Guidance on resolving Unpaid Work Requirements and Extensions

Judith Blackman

June 2019

Guidance on resolving Unpaid Work

Requirements and Extensions

Judith Blackman

June 2019

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Contents

Introduction ..................................................................................................................... 3

Guidance………………………………………………………………………………………....3

Good Practice…………..………………………………..3

Mandatory action..……………………………………….3

If action to extend, revoke or cancel is not taken........4

Figure 1: Extending the requirement…………………..5

Figure 2: Upon extension of requirement……………..7

Figure 3: Exceptions to extending requirement...........8

Further questions……………………………………….10

Appendix ........................................................................................................................ 11

Appendix A: Letters to re-engage following extension to requirement…..11

Appendix B: Letter information and N-Delius……………………...……….13

Guidance on resolving Unpaid Work Requirements and Extensions

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Introduction 1.1

On 7th March 2019, the High Court (Lord Justice Leggatt) found in favour of an NPS

appeal and confirmed that although an unpaid work requirement is made for a period of

12 months, a community order unless revoked, remains in force until the hours are

completed, as provided in section 200(3) of the Criminal Justice Act 2003 (CJA). This

means that:

• An application to extend the requirement can be made after the 12 months have

expired.

• Enforcement action can only be taken if there are outstanding hours meaning that

the order is in force.

Consequently, applications for extension can be made either prior to, or after the 12

month point in order that the requirement can be completed or any necessary breach

action can take place.

Guidance 2.1

For NPS and CRC Offender Management functions:

Good Practice

• It is good practice that applications for extension are identified at the 9-month

point of the order or earlier if needed and presented to the court before the 12-

month expiry date of the requirement.

• Any orders that are identified as being in breach prior to the 12-month point

should have the case listed for breach as soon as possible.

Mandatory Action

• Orders that reach the 12-month point with UPW hours outstanