contact, assisting practitioners make extremely difficult decisions. For example, there have been significant challenges around contact, for example between children and birth parents, balancing the benefits with risks, such as spreading the virus to foster or kinship carers (often an older population) or between different parts of the country (which may have different rates of infection and restrictions in place). The limited number of safe physical environments for indoor contact has further restricted options.
Social workers have consistently reported how stretched and affected many kinship and foster carers, and the children in their care, have been, with individuals feeling isolated and disconnected from their normal networks (formal and informal) of support. Local areas have done creative work using virtual support and new models of practical, material help, but for many of these families it has remained a very difficult year. We take heart from the adaptation and resilience the families have shown, and the positive stories emerging of, for instance, effective family group decision making taking place which have kept children out of the care system.
Families with children who have complex physical or learning needs have been particularly impacted by the closure of educational settings, having to assume 24 hour responsibility for care and education. There are specific risks for these families in terms of isolation and burn out without frequent opportunities for support and respite. And for those at or near school leaving age, the crucial transition planning for people with additional support needs (enabling them to make successful moves into further and higher education, or employment) has been disrupted, opportunities restricted.
Adults living in care homes, whether older people or adults with complex needs, have been disproportionately affected by the virus and the response. In the first phase on the pandemic, there were high levels of excess deaths (compared to the weekly 5-year averages for 2015-19, not all of which were recognised on death certificates as COVID-19 related during the period before testing became more widely available.
Some social care workers in residential homes, and also in the community, have also died as a result of contracting COVID-19 through their work, as sadly has been the case for other groups of essential workers.
From a social work perspective, it became increasingly important to ensure that people’s human rights and mental health were being considered alongside (rather than secondary to) clinical excellence and infection control. Issues as varied as discharges from hospitals to care homes, restrictions on visits, limited interaction within homes, mass testing, use of Do Not Attempt Cardiopulmonary Resuscitation forms, have all presented complex and nuanced decision making. And they have proved highly problematic for many care homes, especially those supporting people with cognitive needs. The enhanced oversight of care homes duty, placed on Chief Social Work Officers and other professional leaders, was an attempt to ensure a balanced assessment of risks, rights and needs in shaping local strategies. As we write, the vaccination programme is being rolled out through care homes, and we hope this will enable residents to access their rights to see family and friends, and to ensure they get the full range of services and supports they need.
At the core of the social work role is public protection; assessing risks and benefits in an ecological model, with the aim of securing the best outcomes for an individual, with their needs and wishes met and interests protected. In some instances, social workers are empowered to take actions to protect the interests of an individual, possibly bringing them into conflict with the individual or their carer / family, who wish to take a different course of action. This is a difficult but essential role in a society where not all individuals, whether due to incapacity or circumstances, are in a position to determine their best interests alone. And while families have a undisputed right to inform and lead decision-making in such instances, it is the case that they do not always have access to all the information, or necessarily have the rights, needs and interests of the individual as their primary concern. Over the course of the pandemic, with the social work profession’s ability to perform this role has been restricted, leading to concerns about the welfare of such as for adults with incapacity. Due in reduced reporting channels (fewer agencies and primary care contact with people and families at risk of crisis) and restrictions on movement and interaction, it has been difficult in some cases to ensure the rights and welfare of some individuals’ are being maintained.
Early intervention and community supports are critical to maintaining good mental wellbeing and mental health. Where these are not available, we can expect to see more people reaching mental health crises. This is likely to be compounded where the economic situation is worsened. With people’s mental health needs going unmet, detention – a deprivation of an individual’s liberty – is being considered more frequently than we, as a professional group involved in such decisions, would like to see it. As officers of local authorities within partnership arrangements, Mental Health Officers (specialist social workers with additional qualifications in mental health) are not sufficiently empowered to ensure provision meets assessed need. To ensure the rights of individuals with mental health issues are upheld, MHOs (and other relevant professionals) need access to specialist and community resources, over which people are offered choice and control. We believe that decisions regarding detention should be made after face-to-face assessment of patients, but we are aware that due to staffing constraints, this is not always the case. Whilst the number of people being detained due to their mental health has risen during the pandemic, this is in line with year on year rises. There is evidence, however, from the Mental Welfare Commission that some of the safeguards around detention have been used less frequently than previously. We are concerned about the critical shortage of both MHOs and “Section 22” medical professionals. We note that the Tayside Independent Review report “Trust and Respect” was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.
People who are homeless initially benefitted from the programme to ensure that everyone was off the streets, and the route map for “Everyone Home” has been developed to make asking about homelessness an expectation across public services. However, in order for this success to stand beyond the pandemic, public services must continue to be resourced appropriately to attend to the multiple underlying structural causes of homelessness (including additions, mental health, debt, etc.). Otherwise, we risk returning to pre-pandemic levels of homelessness (or higher, considering the precarious financial situation many people face), with the additional challenge of a diminished voluntary sector, its finances limited after a year of reduced income.
(C) Adults involved in the justice system
Justice Social Work delivers reports to Scottish Courts, provides or commissions community-based programmes as an alternative to prison, and is responsible for a range of expert risk assessment support to the police, prison service and Parole Board. Requirements for physical distancing, and the universal impact on staffing through sickness, isolation and redeployment, have reduced the ability of justice social workers to deliver group programmes and coordinate unpaid work activity. This has a very significant impact, in terms of rights and equalities, on the individuals subject to relevant courts orders, effectively extending sentences and prolonging involvement with the justice system.
Both Social Work Scotland and SASW have articulated concerns to the Scottish Government around the backlog of community order ‘unpaid work’ hours. We believe that without a systematic reduction in the number of outstanding unpaid work hours (through revocation or variation of orders) there is a major risk that Justice Social Work (JSW) will be overwhelmed, with serious consequences for the wider justice system and the rights of both social work professionals and individuals and families, and victims. Whilst some funding has been made available to buy in support from the Third Sector, this will not release the number of hours necessary to meet the backlog in demand.
Before the Coronavirus pandemic there was an increasing focus on expanding early intervention measures such as Diversion from Prosecution and Structured Deferred Sentences which help individuals to avoid unnecessary contact with the criminal justice system and deliver swift interventions which can interrupt a cycle of offending. Many of the strategies now in place to deal with the backlog within the justice system require heavy input from CJSW, but simultaneously the capacity of CJSW has reduced.
People in prison have experienced significant additional curtailments to their rights as visits, time out of cell, meaningful daily activity and access to fresh air have all been reduced. Numbers of people on remand have increased as has the length of time people are remanded impacting on people’s lives, housing, work finances and relationships. Children who have a parent or sibling in prison will experience the removal of the person from their lives in a more extreme way than even prior to the pandemic.
QUESTION 3: HAVE THERE BEEN SPECIFIC EQUALITY OR HUMAN RIGHTS IMPACTS ON GROUPS OF PEOPLE AS A RESPONSE TO THE VIRUS?
The Scottish Human Rights Commission (SHRC) recently published a report into changes to social care provision during COVID-19 and its impact on human rights. It details the experiences of individuals receiving health and social care support, with a focus on the rights of persons with disabilities, older people, carers and children. The testimony of many of those who participated in the research is distressing, highlighting the serious consequences for individuals when support cannot be accessed.
The context around these experiences were the efforts of NHS, local authorities and independent care providers (working together as Health and Social Care Partnerships) to ensure support was available to meet all assessed (and anticipated) need, within safe staffing levels. Plans took into account high rates of staff absence, due to sickness and isolation. The restrictions, and necessary steps to protect staff, meant that many social workers and social care staff would be limited in their ability to work. The focus was on protecting critical services for those most in need. However, the timeframe for how long this would be needed was not clear at the outset, and the working assumption was that measures to reduce care packages for some (to ensure some access for all) would be required for weeks, not months. It is clear now that the impact of these measures varied across Scotland, reflecting different levels and types of pre-pandemic service provision and workforce demographics. But in all areas of Scotland those requiring social care support, and those caring for them, have been disproportionately affected by the pandemic because of the limits the reductions of support place on an individual’s independence (beyond the national restrictions everyone has had to adapt to).
Because many face-to-face support services such as day centres and support groups had their operations significantly reduced as a result of public health requirements, the pressure of continually caring for people during the crisis will also have had an effect on the wellbeing of carers. Carers who support their family members or friends to live independently have experienced isolation and reduced support, with many increasing their caring hours to protect the supported person from additional footfall into their homes and related risks of exposure to the virus.
The SHRC report calls for the social care system to be reimagined as a dynamic interplay within a social infrastructure which supports citizens’ human rights as individuals within families and communities. SASW and Social Work Scotland agree strongly with this vision, but take this opportunity to emphasise that it is only possible when the system is populated by sufficient numbers of skilled people, committed and enabled to deliver the best outcomes for individuals. Such a system, requiring a significantly larger ‘workforce’, is not possible within current funding levels. A return to pre-COVID-19 structures and mechanisms of support, even if funding were increased, would not address the issues flagged by the SHRC report.
It is likely that one of the effects of the pandemic will be to increase the number of people needing health and social work and social care support as a result of:
We take heart from examples highlighted in the Care Inspectorate’s report, ‘Delivering care at home and housing support services during the COVID-19 pandemic’, where local partnerships successfully adapted and flexed their support to meet people’s needs during the pandemic. Teams in local government and the voluntary and private sectors have innovated and adjusted, put people’s needs before contractual hours. The capacity for change and positive reform is in place, and we look forward to the upcoming discussions about how to realise that, in response to the Independent Review of Adult Social Care.
Question 4: What do the Scottish Government and public authorities (e.g. local authorities, health boards etc.) need to change or improve: as a matter of urgency & in the medium to long term?
This question frames a critical debate in an unhelpful way. Locating responsibility for change and improvement solely with Scottish Government and public authorities not only presumes that they have the capacity / resources to effect changes, it encourages us all to see the problem as ‘theirs’ to resolve. The issues we have profiled in this response, such as poverty, structural inequalities and the public-civic infrastructure which give effect to people’s human rights, can only be addressed through both political and societal action. As with climate change, or changes to consumption that limit our impact on biodiversity, public authorities of all kinds are key players. But in democracies like Scotland, they move and act within a space we, the public, give them. Calling for public authorities to effect changes that will require significantly more resources, without our clearly accepting the need to provide those resources (through taxes, government borrowing or reallocation of existing spend), will simply perpetuate the public policy debates we have had for the past ten to fifteen years.
The funding of social care
Social Work Scotland and SASW are particularly concerned about the impacts of the deepening financial crisis in social care, which we have highlighted recently in our respective submissions to the Independent Review of Adult Social Care (IRASC). The crisis also exists in children and families social work services, and criminal justice social work, which are not within the scope of the Independent Review of Adult Social Care.
Adult social care spending per head in Scotland has fallen dramatically for Scotland’s older people, less so in England but more than it has in Wales (see graph in download here).
Spending per head on adults aged 18-64 – mainly people with learning disabilities or physical disabilities, or in need of mental health support — has fared better, but in Scotland is back to the 2010-11 levels whilst the numbers of people living with disabilities, or with mental health problems, have both increased in Scotland, as in the rest of the UK. (The figures in the graph come from the Treasury’s Public Expenditure Statistical Analyses 2020).
Social Work Scotland’s submission to IRASC on Demographic Change and Adult Social Care Expenditure in Scotland is mostly concerned with the Scottish Government’s own H&SC Medium Term Financial Framework (2018), which estimated the increased demands at 3.5% for adult social care as a whole, and 1% for the NHS.
We found that the estimated additional spend on 3.5% per year for adult social care is well supported by research in England by the London School of Economics using sophisticated modelling from survey data not available in Scotland. That also shows that the additional demand for services for younger adults with a learning or physical disability, due largely to improved longevity, is at similar annual percentage increases as demand from older people.
However, our analysis does not support the lower increases for the NHS in the H&SC Medium Term Financial Framework – these are 1% per year for demography, compared to estimates by the Institute for Fiscal Studies of 2.2% per year for England and the UK as a whole (in their major study Securing the future published earlier in 2018).
Our analysis also does not support the annual workforce increases set out in the Scottish Government’s Integrated Health and Social Care Workforce Plan for Scotland published in December 2010, which stated that:
Those figures cannot be found in the MTFF and, we believe, are incorrect. In any event, Scottish Government funding to councils for adult social care has not been increased to the level required to meet demography, yet alone address the unmet need that has accumulated for survivors of the decade of austerity. Increased funding for social care needs to fully recognise the impacts of demographic change, in line with the Scottish Government’s own medium-term planning, and on a corrected basis for the NHS in Scotland.
The role and status of social work
Social work is one of the few ‘key worker’ professions which is, when able to operate as conceived, proactive and person-led. It exists (and in legislation is empowered) to take action in defence or support of people made vulnerable by their circumstances. Those we work with may be less likely to be heard, and may struggle to stay afloat when the scaffolding of support is stripped away (as it has been during COVID-19). Social work sees people in their own individual context, recognising that an individual’s relationships, strengths, interests, etc. constitute the person, and that to give meaning to their human rights is to reinforce and promote those assets. But we must also balance individual rights with those of others, and consider the risks of certain actions to the individual themselves, their families and wider society. Our role must be to enable those people to have a voice, and to provide protective support or intervention where that becomes necessary.
As illustrated above, before COVID-19 social work (and the wider social care system it underpins) was already facing significant financial constraint; demand and aspiration not matched by available budgets. The 2019/20 COSLA report Investing in Essential Services, highlighted the challenges local authorities face to meet the outcomes and targets identified in the national performance framework within existing resources, referencing specifically child poverty and vulnerable adults. The strain that the social care system is under, and the conditions in which care professionals must practice, has been well documented in a range of reports from academics and institutions. The latest such report from the University of the West of Scotland (UWS) (Decent work in Scotland’s Care Homes) highlights a sector facing ‘systemic issues, a lack of respect and in need of cultural change’.
Within the current landscape, social work professionals – trained to respect and uphold human rights and work alongside individuals and communities (balancing and holding needs, risks and interests) – find themselves working in systems which can force them to be ‘assessors’ of risk and gatekeepers to over-rationedrvices. This not only means we fail to realise the human rights and outcomes potential of social work, but we slowly erode the enthusiasm and commitment of the professionals themselves.
While there has been positive innovation, acceleration of developments and much useful learning from the past year, the pandemic has made it harder to work alongside people and families at the challenging points and transitions in their lives. This has posed a unique challenge to social work, which is support based within and upon relationships. Feedback from our members has highlighted a number of further issues for the profession, limiting our ability to provide support and services and significantly affecting the working conditions and wellbeing of social workers. We would welcome any opportunity to discuss this further with the Committee.
Social Work Scotland’s Chief Social Work Officer (CSWO) committee has reported that the pandemic’s impact on the social work profession has been to compound pre-existing issues. These include dealing with real term reductions in budgets (which in turn increases workload on individuals), difficulties in recruitment, lacking visibility and authority in key decision-making forums, the disparity in social work and social care’s pay and conditions between health and social care partnerships. The split professional leadership across adults, justice and children and families is also seen, by some, to weaken oversight and coordination.
In July 2020 the Social Workers’ Union reported that one third of social workers are considering leaving the profession as a direct result of the pandemic. The union released an action plan calling for increased mental health support, a social work recruitment drive and a pledge not to re-introduce austerity measures post-pandemic.
As we move through and, hopefully, out of the pandemic, we would like to see and contribute to a re-imagining of the role and functions of public services. People are not simply ‘rights holders’ and professionals (such as social workers) are not simply ‘duty bearers’; we are all people, facing the challenges presented by the context, trying to deliver the optimum outcomes for individual and society, while having to balance competing interests, rights, demands and priorities. Similarly, public services must embrace greater creativity in how they support people to give meaning to their human rights and find genuine wellbeing. That will require a workforce who feel equipped and empowered to do what they were trained to do. The Human Rights Taskforce due to report in March 2021 will, no doubt, be considering a range of ways that public services and others can achieve this, and the Independent Review of Adult Social Care and The Promise are re-imagining support services for key groups.
For further information, please do not hesitate to contact:
Social Work Scotland
 See World Health Organisation website: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it
 See Social Work Scotland supplementary submissions to the Independent Review of Adult Social Care: https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-1-DEMOGRAPHIC-CHANGE-AND-ADULT-SOCIAL-CARE-EXPENDITURE-IN-SCOTLAND.pdf; and https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-2-ASC-EXPENDITURE-IN-THE-DECADE-OF-AUSTERITY.pdf.
 Coronavirus (COVID-19): children, young people and families – evidence and intelligence reports (various)
 The IRISS summary of a University of Edinburgh/City of Edinburgh Knowledge exchange project illustrates the value of this rights based approach in the most urgent of circumstances https://www.iriss.org.uk/sites/default/files/2020-06/recognition_matters_briefing_june_2020.pdf
 National Records of Scotland: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/weekly-and-monthly-data-on-births-and-deaths/deaths-involving-coronavirus-covid-19-in-scotland (Week 53)
Pre-Budget Scrutiny 2021-22: Justice Committee call for views
PRE-BUDGET SCRUTINY 2021-22
SUBMISSION FROM SOCIAL WORK SCOTLAND, TO SCOTTISH PARLIAMENT JUSTICE COMMITTEE’S CALL FOR VIEWS
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to feed into the Justice Committee’s scrutiny of the Scottish Government’s budget for 2021-22.
Social Work Scotland supports the Scottish Government’s Community Justice: Reducing Re-offending priorities set out in the Scottish Budget 2020 – 21, with its aim of “increasing the use of community-based interventions and reducing the use of imprisonment”. Research points to “a number of studies (that) have found […] community sentences are more effective in reducing reoffending than short-term prison sentences”. However, whilst we endorse the presumption against short term sentences (PASS) we do not yet see the paradigm shift required in funding community sentences in Scotland that evidences a commitment to putting policy into practice. At 24 October the prison population was 7,439.
In this current year we welcomed the specific additional funding for the Multi-Agency Public Protection Arrangements (MAPPA), to further extend bail supervision, and to develop or establish structured deferred sentence (SDS) schemes, which came in Part 2 of the grant allocation (referred to as s27) to criminal justice social work (CJSW). Prior to the Coronavirus pandemic there was an increasing focus on expanding early intervention measures such as Diversion from Prosecution and SDS. We support this for many reasons, e.g. they help individuals to avoid unnecessary contact with the criminal justice system and they enable swift interventions which can interrupt a cycle of offending and/or prevent further offending. However, looking ahead, increasing the number of cases without a concomitant increase in resources will undermine the potential for successful interventions. Many of the strategies now in place to deal with the backlog within the justice system require heavy input from CJSW, but simultaneously the capacity of CJSW has reduced; (we discuss this further later in this submission).
Moreover, specific programmes of activity require greater investment if they are to deliver socially significant outcomes. For example, work currently underway to implement the expansion of electronic monitoring (EM) capacity, for bail and as a new requirement of a community payback order (CPO), promises to reduce the high numbers on remand in Scotland’s prisons and support robust and effective community disposals. However, as the Electronic Monitoring in Scotland Working group report makes clear, “if longer term desistance is required it must be combined with measures which help individuals to change their behaviour”. The expansion of EM will require additional funding to ensure this support is provided by both statutory and Third Sector services. Not to do so risks undermining the efficacy of EM policy.
The Scottish Budget 2020 – 21 refers to “appropriately resourced community-based interventions” in order to achieve the community justice priorities. We argued in our submission to the Justice Committee in September 2019 that “Despite the seismic change in the demands and requirements placed on CJSW since the early 2000s, there has not been a comprehensive review to quantify and accurately cost the component parts of the work CJSW does”. This state of affairs has not changed, and the perspective of CJSW managers and practitioners (the people SWS represents) is that current levels of funding do not accurately reflect the true cost of delivering a Community Justice agenda. This particularly applies to the core of CJSW work, such as CPOs and the associated delivery of programmes such as the Caledonian System for perpetrators of domestic abuse and Moving Forward: Making Changes (MFMC) for sex offenders.
The fact remains that unless and until this systemic underfunding is addressed, the ability of CJSW (in partnership with the third sector) to consistently provide high quality interventions is restricted or reduced. To illustrate, in reference to the Caledonian System mentioned above, funding for the original 13 local authorities involved has flatlined since its inception in 2011. Consequently, one local authority, Falkirk, is dismantling the Forth Valley Programmes team they host (on behalf of Stirling and Clackmannanshire) as the costs of running the service far outweigh the funding received. Falkirk can no longer afford to subsidise the funding from the core CJSW grant allocation. (Moreover, funding from Scottish Government for this flagship programme to tackle domestic abuse is still not available to all 32 local authorities leading to a postcode lottery for perpetrators and victims.) This is not an isolated example.
Without question there is a rich and diverse array of services provided by the Third Sector that are available across the country. We support the current delivery model where CJSW services procure and commission services from Third Sector partners according to identified local need and priority, e.g. for employability services for individuals that have offended, mentoring services or offending behaviour programmes. We would welcome increased core funding to CJSW to unlock this potential, building on the community justice partnership model that is now well established, implementing plans which are based on local needs assessments.
Social Work Scotland set out the impact of the pandemic relating to unpaid work in our position paper to the Cabinet Secretary on 16 July. We understand this was forwarded to the Convenor of the Justice Committee on 20 July. We concluded that due to the accruing backlog of hours (now approximately 720,000) and the reduced capacity resulting from Scottish Government restrictions relating to Coronavirus that there was an urgent need to proactively address the pressures faced by CJSW. We made it clear that action was required under the Coronavirus (Scotland) Act 2020 to vary existing orders relating to unpaid work or other activity to the total number of outstanding hours to be worked by 450,000. This remains the case.
However, the pandemic continues to affect all aspects of CJSW business. During the initial phase of lockdown staff, particularly those facilitating unpaid work, were redirected to assistant with the emergency response. COVID-19 has reduced our capacity to deliver all services, particularly those which require face-to-face activity or which are difficult with social distancing. Options are also limited by the individual restrictions involved with track and trace, local lockdowns, and pressure on the use of buildings and associated health and safety requirements. This means the number of staff in an office at any one time is reduced by up to two-thirds in order to protect both staff and individuals. Criminal justice social work reports and assessments take longer and whilst many areas have re-started group work this is with much reduced numbers. Some individuals are now finishing their CPOs or prison licence without completing crucial offending related interventions, e.g. sex offending programmes – “There is accruing evidence that offenders who do not complete treatment are at greater risk of recidivism than those who do complete treatment”. The Third Sector and other statutory services have been similarly affected.
It is important to remember that when we talk about the ‘resources’ required for most public services we are actually talking about people; bodies on the ground, with the necessary skills, who can do the work. This is particularly true in CJSW, where typically 70 – 80% of overall budgets is personnel. Whilst private business has the autonomy to reduce their activities (however painful that might be financially), public bodies must still meet their statutory duties, and CJSW cannot reduce the demand on our services.
This will not change in the foreseeable future, and even if a vaccine were available soon, we expect the impact of the 2020 pandemic to affect CJSW capacity and activity throughout 2021/22 at least. Indeed, crucially, the backlog of outstanding court business (due to closures of courts this year) will extend far beyond 2021/22 – modelling seen by SWS suggests that relative to the baseline of 2018/19, for example, there will be a significant year-on-year increase in CPOs until at least 2025 of up to 38%. Therefore, urgent action is required now by the Scottish Parliament to allow all justice sector agencies (a whole system approach is critical) to put plans in place to address the current and looming crisis. From a CJSW perspective, the risk of not doing so will lead to services being overwhelmed, individuals not receiving the vital services and interventions they require with a concomitant increase in the risk of reoffending. This will, in turn, undermine the confidence of the judiciary and the public in community sentences. And we would stress that there is not a viable alternative to community justice. Prisons are not only much more expensive, but also less effective in delivering the changes in individual behaviour a modern criminal justice system must seek to deliver. It we are, collectively, interested in ‘value’ from our public spending, our efforts must be focus on ensuring our community justice infrastructure is fit to meet the demand we put on it.
Over the last few months there has been significant strain in existing CJSW budgets. there have been additional costs to employ temporary, sessional staff to increase capacity in unpaid work squads. This is because CJSW has had to limit the number of individuals a supervisor can safely supervise, and due to a decrease in the availability of individual placements. There have been costs associated with making changes to buildings (new doors, flooring, chairs etc.) to meet health and safety guidance, e.g. increased cost for PPE, cleaning materials, transport for unpaid work, Portaloos (where public toilets are closed), installation of Perspex screens in interview rooms, the upgrading of IT connectivity – Smart Phones and headsets as well as equipment for safe working from home (chairs, desks etc.), increased welfare need and associated payments, predominantly related to mental health and drug and alcohol, and other essentials for individuals (e.g. phone, food etc.).
CJSW continue to use phone and virtual platforms to engage with individuals. However, for the majority of individuals they need to be seen and work needs to be carried out directly with them. We know that this professional relationship is critical to effective interventions.
CJSW will need to manage the balance between the reduced capacity for staff to be in buildings, working from home, and having sufficient staff to cope with the expected increase in workload due to the backlog of court business, on top of the existing backlog of work. There will be the need to increase staffing to meet the demand and the reduced capacity in order to ensure individuals complete their unpaid work hours and receive the interventions on orders that they are assessed as requiring – in the coming year that is likely to mean employing locum social workers, paying existing staff overtime, recruiting additional unpaid work supervisors and para-professionals, commissioning services from the Third Sector etc.
We would argue for an increase in funding to allow plans to be put into action to increase capacity and meet these challenges in order to protect communities, keep victims safe and hold individuals to account. Recent increases in staff costs have been met from wider local authority budgets in some areas, whilst other areas face the prospect of a detrimental impact on non-staff funds/service delivery; some are not filling vacancies due to budget constraints. There have been other ongoing pressures, such as auto-enrolment for pensions which have driven up the cost of employer contributions (£100,000 in one council). The cross-subsidising of CJSW from other budgets is becoming unsustainable, when all public service budgets are under such strain. This is set against a backdrop of prolonged austerity for many parts of local government, with continued year-on-year budget reductions, now coupled with the impact of the pandemic.
As referred to above (in question 1), local authorities were awarded additional funding this year for SDS and bail services. Scottish Government stipulated this could be utilised as a response to the pandemic. This is welcomed but it remains unclear whether this is a recurring amount; this creates uncertainty – some CJSW have created short-term posts funded to March 2021 as a response to the pandemic.
There is also likely to be additional capital expenditure in the year ahead, e.g. additional workshop facilities or to replace existing infrastructure no longer fit for purpose.
The current funding formula was introduced 4 years ago and 2021/22 will be the last year of the transition period to protect those local authorities adversely affected by this, e.g. in one local authority the net reduction in the CJSW Budget from 2016/17, the last year of the old funding model, to 2019/20 was £672,000. The annual funding model currently used is not fit for purpose. It restricts our ability to plan and sustain services, including services purchased from the Third Sector. It leads to short-term contractual arrangements and undermines our ability to retain staff. As an outcome of the comprehensive review of costs associated with Scotland’s community justice approach (which we have called for over a number of years), a new funding model should be adopted.
Throughout the national lockdown, except for unpaid work (now restarted), CJSW maintained the delivery of services and continued to manage the risk of individuals, albeit remotely and at a reduced levels focussing on higher risk of harm and the most vulnerable individuals. MAPPA, MARAC (to protect those at risk of domestic abuse) and MATAC (targeting perpetrators of domestic abuse) continued uninterrupted, with meetings moving to virtual platforms or using phone conferencing. However, most offices were shut, and staff worked from home. As indicated above, whilst there has been a return to offices this is at a much-reduced capacity and the mix of home and office work will continue for the foreseeable future. The complex services CJSW deliver legally require specially trained and qualified social workers. However, there is greater capacity to deliver alternative to prosecution and custody services by para-professional staff and/or third sector partners. This will require further structural and financial change, introducing greater flexibility into the system.
CJSW continue to explore the virtual delivery of services. For example, the delivery of the ‘other activity’ component of an unpaid work requirement through online modules (mental health, employability etc.) which an individual can access from their home and discussions are ongoing with the Third Sector offering advice and guidance as to what is required.
The issue of digital poverty has been highlighted by the pandemic and well-articulated. CJSW are engaged with the development of the virtual custody initiative. We believe there is the scope to further deliver services virtually to individuals. For example, establishing a secure and reliable platform to effectively ‘FaceTime’ individuals regularly whether they are in prison or the community. This will not be appropriate for all and would require assessment on a case-by-case basis, but for lower risk individuals or where a person has completed interventions and is effectively being monitored this would provide an efficient additional method of supervision, i.e. a blend of contact in person and remotely. This has particular, post-pandemic applicability in remoter rural and island authorities. Ideally, all justice sector agencies should use the same platform for improved reliability and connectivity.
There are risks and opportunities in the urgent drive to ‘build back better’ across the justice sector. Local authority criminal justice social work will be central to that effort, given the range of statutory responsibilities it has. But securing long-term change requires capacity; people with the skills and time to facilitate the change, and sufficient numbers of people to deliver the changed system that we’re building. Lack of attention and investment in either of those elements will mean we are left with sound plans but limited success.
We have outlined above some of the many challenges and pressures on CJSW pre-dating coronavirus. These will continue to affect service delivery across Scotland for the foreseeable future, but now with the added complexity of covid-19. If we are truly serious as a nation in creating a modern human rights-based justice system that reflects and addresses the needs of individuals and victims, and one that is evidenced based, we cannot afford to continue to lock up so much resource in prisons. The 2020-21 budget is an opportunity to seize the moment and make the necessary paradigm shift. That requires courage and boldness from our political leaders and representatives; a willingness to stand up to vested interests and a commitment to a fundamental reappraisal of the funding and delivery landscape, led by the evidence and our country’s belief in human rights and best value.
For further information, please do not hesitate to contact:
Chair of Social Work Scotland’s Justice Standing Committee & Principal Officer (Criminal Justice Social Work), The Highland Council
 Scottish Budget 2020-21 (Scottish Government, 2020)
 What Works to Reduce Reoffending: A Summary of the Evidence, pp5, Dr. Maria Sapouna et al, Justice Analytical Services, Scottish Government, May 2015
 Scottish Prison Service 24/10/20 https://www.sps.gov.uk/Corporate/Information/SPSPopulation.aspx
 Electronic Monitoring in Scotland Working Group, Final Report pp4-5, Scottish Government 2016
 Pre-budget scrutiny for 2020-21 Budget Submission from Social Work Scotland 27/9/20 https://www.parliament.scot/S5_JusticeCommittee/General%20Documents/submissions_prebudget.pdf pp67 – 74
 Coronavirus (Scotland) Act 2020 Position Paper, Submission from Social Work Scotland to Scottish Government 10/7/20 https://socialworkscotland.org/briefings/reducing-the-backlog-of-unpaid-work-hours-coronavirus-scotland-act-2020/
 Is treatment non-completion associated with increased reconviction over no treatment? Mary McMurran & Eleni Theodosi, Journal of Psychology, Crime & Law pp333-343, 9/7/07
 SWS acknowledges a degree of caution as to the precise accuracy of the modelling which is unpublished; however, that there will be an impact is undisputed. We urgently call for clear modelling in order to allow agencies to comprehensively plan during and after the pandemic.
 For example, see A desistance paradigm for offender management, Fergus McNeill, Universities of Glasgow and Strathclyde, Criminology & Criminal Justice. 2006 SAGE Publications
 How having a mobile phone can save your life, Karyn McCluskey, The Scotsman 4/5/20
Response to the Scottish Sentencing Council consultation on sentencing young people
Submission from Social Work Scotland to the Scottish Sentencing Council consultation on sentencing young people
Social Work Scotland is the professional body for social work leaders and managers, working closely with partners in all sectors to shape policy and practice, with a view to continuously improving the quality and experience of social services in Scotland. We welcome this opportunity to comment on the proposed sentencing guidelines for young people.
Q1. Do you agree or disagree that a principle-based approach to the guideline is the right approach?
Agree. For the reasons set out in the consultation paper. The value of a sentencing guideline for young people is the opportunity it presents to emphasise the relevant developmental and contextual factors which should be taken into account when sentences are considered. Those developmental and contextual factors apply in all circumstances, regardless of the type of offence, so it makes sense to utilise a principle-based approach.
Q2. Do you agree or disagree that the guideline should apply to people under the age of 25?
Agree. If there was an option, our response would be ‘strongly agree’. The consultation paper summarises well the breadth and weight of evidence in support of an expansive definition of ‘young person’, including all those under the age of 25. Scotland’s criminal justice system must reflect the best available evidence about why people commit offences, and what measures are effective in deterring such behaviour in the future. If our central objective remains securing justice for victims through appropriate sentencing, we are failing victims, the individuals involved in offending and society at large, if we demand ineffective measures of punishment (which for most children and young people includes incarceration).
The age of 25 is also consistent with Scottish law for children in care, which recognises the evolving capacity of young people, and their continued need for assistance and supportive relationships well into adulthood.
Indeed we hope that future guidelines will make clear that for everyone, capacity is an evolving, unfixed thing, determined by a range of factors. Although we can accept that an age bracket be applied in this instance, our hope is that this ‘threshold’ will not actually mean much, as in all instances courts will give detailed and careful consideration to an individual’s capacity, regardless of their age. Specific guidelines for young people are welcome in that they will cement such considerations into practice for cases involving under 25 year olds, but such practice should be standard in all cases.
We can also accept the restriction of the guidelines to those individuals who are young at the time of sentencing, for the reasons given in the consultation paper. However, this detail underlines the importance – albeit outwith the Scottish Sentencing Council’s purview – of ensuring the process from charge to trial is swift and efficient. It would be palpably unfair (and potential open to appeal) for an individual to potentially receive, for the same offence, materially different kinds of sentence at two different points in time, determined purely on the basis of whether the individual is considered a ‘young person’ or ‘adult’ at the time of sentencing.
Q3. If you disagree that the guideline should apply to people under the age of 25, at what age should the guideline cease to apply?
Q4. Do you agree or disagree that the relationship between this guideline and the ‘Principles and purposes of sentencing’ guideline is set out clearly?
Agree. The proposal to make direct links between the two documents, allowing this guideline to be kept brief, seems sensible.
Q5. Do you agree or disagree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person?
Disagree. While we welcome the Sentencing Council’s efforts to keep the guidelines brief and concise, we feel an opportunity may be missed (perhaps in the form of an annex or appendix) to set out, in more detail, the types of factors which should be taken into account. For example, the guideline could highlight the higher incidence of mental health issues among young people involved in offending, or the impact of abuse, neglect and loss. There is no explicit mention of the relevance of care experience, and perhaps more importantly, how this should be considered.
Ideally the proposed level of information in the guideline would be sufficient, prompting further inquiry and investigation into the evidence underpinning it. However, remaining aware of the pressures judges are under, a guideline which itself provides a clear introduction to these factors may be necessary.
For comparison, the ‘Welfare’ section of the Sentencing Council’s Sentencing Children and Young People Guideline provides significantly more detail on the factors which the court should consider when determining a sentence.
Q6. If you do not agree that paragraph 7 of the guideline gives enough information about the factors that should be taken into account when sentencing a young person, what additional information should it provide?
Provided answer in response to question 5.
Q7. Do you agree or disagree that rehabilitation should be given greater emphasis than other purposes of sentencing in this guideline?
Agree. Rehabilitation is rightly described as the primary consideration, and we welcome the fact that the guideline clearly frames the purpose of sentencing as the identification of a disposal most likely to reduce the risk of reoffending. As the evidence summarised in the consultation paper suggests, this should encourage decisions which seek to address the young person’s needs, rather than punish their actions.
Q8. Do you agree or disagree that rehabilitation should be a primary consideration when sentencing a young person?
Agree. Reasons given in response to question 7.
Q9. Which, if any, other purposes of sentencing should be emphasised in this guideline?
In light of the fact that 50% of respondents thought that protecting the public was the most important purpose of sentencing in general, it may be worthwhile to include a paragraph in the guideline explaining how a focus on effective rehabilitation of young people contributes to public safety, through reductions in recidivism, reduced inequality, etc.
Q10. Is the section on the assessment of seriousness helpful?
Disagree. A section on assessing seriousness is necessary and has the potential to be very helpful in securing the objectives of this guideline, however the current two paragraphs provide little information on why a young person’s maturity will be generally lower than that of an older person. This being a guideline covering individuals widely considered ‘adults’ by society, it is important that relevant opportunities are taken (in the guideline) to explain about an individual’s ‘evolving capacity’, and the now scientifically evidenced distinctions between young adult’s neurobiology and that of older adults.
Although it is acknowledged that readers are encouraged to read the guideline ‘The Sentencing Process’ (para 11), the ‘assessment of seriousness’ section’s utility may be improved by providing a few additional paragraphs on the factors which should be considered when assessing culpability, as well as providing some indication of how maturity should be determined by the court. In respect of the latter process, in our opinion this would be difficult through a court process alone, and will likely depend on external, expert assessments, provided to the judge via reports, etc.
Q11. Do you agree or disagree that paragraph 13 of the guideline identifies the information which is of most relevance to sentencing a young person?
Disagree. As the guideline itself says, the four bullet points of paragraph 13 are provided ‘for example’, and should not be considered the totality of relevant information. Each young person is unique, and the guideline should stress that a judge should seek to secure whatever contextual and background information they require in order to identify an appropriate sentence (the primary purpose of which is rehabilitation).
With the existing bullet points, we would also recommend some re-working. Our suggestions below:
Q12. Do you agree or disagree with paragraph 14 of the guideline stating that cases should be referred to a children’s hearing for advice where it is competent to do so?
Q13. Do you agree or disagree with the proposed features of an appropriate sentence for a young person set out at paragraph 15 of the guideline?
Agree. However, would recommend some re-ordering and re-wording, to help achieve the guidelines objectives. The ordering and wording of lists such as this play a significant part in ‘framing’ people and issues in reader’s minds, and so it is important careful attention is given to the impression such a list gives.
For example, starting with ‘Increase the likelihood of aiding the reintegration of the young person into society’ suggests to the reader that the individual concerned is not integrated into society, and is therefore somehow ‘apart from it’. This is not a helpful framing to place around young people who offend, many of whom may be firmly part of their society /community. A judges’ consideration of what is an appropriate sentence may differ for someone they feel is part of society, and for someone who sits ‘outside’ of society.
Similarly, the last bullet point, ‘Assist in developing or maintaining positive connections between the young person and society’, again implies that the young person is somehow separate to the society of which they are part. Some careful rewording could convey the message without inadvertently suggesting things about the young person / young people. We would recommend placing ‘Address the underlying causes of offending behaviour’ as the first bullet point, as from the perspective of rehabilitation being the primary purpose of sentencing, this feature seems of primary importance.
In respect of paragraph 16, the guideline states that the judge should clearly explain the sentence of the young person, to increase the likelihood of the sentence being effective. However, the clarity of the explanation is not, in itself, what is going to make a difference. Rather it is the quality of the young person’s understanding. Therefore we would recommend amending this paragraph so that it encourages judges to make sure the young person has clearly understood the reasons for, and the aims of, of the sentence. Depending on the individual’s maturity and communication needs, that may require external (to the judge / court) support.
Q14. Do you agree or disagree that the approach set out in paragraphs 17 and 18 of the guideline is appropriate?
Q15. Do you agree or disagree that judges should consider remitting each case to a children’s hearing for disposal, where it is competent to do so?
Agree. Judges should give this option consideration, where it is competent to do so, helping to ensure that young people’s actions and needs are considered through a welfare lens, with suitably tailored responses / interventions.
Q16. Do you think the guideline will influence sentencing practice in Scotland?
We welcome the introduction of the guideline (and accompanying guidelines), representing as it does, in our view, an important component in the broad effort to ensure the best available evidence and knowledge underpins our justice system. Although we appreciate the document is only a guideline, it provides those operating within and alongside the justice system with clarity about how (and on what basis) the system should operate. Not only should it encourage deeper engagement with the evidence about young people’s offending and rehabilitation, it should also, helpfully, provide for greater consistency and a constructive framing around judges’ decision making.
In assessing whether the guideline has influenced sentencing practice, we encourage the Sentencing Council to consider a formal evaluation, perhaps combining data already collected by the Scottish Courts and Tribunal Service (on disposals, etc.) with some qualitative element capturing the experiences of young people involved in sentencing.
Q17. Do you agree or disagree that the guideline will increase public understanding of how sentencing decisions in respect of young people are made?
Agree that the guideline has the potential to increase public understanding. In itself the guideline does not provide much information to the casual reader, but with some modifications (such as those recommended in our previous answers) and clear links through to the underlying evidence base, it could make a really valuable contribution.
Considering the public’s interest in offending by children and young people, the guideline is certainly likely to illicit some attention and public debate. We hope that such an opportunity to improve public understanding is not missed.
Q18. Do you agree or disagree that the guideline will increase public confidence in the sentencing of young people?
Do not know. We suspect that in some parts of society the guideline is likely to diminish public confidence in sentencing of young people; particularly with the definition of young people extending to 25 years old. In the view of some in the public, crime should be met by punishment, and a focus on rehabilitation is to pander to offenders and disregard victims.
Often this narrative extends to children and young people, about whom it is argued that, if they are hold enough to commit certain crimes, they are old enough to take responsibility for them (by which they mean adult, custodial sentences). However, while public confidence in the justice system (and sentencing as a key part of that) is absolutely critical, the role of the Scottish Sentencing Council is to support judges to make the best decisions with a view to securing justice. That involves marshalling evidence which shows that ‘punishment’ (often crudely associated with custodial sentences) is often ineffective in changing behaviour, reducing public risk, etc. Other parts of the public, focused on a securing a justice system which reduces crime and increases public safety, will welcome an evidence
Q19. Do you agree or disagree with the assessment of the specific, identified impacts
Disagree. The impact assessment, understandably, focuses on the impacts within the justice system. There are mentions of the impact on social work, but the conclusion is always that these will be minimal. We have welcomed engagement by the Scottish Sentencing Council to date, seeking to understand the likely impact on social work, but do not feel this has gone far enough to properly articulate the issues local authorities and others may face. For example, in respect to paragraph 50 of the assessment, it states that:
However, local authority resourcing of social work is not as simple as this implies. Justice Social Work funding is, to a significant degree, provided by Scottish Government and ring-fenced for specific purposes. While some local authorities do augment this allocation, not all do. And ring-fenced funding cannot simply moved around between departments.
Similarly, while we agree that a relatively small percentage increase in compulsory supervision orders is unlikely to provoke any long-term structural issues (as noted in paragraph 51 of the impact assessment), the fact of short term resource impact should not be summarily skipped over. Children and families social work, like all social work, is under significant resource pressures, with services being reduced and capacity constrained. At the same time, expectations (particularly through recent legislative measures) are increasing the demand on social work team s in general, and on social workers’ time specifically.
These issues apply equally to paragraph 58 of the impact statement, where it notes that “social work departments may incur additional costs over the short term if the information requested by courts is expanded to include an assessment of maturity”. Our hope and expectation is that, in implementing this guideline, courts will have to request more input from social work. This would be welcome, in the interests of providing the judge with a broad assessment of maturity and therefore culpability. But there will still be an impact, and while after a few years the system will have realigned itself in order to accommodate the demand, over those initial years there will be work in addition to (rather than instead of) current activity. Individuals and teams will either have to absorb this, or other activity will have to be reduced. In planning for the introduction of the guideline, stakeholders should try to better identify the likely impact, and put in place measures to facilitate the transition over the next few years.
But perhaps most significantly, and missing entirely in the impact assessment, is consideration of the additional costs to the system of managing non-custodial disposals for young people with very serious care needs. Such disposals will, in the majority of cases, be the more effective option (in terms of securing rehabilitation), but only if the wider system has the capacity / resources to meet those needs. The care and risk management of young people who may have caused serious harm, but who are simultaneously at risk of harm to themselves and from others, requires teams of highly skilled professionals, working in integrated teams. As the principles underpinning such an approach are better aligned to the available evidence, and the outcomes from it (in respect of recidivism, etc.) superior to
We appreciate these issues are not in the purview of the Sentencing Council directly, but the impact statement should still attempt to quantify or illustrate the expected impact on key related services like social work. That work will help facilitate discussions among relevant other parties, such as Scottish Government and local authorities.
Q20. What benefits do you think will come from the introduction of this guideline, if any?
Primarily, the broadening out and cementing of current judicial best practice, with full and proper consideration given to the young person’s background, context, characteristics and needs when determining sentences. This is likely to require the increased involvement of a range of professionals in the work of the court, providing assessments and expertise.
Q21. What costs (financial or otherwise) do you think will come from the introduction of this guideline, if any?
As noted in our answer to question 19, we believe the impact assessment has underestimated the costs involved. In too many instances, in the absence of hard data, the likely financial and human impact is marginalised as ‘short-term’. This should be readdressed, with a deeper examination of impact undertaken.
However, we reassert our opinion that the additional costs so far identified are welcome, in so much as they represent a move in our justice system towards a more evidence-based, welfare-orientated model.
Q22. Would you like to make any other comments about any matter arising from this consultation?
Feedback from Social Work Scotland members noted:
For further information, please do not hesitate to contact:
Consultation response: Youth Justice standards
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.
We welcome the opportunity to comment on the Youth Justice Standards. Within the membership of Social Work Scotland there will have been a range of local responses. The views below do not capture the insights and expertise of all of them. Suggestions below focus on views about general emphasis, and specific strengths and concerns about content, meaning and impact.
Yes, ( broadly and allowing for caveats and considerations below, some of which are fundamental)
If the issues above are transparently captured in the way that services are self- evaluated and inspected then it will be possible to answer this question positively.
See references and points made above in relation to relevance of extracts below
Response to Victim Statements Scottish Government consultation
SUBMISSION FROM SOCIAL WORK SCOTLAND, TO SCOTTISH GOVERNMENT CONSULTATION
28 NOVEMBER 2019
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.
Option A – expanding eligibility to include the list of serious offences at section 4 of the consultation paper
Option B – expanding eligibility to all cases heard under solemn proceedings
Option C – as per Option B but also including a list of offences which would be eligible for a victim statement even if they were tried as summary proceedings
We favour Option C, in that it ensures the widest extension of the scheme and puts victims more firmly at the centre of the criminal justice system. The right to make a Victim Impact Statement should be open to all victims, allowing their voice to be heard.
If you favour option C, which offences do you think should be considered for inclusion so they would be eligible for a victim statement even if tried as summary proceedings?
We think all offences in the extended list should be included.
We understand the complexity and resource implications of allowing a victim statement to be made for any offence, and that there is evidence to suggest there is less demand for less serious crimes. However, the principle of giving every victim the right to say how any offence has impacted on them is one we think Scotland should consider, as is the case in other jurisdictions.
Victims reading their statement in court
We think there is some merit in exploring this option as it would provide the victim with an opportunity to be directly involved and in control of the statement they wish to make, and to express their thoughts and feelings as they would wish.
However, we are also cautious about this option. Victims would need to be well supported to make an informed choice, as well as prepared and supported through the process itself. There is a risk, potentially significant, that victims are are retraumatised by the experience of reading out their statement in court. Ensuring support workers are trained in trauma-informed practice would be essential.
Some victims may also have difficulty with reading, which would impact on their ability to articulate their statement clearly. We know that a sentencing diet can be postponed for many reasons, including at very short notice and on the day of the court. This may happen more than once. This may engender considerable frustration, even anger on the part of the victim, and may prevent victims being able to move forward with their lives. It is a balance between respecting the rights of victims and the unintended consequence of causing more harm.
Pre-recording the statement on video
There is less risk with this option than physically reading a statement, but it would maintain the value of victims feeling in full control of their statement and its delivery. It would allow the victim to record their statement safely and without undue pressure and to directly express themselves without the potential pitfalls expressed above. It would address the issues around literacy.
Pre-recording the statement with audio only
Like a video statement, but this option offers a degree of anonymity whilst still allowing the victim’s ‘voice’ to be directly heard.
The judge reading the statement aloud to the court
Whilst precluding physically seeing and/or hearing the voice of a victim, it is a safe option that offers protection for the victim and certainty that their written statement will be heard.
We think another option should be for a relative or friend of the victim to read the statement out in court. In situations where the victim, for whatever reason, felt unable to do this him/herself, being able to select a person of their own choosing to act on their behalf means they would retain more ownership and control over the Victim Statement than, for example, if it was read out by a judge or sheriff.
Another option would be for Victim Support Scotland given their current role and expertise in supporting victims and offering advice and guidance on Victim Statements, to offer a service to facilitate the provision of Victime Statements to the court.
For options (1) – (5) there would need to be clear guidelines as to how they are conducted, e.g. use of language, tone of voice, use of self, etc.
Victims often question the extent to which their voice is heard within the criminal justice system. The system is seen as all about the individual that has offended, with little attention paid to victims.
We believe there is some truth in this, and that more could and should be done to put victims at the heart of the criminal justice system. Victim Statements offer a potentially powerful took with which to articulate the impact on victims at different points in the journey, and to hold people to account for their actions, decisions, etc.
For example, justice social work (JSW) prepared 28,400 criminal justice social work reports (CJSWR) in 2017/18 to assist the court in determining the right sentence for the individual. Each report analyses the offence(s) and requires an explicit analysis of ‘the level of recognition by the offender on the impact/consequences of the offence(s) on the victim/community’ (question taken from the national CSJWR template, Scottish government 2011). However, in most cases the justice social worker is reliant on the terms of the charge(s) and what the individual tells them in interview. The social worker does not receive the Crown Office’s Summary of Evidence or any other independent and objective account of an offence and the consequences for a victim. (There are exceptions to this, for example some sexual and domestic offences.) This not only disadvantages the social worker in providing a fully informed analysis and assessment of risk and need, but also denies the victim an opportunity to articulate how the crime has impacted them.
Notwithstanding GDPR and setting out the terms of information sharing and use, with the consent of the victim the statement could be shared with JSW to help inform the CJSWR and supervision with the individual on a Community Payback Order, and his or her progression through a prison sentence, including the parole process (and we welcome the clear consensus to strengthen the voice of victims in the parole process as summarised in the Transforming Parole in Scotland: consultation report [Scottish government, November 2019]). This information would better ensure people are held to account for their crimes and ensure the victim’s voice is heard.
This change would cost little but the impact would be considerable and ensure the rights of victims are continually heard throughout an individual’s order or sentence. We think this is worth considering with victims and Victim’s organisations.
Similarly, there is also the potential to consider how Victim Statements can enhance Restorative Justice processes.
We also think this is an opportunity to review the Victim Statement template, its availability (it’s not currently freely available, including on-line), the timing of when it is done and ensuring victims know what happens to their statement.
Although this is not something being planned alongside changes to the current scheme, SWS think there is merit in reviewing the current eligibility set out in the 2003 Act. Specifically, this should consider extending this to children, or their parent/carer on their behalf, as is the case in victim statement schemes in other jurisdictions. This is in accordance with the principle of respecting the rights of children (including UNCRC Article 12) and in acknowledgment of the impact of domestic abuse and other crimes upon them.
GDPR legislation came into force in 2018 and any revised statement would require to be proofed against this. This would also apply to the implications if people other than the victim were involved in, for example, recording or reading out a victim’s statement.
As referred to at (5) above careful consideration would be required of widening out the scheme as described.
For further information, please do not hesitate to contact:
0131 281 0853
Financial redress for historical child abuse in care – pre-legislative consultation
PURPOSE AND PRINCIPLES OF THE REDRESS SCHEME
Yes, in general terms we agree with the proposed purpose of financial redress. However, in the drafting of the legislation we would encourage greater alignment with the wording used in the Limitation (Childhood Abuse) (Scotland) Act 2017, to ensure it is clear that the scheme applies only to individuals who sustained harm, rather than any child who was placed in a particular setting. Furthermore, the term ‘long term’ should be removed; ideas of what constitutes ‘long-term’ are contested (one month, one year?) and no clear definition exists or is likely to be agreed. The only relevant factors are that a child was placed in a setting by a public body (i.e. the state) and in that setting they suffered abuse. The length of time the child was in care should be immaterial.
If some version of the phrase “responsibility for the care of the child in place of the parent” is maintained in the description, it would be prudent to consider how the Redress Scheme will treat cases where institutions and bodies facilitated private arrangements within families, supporting relatives or family friends to provide care for the child in place of the parent. In these cases the state may never have assumed formal responsibilities for a child, but could still have had a significant role in determining with whom the child was placed; who may subsequently have subjected the child to abuse, or sent the child to a setting where they were subjected to abuse. While likely to affect only a few individuals, an equitable and effective Redress Scheme must be clear on how to treat these and other marginal cases.
2. Do you agree with these guiding principles?
Yes, we agree with the guiding principles proposed. But we feel that the list of principles should be extended further. Firstly, to include an explicit principle that individuals applying to the scheme are provided with specialised support from the start, designed to minimise the potential for future harm through the process (building on Principle 5), and also to ensure as strong an application as possible. This is to ensure equity of access to the Scheme, as some eligible individuals may have more experience, confidence, skills or support that others.
Secondly, while we agree the primary focus of the principles should be on the experience of the persons applying, we believe it would be helpful to have additional principles related to how public bodies and other organisations / institutions will be treated. For example, there could be a principle that the Redress Scheme will not put at risk services currently available to nurture and protect children looked after by Scottish local authorities. A clearer statement of how affected organisations can expect to be treated will not only help manage their engagement, it should improve transparency around a critical dimension of the Scheme for individual’s applying.
3. Do you agree with the proposed approach in relation to institutions and bodies having long term responsibility for the child in place of the parent?
No. As noted previously, the notion of what constitutes ‘long-term’ is subjective and contentious, and the phrase should be removed, in favour of simply “responsibility in place of the parent”. The factors which need to be established are whether institutions and bodies had responsibility for the child (in place of the parent) at the time abuse took place.
Similarly, we would recommend removing the term “morally responsible”. We assume this has been included to highlight that the state (through its institutions and bodies) had ethical and moral responsibilities towards the children in its care. However, in this context it appears both anachronistic and, possibly, trivialising of the extent of responsibility. We would favour instead “…and were legally responsible for their physical, social and emotional needs in place of parents” or “…and were practicably responsible for their physical, social and emotional needs in place of parents”.
4. Subject to the institution or body having long term responsibility for the child, do you agree that the list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference?
Broadly, yes. The list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference.
5. Where parents chose to send children to a fee paying boarding school for the primary purpose of education, the institution did not have long-term responsibility in place of the parent. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. While we understand and broadly agree with the rationale for excluding from the scheme children who were placed in fee paying boarding schools by parents who were free to choose, the current wording does not take into account the complexity of the UK’s history or individual family situations. As a result, individuals may be unfairly denied access to the Redress Scheme.
For example, how should the scheme treat children who were sent to fee paying boarding schools because of the parent’s employment abroad for the state, such as in the military, as colonial officers, or on diplomatic missions? In some cases the state itself will have paid the fees for these boarding schools, either directly or through supplements to parents. In these circumstances, did the parent’s ‘choose’ to send their children to boarding schools? Furthermore, in such circumstances it may be argued that sending children to such schools was for not primarily for the purposes of education, but also of care.
Related to points already made, there may also be situations were institutions and bodies (of the state) facilitated the placement of children in fee paying boarding schools, securing the financial support of relatives to keep the child out of formal state care. The Redress Scheme does need boundaries, but it must also be flexible enough to take account of the immense variety and complexity of individual circumstances. That will require skilled professionals, supporting individuals with their applications from the very start. And where people / groups are excluded from the Redress Scheme, we should be confident that those individuals have recourse to redress through other means. (Even then, we are concerned about the potential disparity which may emerge between two school peers, both victims of abuse, but one able to access a supportive, person-focused Redress Scheme, the other only with access to the courts.)
Finally, if a version of this exclusion is adopted, it will be important to communicate that it does not apply to people who were directly placed in boarding schools by institutions and bodies who had parental responsibilities towards them.
6. Where children spent time in hospital primarily for the purpose of medical or surgical treatment, parents retained the long-term responsibility for them. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. We are very uneasy about the exclusion of children who were abused while in hospital for the purpose of medical or surgical treatment, where parents retained ‘long-term’ responsibility for them. As with boarding schools, the lack of nuance here risks denying many individuals the right to redress for abuse suffered while in the care and protection of the NHS. It also insulates the NHS from appropriate accountability around how it fulfilled its responsibilities to the children in its care. We fully accept that local authorities had responsibilities towards children who were then victims of abuse, but that is equally true of hospitals and NHS Boards.
The primary consideration in determining eligibility should be whether the state had a significant role or power in determining the placement of the child, and when the child was in that placement, had responsibilities for their care and protection. A parent whose child requires medical treatment does not ‘choose’ to leave them in hospital; they follow the recommendations (and often decisions) or doctors. Nor does the parent remain totally responsible for the care and protection of the child over that period; the hospital (and NHS more generally) assumes responsibilities too. These dynamics are true today, but were perhaps even more of a feature in the past, where deferential attitudes towards medical professionals would have meant less challenge of their decisions, and where hospitals were less welcoming of parents and families (with strict visiting times, etc.). By any common sense account, children in hospital for medical or surgical treatment were (and are) in the care of the hospital and its staff. That should be reflected in the eligibility to the scheme.
By our understanding of this proposed eligibility criteria, if a group of children had suffered systematic abuse in a Scottish hospital (such as Jimmy Saville perpetrated in an English context) only those who had been formally ‘looked after’ by a local authority would be eligible to apply to the Redress Scheme. This does not seem fair on the victims (who may legitimately feel the hospital had responsibilities to keep the safe) nor on the local authorities and other organisations who will participate in the Redress Scheme.
7. We intend to use the same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 for the purpose of the financial redress scheme. This includes sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect. Do you agree?
Yes. The same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 should be used for the purpose of the Redress Scheme. We also support the link to the Child Protection guidance.
In determining how specific applications to the Redress Scheme are handled, we believe the interpretation of this definition should be expansive, taking into account certain actions which do not correspond obviously to sexual, physical or emotional abuse. For example, in situations where there is inappropriate administration of drugs, whether as means of control or as part a fabricated induced illness.
8. In our view 1 December 2004 represents an appropriate date to define ‘historical’ abuse for this financial redress scheme. Do you agree?
Not sure. Any date is going to exclude people, however, in the interests of making the Redress Scheme as inclusive (and final) as possible, should we not set a date somewhere closer to the present? Particularly as the scheme is not expected to be in operation until 2021. Moreover, the rationale given for the December 2004 date feels weak; we are concerned that victims / survivors of abuse may not feel the date of a public apology is a sufficient milestone. Perhaps a more suitable alternative would be the start of the public inquiry, in 2015.
If the 2004 date is chosen, clear guidance on alternative routes to redress must be made available to those who suffered abused at a later date.
9. Do you have any comments you would like to make in relation to child migrants who also meet the eligibility requirements of this redress scheme?
We are supportive of the proposals around child migrants. It is both logical and fair that these individuals are considered eligible to the Redress Scheme, if they suffered abuse within Scotland while in the care of the state. This should apply even if they have also received or applied to the UK child migrant scheme.
10. Do you have any comments about the eligibility of those with a criminal conviction?
Criminal convictions should be no barrier to accessing the Redress Scheme. Eligibility should be determined by the circumstances of an individual’s childhood, not what the individual did or went on to do. We understand that for some it will be unpalatable to award financial payments to individuals convicted of offences (particularly sexual offences against children), but ultimately that is a political, presentational problem. The scheme can only live up to the principles on which is supposed to be based if it is open to all, irrespective of the actions of individual applicants. Moreover, if any restrictions were to be introduced, they are likely to be challengeable under the Human Rights Act 1998.
11. Do you have any other comments on eligibility for the financial redress scheme?
It may help if the eligibility criteria were clear on characteristics like citizenship. Our assumption is that the Scheme would be open to anyone who suffered abuse in Scotland while in the care of public bodies, regardless of their citizenship at the time or now.
We also recommend that powers be taken by Scottish Ministers to review and adjust eligibility criteria, and for these to be formally reviewed after the first couple of years of the scheme’s operation.
12. What options might be available for someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland?
Those who are unable to produce documentary evidence of being “in care” are ineligible for an Advanced Payment; it makes sense that the full Redress Scheme mirror this. However, individuals applying to the full scheme should have the option to give evidence on oath, submitting an affidavit for determination.
Assuming that individuals will receive support with applications from the start, it may also be possible to triangulate from other documentary evidence, including individual’s personal records, to a high degree of certainty that an individual was at a particular place when abuse took place. This could be validated by a version of the ‘in care confirmation letter’ developed for the Advanced Payment scheme.
13. Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available?
Yes. To deliver the Scheme efficiently and effectively relevant bodies and organisations should be required to provide information which would support an application. This power would replicate that of the Scottish Child Abuse Inquiry. It would also help ensure all relevant parties share the load of facilitating the work of the Scheme.
However, the provision of information is not a cost free exercise. In fact it can be a highly onerous one, and detailed consideration will need to be given to how organisations covered by this power are supported to undertake the work requested. Resourcing (human and financial) and imagination will be necessary. It could be worthwhile, for example, to establish within the Scheme’s statutory body a team of sufficient size that they can directly assist data / evidence providers (who otherwise may need to recruit and train additional staff). In all instances, adequate, realistic timescales must be given for compliance.
The key consideration for the design and management of the Redress Scheme must be that attention and resources are not diverted (more than is absolutely necessary) away from the current provision of services, and the support of children and adults (some whom may also be applicants). The redress scheme will be unsuccessful and self-defeating if it saps the strength of today’s public services, through the reallocation of money, or people’s time and energy. The operation of the Redress Scheme must be fully funded, including the cost requirements of local authorities and others, whose staff will be central to making the Scheme work.
14. For Stage One, what evidence do you think should be required about the abuse suffered?
For the Stage One payment, the evidential test should be the same as currently in place for the Advance Payment scheme. We should be confident that abuse did take place at an institution while the individual was placed there, but not need to have proof of the specific instances of the individual’s abuse. Individuals should be able to submit what information they see as relevant to assist their application, including a written statement, but it should not be required. Similarly, a short written description of the abuse and its impact should not be required; the Stage One scheme, as proposed, would not be about assessing the extent of impact, so this would not be relevant. The act of describing the abuse may also, in itself, be re-traumatising. It should be choice whether they wish to disclose this, as part of a Stage 2 application.
15. Do you have any additional comments on evidence requirements for a Stage One payment?
16. For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?
17. Do you have any comments on evidence requirements for a Stage Two payment?
While the evidential test for a Stage Two payment should be appropriately more demanding than Stage One, the process for assessing claims must remain victim centred, flexible and focused on enabling and empowering an individual to secure redress (rather than meeting requirements or thresholds). This is likely to mean a process heavily dependent on skilled professionals and volunteers, including social workers, councillors, therapists, archivists, etc. That must be taken into account in the design of the scheme, and the structure and costs of the structure / organisation delivering it (e.g. a new public body).
18. Do you think applicants should be able to give oral evidence to support their application?
Yes. They should be able, but not required, to give oral testimony. They should have this option even if there is sufficient documentary evidence for their claim. This option should also be utilised where it is difficult to assess a case on the basis of available information.
19. Do you have any views on whether the length of time in care should be factored into the Stage Two assessment?
Length of time in care should be a consideration, but not a determinant or indicator of any impact. Being in care for two years and suffering abuse three times is not necessarily less significant than being in care for fifteen years and suffering abuse three times. Length of time in care should be something the professionals undertaking the assessment take into consideration, drawing on evidence about how individuals deal with trauma in different contexts, with different support structures, etc.
20. Do you have any views on the balance the assessment should give to different types of abuse (physical, emotional, sexual, neglect)?
Each case must be considered independently, and the focus must be on assessing the impact abuse had, whatever its form, on the individual. Establishing a hierarchy of abuse, as this question suggests, risks marginalising some victims’ experiences.
The process of assessment must be rigorous and forensic, but also sensitive and person-centred. It will not work if it becomes either a tick-box exercise or an opaque, subjective judgement. Maintaining the central, delicate balance will require very skilled professionals, using tools and their judgement, backed up by case notes and managers, and case discussions within small teams (to ensure individual assessors’ prejudices and assumptions are being challenged). Critically, individuals should have the right to appeal assessments.
21. What are your views on which factors in relation to the abuse and its impact might lead to higher levels of payment?
This should mirror the approach currently taken by civil courts.
22. Do you think (a) the redress payment is primarily for the abuse suffered; (b) the redress payment is primarily for the impact the abuse has had; (c) both the abuse suffered and the impact it has had should be treated equally.
It is unclear whether this question relates to Stage 1 payment, Stage 2 payment, or both. Assuming it refers to the Stage 2 payment, then its primary purpose is for the impact the abuse has had. The Stage 1 payment should be about acknowledging the abuse, and the second payment about its impact.
23. How do you think the scheme should ensure all parties are treated fairly and that the assessment and award process is sufficiently robust?
Again, the question is unclear about whether it applies all or part of the Scheme. Assuming that it refers to the Phase 2 payment, ensuring parties are treated fairly and the process is robust will depend on (a) the skills of the professionals undertaking the assessment, (b) transparency of the criteria being considered, (c) opportunities for review and appeal of assessment decisions, (d) strong structures of supervision for those undertaking assessments, (e) close work as a team to ensure consistency, and (f) constructive internal challenge.
Fairness is not something which can be baked into a system, or achieved through process or criteria. It is something experienced by individuals, and it will be determined in the relational space which the scheme’s employees offer. If individuals feel listened to and treated with respect, and that assessors took everything possible into account when making their judgement, and that decision makers give clear reasons for their judgement, applicants are more likely to feel the Scheme was fair, and accept decisions.
24. Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme?
Broadly, yes, we agree that individuals who have received a payment for another source should still be eligible to apply to the Redress Scheme. However, the amount received should be deducted from any future redress payment. And where a court has made a determination about a previous claim, the Redress Scheme must handle applications very carefully, to ensure that an award does not contradict the court’s decision.
Our rationale for supporting this eligibility to the scheme is one of equity and fairness. We considered an example where two individuals experienced similar abuse, in the same institution, at a similar time. One of the individuals has successfully secured redress through the courts or another scheme, while the other chose not to. The latter individual now makes a claim through the Redress Scheme, and is provided with a more substantial award than that offered to the first individual. While we expect variance even between two very similar cases (due to variable impact of abuse), it does not seem fair that one is entitled to make the claim and the other excluded.
25. Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme?
26. Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action?
Yes. We agree that applicants should choose between the two routes to redress. However, we do have some concern about the availability of quality legal advice to people having to make this decision, and the potential for individual’s to be exploited. There is already anecdotal evidence of some legal firms encouraging individuals to make civil claims (sometimes on a no win, no fee basis).
MAKING AN APPLICATION
27. We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale?
Yes. However, it would be advantageous if the legislation permitted an extension of the scheme, with the approval of relevant stakeholders, if demand, logistics, etc. justified it. Furthermore, if there is to be a deadline for applications (e.g. five years after the scheme opens) it will be necessary to build in some form of public information campaign to ensure eligible people know and understand the deadlines.
It is also important that we distinguish the timeframe within which applications can be submitted, and the timeframe of the scheme and associated public body. Processing applications may take some time (well beyond the closing date of applications) and, moreover, it would be a lost opportunity if the public body did not complete some research and publications before it was wrapped up. Further communications around the Scheme should make clear that the public body may be in operation for longer than the Scheme itself.
28. Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process?
Yes. However, in part this should be achieved by properly assessing and resourcing the archivist and data retrieval functions of data holders (such as local authorities). Ensuring that these organisations have the capacity needed to meet demand would achieve the same result, but also have many more attendant benefits (freeing up front line social workers, for example). Locally embedded capacity could also work in local projects around record retention and access more generally, and would hold out the potential for skills to be developed locally, rather than in a public body which will eventually be dissolved.
Should a national database be developed with admission and boarding-out-register data (as is currently being considered) there is an opportunity for the Scheme to access the data directly and where the person is discovered this will negate the need for further documentary evidence.
This will not fully negate the need for survivors to be assisted to access records though, and whether the necessary support is provided by the Scheme or other organisations, it should be a priority in both the legislation and implementation. And the support for survivors will need to go beyond practical documentary evidence gathering, extending to emotional and legal guidance too. The complexity – and cost – of providing such support should not be underestimated.
29. In your view, which parts of the redress process might require independent legal advice? Please tick all that apply.
30. How do you think the costs of independent legal advice could best be managed?
If it was possible, perhaps a measure of legal advice for free (provided by legal professionals employed or contracted by the statutory body). Then if an application is taken forward, this should be supported through legal aid (if the individual is eligible), with a cap on the maximum amount charged.
NEXT OF KIN
31. What are your views on our proposed approach to allow surviving spouses and children to apply for a next-of-kin payment?
Some provision for close, immediate family seems appropriate as a recognition on the impact the abuse may have had on the family. If the individual has died, the payment may also act as posthumous recognition of that individual’s experience.
It may the case that multiple family members may apply separately, but in our view only one payment should be available per survivor who has died. The Scheme will need to determine how a payment is then subsequently sub-divided between next-of-kin applicants.
We are supportive of the proposal to limit the next-of-kin definition to surviving spouses and children, as long as ‘surviving spouses’ includes civil partnerships and those who in long term relationships. Cases may become further complicated where ex-‘spouses’ feel justified to a claim on the basis that relationships with the abuse victim broke down in part because of the abuse the deceased individual had experienced. And there may also be difficulties with assessing the validity of children who were estranged (questions about whether the victim / survivor would have wanted them to receive funds), as well as those individuals who were not biologically or legally a victim / survivor’s children, but who were treated as such (e.g. children who grew up in informal kinship arrangements, with uncles, aunts, grandparents, etc.).
32. We are considering three options for the cut-off date for next-of-kin applications (meaning that a survivor would have had to have died after that date in order for a next-of-kin application to be made). Our proposal is to use 17 November 2016.
We do not have a firm opinion on this, but suggest that a single date be agreed to mark the various thresholds and cut-offs relevant to the Scheme. Previously we had suggested 17 December 2014, the announcement of the Scottish Child Abuse Inquiry.
33. We propose that to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met all the eligibility criteria. What forms of evidence of abuse should next-of-kin be able to submit to support their application?
Next of kin applicants should have to provide the same proof as required by living applicants, as well as proof of their relationship. That should include any existing written documentary evidence of the abuse, and here necessary, written or oral testimony in support of their application.
34. What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course?
35. We think those bearing responsibility for the abuse should be expected to provide financial contributions to the costs of redress. Do you agree?
Yes. Attributing responsibility for abuse will, in many instances, be complex and contentious. But, if we work from a position that certain parties had a responsibility to keep children safe and protected from abuse, we can build a framework within which relevant parties (i.e. those who should make a financial contribution) can be identified. This would include the government (now Scottish Government), local authorities and institutions.
Determining liability with regard to local government is likely to be very complicated, and we urge Scottish Government to work closely with COSLA and others to identify and properly stress-test different contribution models, before any legislation is introduced into Parliament. A suitable model can then be agreed in advance, supported by the relevant parties.
36. Please tell us about how you think contributions by those responsible should work. Should those responsible make?
No answer to this question.
37. Are there any barriers to providing contributions, and if so, how might these be overcome?
No answer to this question.
38. Should the impact of making financial contributions on current services be taken into account and if so how?
Yes. It is critical that the Redress Scheme does not impact detrimentally on current services. That most obviously includes those services available to today’s children and families, but also extends to the adult services (disability, drugs and alcohol, social care) which many victims / survivors will rely. If the Scheme was found to be negatively impacting on current services (for instance through reducing available funding), public support for the Scheme would likely wane, and it would potentially create risk within families.
In respect of how the impact on current services is monitored, individual organisations will have mechanisms for this, but there is also potentially a role for Audit Scotland and OSCR, keeping under review the financial statements of the organisations involved to ensure that changes in the availability of funding for certain services are flagged, and the reasons behind them interrogated.
39. What other impacts might there be and how could those be addressed?
Harder to identify than financial impact on current services, but possibly no less important, are the risks of vicarious trauma and burn out among the professionals supporting applications. We already have examples, driven by the demands of the Historical Abuse Inquiry and Advance Payment scheme, of resources having to be diverted, teams stretched, and individuals requiring time-off (due to over-work or discomfort with the material). Many people assume that identifying and processing records (i.e. for a Subject Access Request) is a purely administrative and bureaucratic exercise, but in reality it is one which exposes individual workers to stories of abuse and neglect. That exposure has an impact, and with the expected increase in requests for documentation which will follow the opening of the Redress Scheme, it will need to be properly taken into account.
40. How should circumstances where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets, be treated?
No answer to this question.
41. What is a fair and meaningful financial contribution from those bearing responsibility for the abuse?
No answer to this question.
42. What would be the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme?
No answer to this question.
43. Should there be consequences for those responsible who do not make a fair and meaningful financial contribution?
No answer to this question.
CONTRIBUTIONS TO WIDER REPARATIONS
44. In addition to their financial contributions to the redress scheme, what other contributions should those responsible for abuse make to wider reparations?
For the redress scheme to be more than just an acknowledgment of abuse, and for us to take this opportunity to address the harm done by the abuse and subsequent response (or lack thereof), it is critical that financial redress is just part of wider package of support.
In our opinion there should not be a distinction between the redress scheme and wider reparations. The Redress Scheme should cover all aspects, with financial awards representing one component. The financial contributions from relevant organisations and bodies would therefore be for the entire Scheme.
Within the package of wider reparations should fall the support provided (either directly by the Scheme or by relevant bodies and organisations) to applicants, such as help finding documentation, psychological support, etc.
DECISION MAKING PANEL FOR REDRESS
45. Do you agree that the decision making panel should consist of three members?
It is unclear again if the question is referring to a decision making panel for Phase 1, Phase 2 or both. If for Phase 1, then a three person panel seems excessive. An individual, suitably supervised and peer reviewed, should be sufficient. This would be in line with the current Advance Payment scheme. If the question relates to Phase 2 or both, we agree that the panel may consist of only three members. This is a fairly standard size for tribunals, and seems proportionate.
However, we think it should be clear that this panel will not be working alone, and that they will need to be supported by a range of professionals (employed directly or indirectly by the public body) whose purpose it is to support individuals with applications, assess the seriousness of impact (and validity of experiences, in some cases), etc. These professionals will play a key role in ensuring the information submitted to the Panel is as complete as possible, but they should also have role helping the Panel come to decisions (where necessary).
All processes, discussions and decisions of the Panel and supporting professionals should be recorded, transparent, accessible and challengeable.
46. Do you agree that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact? Are there other specific professional backgrounds or skills you feel are essential for the decision making panel?
Yes, agree with the proposed knowledge and skills. No, there are no other skills or professional backgrounds which need to be represented in decision making panel. But as noted in our answer to Q.45, the panel – and individual applicants – should be supported by other professionals, who can be called on to help plug gaps in knowledge and expertise. The skills necessary for this scheme to work well should not – and cannot – be contained within a small, three person panel.
47. We propose that a Survivor Panel be established to advise and inform the redress scheme governance and administration, ensuring survivor experience of the application process is considered as part of a culture of continuous improvement. Do you agree? How do you think survivors should be recruited and selected for this panel?
Yes. This would represent an important aspect of governance and continuous improvement, including rapid responses to challenges as they emerge. Survivor experience should also be reflected in the schemes overall governance (i.e. the Board).
Selection should be on the basis of open invitation and competition (on transparent criteria). Organisations should be encouraged to support members to apply. Representation should be broad enough to ensure all perspectives are being heard.
48. Do you agree that the financial redress scheme administration should be located in a new public body?
Not sure. The consultation document presents this as the only option, but for such an important decision it would be helpful if other options available were presented and evaluated (i.e. costs, benefits, risks, issues, etc.). For example, Social Work Scotland members have queried why the Redress Scheme cannot be located within the Scottish Courts and Tribunals Service, on the basis that it already has relevant expertise, and has judicial oversight and appeals processes built in. Others also raised concern that a new public body would not be seen as sufficiently independent of Scottish Government or local authorities, on whose resources the public body is likely to rely.
49. Do you have any views as to where the public body should be located and what it should be called? What factors should be taken into account when deciding where the public body should be?
We do not have views on what a new public body should be called, and the right choice of location(s) will be significantly determined by the public bodies’ functions. For example, if the public body is going to provide a structure for the provision of support services for victims, the body should perhaps have multiple locations across Scotland. Its headquarters could be in a significant town, easily accessible by public transport. Access for survivors and participating institutions, bodies and professionals should be the primary consideration.
50. How can survivors be involved in the recruitment process for these posts? How should survivors be selected to take part in this process?
Through the recruitment process there should be scope for survivors to interview and be part of the assessment process for panel members. Their feedback would provide an additional perspective which will ensure the people on the panel have good interpersonal skills, are empathic and personable. It may also help to run a national campaign inviting survivors to apply to be panel advisors.
There are strong parallels here with recruitment of panel members and senior staff at Children’s Hearings Scotland. Engagement and learning from CHS’ experience would be advantageous.
51. What are your views on bringing together the administration of other elements of a reparation package such as support and acknowledgement with financial redress? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
While we acknowledge the advantages of bringing together the administration of the wider reparation package (in respect of improved coordination, governance, efficiency, joint-working, single-point-of-entry, etc.), we have concerns about breaking the link for people with established local support services. As a result of the centralisation of support ‘under one roof ‘, funding for local services may be put at risk. These are services which have established relationships within local areas and with local areas, and which, if properly resourced and supported, may outlive the public body running the Redress Scheme.
Furthermore, many aspects of supporting individuals and facilitating applications are currently provided by local authority social work. The relationships local professionals have developed will be difficult to replicate quickly in a national body. Ultimately, individuals live in local communities, and will benefit from being linked into a web of support which is itself local and accessible.
For these reasons, while we do see the advantages of bringing administration together, the case for doing so must be very convincingly made, its potential benefits clearly outweighing its risks of disrupting the existing mix of local and national provision.
52. Do you agree that it would be beneficial if the administration of these elements were located in the same physical building? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
No answer to this question.
53. Should wider reparation be available to everyone who meets the eligibility criteria for the financial redress scheme?
Broadly, yes. Access to the wider reparations should be on the basis that the individual experienced abuse while in the care of the state, between certain specified dates. However, we would favour a more nuanced approach to determining access to support than the criteria set for eligibility to financial redress.
Support should begin from initial inquiry, and be available (if desired) in the preparing of applications for financial redress. By virtue of this though, it would not be possible to determine whether someone is eligible for wider reparations on the basis of whether they are eligible for financial redress, as this may not have been decided yet. It may be the case that an individual applications for financial redress is turned down, but that they receive a measure of support through the process, and access to other services.
54. Should there be priority access to wider reparation for certain groups, for example elderly and ill?
Yes. A form of triage and prioritisation will be important, to ensure those in most need, and those with life limiting conditions are responded to early. Each person applying for wider reparations should have their needs and context assessed appropriately.
55. If a person is eligible for redress, should they have the same or comparable access to other elements of reparation whether they live in Scotland or elsewhere?
Yes. However, the services should be made available in Scotland, and people’s actual access to it will be determined by their proximity to relevant offers (groups, etc.) or access to appropriate technology.
It would not be feasible to extend all aspects of the wider reparations to people living in other countries. They should equal right to access, but not have services taken to them.
ACKNOWLEDGEMENT AND APOLOGY
56. To allow us more flexibility in considering how acknowledgment is delivered in the future, we intend to include provision in the redress legislation to repeal the sections of the Victims and Witnesses (Scotland) Act 2014 which established the National Confidential Forum. Do you have any views on this?
In our view the powers should be taken. The decision whether to use them should be considered further, but it is important that Scottish Government and its stakeholders have the ability to make changes in the future, if so decided.
57. Do you have any views on how acknowledgment should be provided in the future?
58. Do you think a personal apology should be given alongside a redress payment? If so, who should give the apology?
No answer to this question.
59. Do you think there is a need for a dedicated support service for in care survivors once the financial redress scheme is in place?
Yes. There is a need for a dedicated support service with a single point of entry and access to multi-agency services. Care experienced people who are no longer receiving services, and who are or wish to access their records, are a high-risk group who must be considered within the scope of these services. Moreover, for some survivors they will already have a key person who is offering support, and any development of dedicated service will need to take account of and incorporate these existing relationships.
We think it is odd that these questions of support have been located outwith the sections of the consultation concerned with wider reparations. In our view it is a mistake to separate these things out. The provision of high-quality, person-centered support (including but not limited to assistance in making applications for financial redress) represents reparation. Making amends for failures in the past by ensuring that today eligible individuals have access to all the support they need. Indeed, the Redress Scheme should be constructed with a view to the Self-Directed Support (Scotland) Act 2013, providing people with control over how they wish to direct and receive support. (In contrast to a national public body commissioning services which victims / survivors then have to ‘fit’ into.)
60. Do you have any initial views on how support for in care survivors might be delivered in Scotland, alongside a redress scheme?
Please see answers to earlier questions.
For further information, please do not hesitate to contact:
Director, Social Work Scotland
Priorities for 2020-21 Budget – SWS Justice Submission
This paper has been written in response to the pre-Budget Scrutiny request for the Justice Committee. With further change expected on the horizon, our submission calls for the Scottish Government and its partners to take a forensic look at how the justice system is working (and CJSW place within it), with a view to establishing a clearer, collective vision of what we are trying to build in Scotland.
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to feed into the Justice Committee’s scrutiny of the Scottish Government’s budget for 2020-21.
Budgets provided to the public, third and voluntary sectors for health, education, employment, through-care, family-contact, rehabilitation/re-offending, in-cell technology and other services provided to prisoners
Criminal justice social work (CJSW) provides a range of statutory services to individuals in
CJSW therefore plays a central role in the justice system, and in particular the rehabilitation and management of individuals subject to community-based supervision. As the responsible agency for managing the risk of serious harm and the needs of people subject to statutory supervision, the ‘risk’ sits squarely with CJSW.
Funding is provided to local authorities in a ring-fenced grant provided under sections 27A
“Of the forecasts provided by Justice Analytical Services, even a ‘LOW’ uptake would result in approximately 1,300 additional people across Scotland receiving community sentences. If the policy has greater impact, then numbers could further increase. It is likely some of this number will require additional support to complete their sentence successfully. Local Authority areas and service providers need to be able to meet this demand for support.”
The report goes on to argue that research undertaken by Progressive Partnerships, an independent research organisation, suggests that “a proportion of these people (i.e. those currently receiving a prison sentence of up to 12 months that might now get a CPO) may have more complex needs that will require more support than the current ‘average’ person completing a CPO”.
It is true the total number of CPOs in Scotland has declined since their introduction in 2011 from a peak of 19, 451 in 2015-16 to 17,834 in 2017-18.3 However, notwithstanding the impact of PASS described above, there have been several practice developments in the last 10 – 15 years that have had a significant impact on CJSW workloads and the ability of services to work effectively with individuals and are not fully funded. These include, but not limited to:
Additionally, other developments in the justice environment continue to increase workload and pressure on a strained and over-stretched CJSW system. Many of these developments are, in themselves, welcome. But most are driven forward in isolation, with too little consideration given to the compound effect they collectively impose on CJSW. For example, Social Work Scotland members report a very significant rise in the requirement for CJSW to attend Parole Tribunals and Hearings in prisons. As this mostly requires attendance in person this development absorbs worker’s time. Relatedly, the lack of availability in the Scottish Prison Service of reliable connectivity limits CJSW ability to use videoconferencing with prisoners, for both Integrated Case Management (the process by which SPS manage statutory prisoners) and the development of CJSW report. Other examples of developments putting pressure on CJSW is the push to increase bail supervision numbers, and to offer Diversion to greater numbers.
Despite the seismic change in the demands and requirements placed on CJSW since the early 2000s, there has not been a comprehensive review to quantify and accurately cost the component parts of the work CJSW does. The S27 funding formula has been reviewed, but this was limited to how the grant is distributed. (In simple terms, the workload element was reduced from two-thirds to half, a rurality element was introduced and social and economic indicators are applied.) We believe the funding formula now requires comprehensive review.
Under the current formula, CJSW are actually penalised for reducing re-offending, as retrospective three year activity levels are the basis for allocation. Moreover, there is a clear case to consider more than one year grant allocations, as the current approach limits effective planning, being confirmed only in December of the preceding year (limiting our ability to respond constructively to reduced allocations). Previously, under the previous funding formula, whilst not entirely satisfactory, there was a mechanism to ‘soften’ any significant reductions in allocation from one year to the next.
We believe there is also a clear case for removing the separation of Part 1 and Part 2 funding, and instead providing local authorities with one S27 grant allocation. This would enable greater flexibility to allocate resources in accordance with local strategic plans and priorities.
In 2014 the Scottish government initiated research into the unit cost of a Community Payback Order (CPO). We are not aware that the final report was published, perhaps reflecting the complexity of establishing a ‘unit cost’ of a CPO, given the diversity and geography of Scotland and/or the difficulty of assimilating all the relevant expenditure/resources involved in delivering CPOs. In the absence of that research, in 2015-16 the cost of a CPO was estimated at £1,771. This figure was calculated by dividing
Indeed looking at the system as a whole, the actual cost of delivering CJSW services in line with National Outcomes and Standards for social work services in the criminal justice system and associated Scottish Government practice guidance, including the alternatives to prosecution schemes (Diversion, Fiscal Work Orders) and statutory community supervision (e.g. Throughcare services both during a prison sentence and post release) has not been accurately costed this century. Despite the fact that since 2000 the demands on CJSW have increased exponentially, driven by successive waves of criminal justice policy innovation and reform. Such an analysis, to identify the current actual cost of CJSW, could be done by conducting a time and motion study to assess the cost of producing a CJSW report, completing LS/CMI (including the extensive risk of serious harm component), managing an individual on a prison licence, etc.
This is not a call for a return to a justice system (and associated policies and practice) of the 1990’s. Social Work Scotland, along with many other informed stakeholders, strongly support many of the developments of recent years, encouraged that policies are driven by evidence and a commitment to human rights. But we cannot build or maintain a system on the strength of ideas alone. The system must be built methodically, on robust, appropriately resourced foundations; of which CJSW is one. This argument was made repeatedly in the written submissions and oral evidence (including from Victim Support Scotland and the Sheriff’s Association) heard by the Justice Committee this year, in considering the proposed extension to PASS. These made explicit reference to the need for more resources for
In considering the resource requirements of the criminal justice system, another factor which must be taken into account is the recent national public sector pay award. This has not been funded by Scottish Government, and in the six months since coming into effect Social Work Scotland members are reporting a serious impact on budgets. A survey of local authorities showed that, of the 23 that responded, 21 are required to fund the pay award from the S27 grant. One local authority calculates that they will have to find almost £1 million to cover the pay award between 2018 and 2021; that money will have to come from CJSW budgets. In another local authority, their small uplift in Part 1 funding in 2019-20 of £50,000 is less than the cost of the pay award. This situation creates serious challenges in filling posts when they become vacant, and creates pressure to re-design or re-organise services to meet the budget short fall. However, the time required to do this properly, with the requirement to consult and work with staff and unions, inevitably means that savings are not going to be achieved until future financial years. And in that time there will no doubt be further changes and funding reductions.
It is understood the S27 grant is made up of the ‘criminal justice social work’ allocation in the Scottish Government budget, topped up from money in the community justice ‘offender services’ budget. The former budget has remained static for several years at £86.5 million.
In 2017-18 the total allocation to CJSW including money from ‘offender services’ was £98,819,949; since then there have been marginal increases to £100,080,038 in 2018-19 and £100,115,038 in 2019-20. As set out in the paragraphs above, we believe that this has led to significant, systemic underfunding of CJSW. This is impacting on the ability of CJSW to deliver on the three key outcomes set out in NOS – reducing reoffending; promoting social inclusion; and public protection and community safety. And this will, in turn, impact on the system’s collective ability to deliver key Scottish government policy initiatives, such as PASS, community justice and bail supervision. CJSW is centre stage in efforts to
The resource requirements of such a key player must be properly understood and fully met. Longer-term challenges and financial requirements to tackle issues such as staffing levels in prisons, over-crowding, drug use, safety and security of staff and prisoners, the use of the open estate and an ageing prison population.
A number of developments are currently underway which will present financial challenges. Perhaps most significant is the work instigated by the Health and Justice collaboration Board to integrate health and social care in prisons. This is a programme Social Work Scotland is proud to be involved in, and tests of change are currently underway in six prisons. The integrated health and social care in prisons programme gives us a valuable opportunity to explore how health, well-being and social need affect the risk of offending in the future, and to work across statutory and voluntary throughcare systems to deliver a more holistic, individualised and integrated response to individuals, reducing the risk of
Elsewhere in the justice landscape, there are some potential efficiencies to be made in developing integrated, multi-disciplinary services and by reviewing and aligning third sector services in prison. To date these have grown organically, rather than through any strategic needs assessment and commissioning plan. It is likely, therefore, that they will not cover all current (and the expected increase) in needs which we will see in our prisons. In the context of integrated health and social care provision in our prisons (as described in paragraph above) we will need to review which and how services have been delivered in prison, and consider provision within the wider commissioning and procurement framework.
There remains a lack of data around the health and social care needs of people in prison, which some tests of change and a Government commissioned strategic needs assessment will seek to rectify in the next few months. Like the Scottish population as a whole, the prison population is ageing, meaning there will continue to be a greater number of people who are frail, and require additional support. But the prison population also has significant levels of need in terms of mental health, addiction, learning disability and neuro-diversity.
These needs impact on people’s capacity to make use of any opportunities for learning and development in prisons and then to successfully reintegrate into their communities on release. The prison estate does not currently have the capacity to meet the needs of a growing population of people with complex age and/or health related conditions. Without investment in the estate, this means care will likely be delivered in inappropriate settings, potentially without the equipment that would be deemed necessary in community settings. This not only places people in receipt of services at risk, but workers too. The Justice Committee may want to consider the elements both of the prison estate and the delivery of a whole systems approach to health and social care in a justice setting in its future planning.
Views on how to achieve a rebalancing over the longer-term in expenditure on prisons and that of community-based alternatives to incarceration and preventative spend, including the challenges of provision in remote or rural areas.
If we are to achieve this re-balancing, and potentially unlock resources to re-distribute to community-based alternatives, Scotland needs first to agree and articulate what the role of prison is. If our national aim, as articulated by Professor Cyrus Tata and others, is that imprisonment should be used sparingly, only where warranted on the grounds that the risk of serious harm is so great as to require confinement, and never on the basis of ‘rehabilitation’ or ‘self-improvement’, we should say so clearly, and work out the policies to achieve it. Over time we would see a reduction in the prison population, freeing up
With such an agreement about the role of prison in place, the change itself would require robust strategy, energy, collaboration, and, perhaps most importantly, bold leadership and financial investment. The newly established Community Justice Leadership Group, co-chaired by the Cabinet Secretary and COSLA’s Community and Wellbeing Spokesperson, offers an opportunity to explore whether this is possible. The group could set a clear vision for what the justice system in Scotland to look like in 20 – 30 years’ time, and agree the outlines of how we get there. (An example of this scale of ambition is the Housing to 2040 vision.) The group could crystallise what a compassionate justice system looks like, how it balances responsibilities, and identify the milestones on the journey to achieve it. Critically, the group could set coherent ‘stretch aims’ for the system, such as limits on the number of
However, to do this right requires both time and investment. A system built up over decades, which itself reflects public attitudes and culture with roots which go even further, cannot be transformed through policy documents and rhetoric. Vested interests will need to be challenged, all parts of the system be open to radical change, and resources made available to facilitate the transition. Simply put, the current system will need to continue to be maintained (and improved) while the new one is built. That cannot be done (or at least cannot be done quickly) with no increase in overall spending. For example, to win public (and some professional) support for a compassionate justice system, significant investment will be needed in deploying and evaluating the effectiveness of community-based interventions. We know such interventions work, but to fundamentally rebalance the system Scottish Government and its partners will need to go further than securing the support of experts.
The alternative is that public sector money will continue to be invested in an increasingly complicated version of the current system, with policy innovations woven into a prison-centric infrastructure. That will fail to unlock the potential of those policy innovations, and make it less likely that we develop across Scotland the integrated services needed to prevent offending and re-offending in our communities. It will also mean we fail to unlock the significant resources allocated to a growing and aging prison population.
For further information, please do not hesitate to contact:
Consultation response: Age of Criminal Responsibility (Scotland) Act
Consultation response: Presumption against Short Sentences
Consultation Response: Transforming Parole in Scotland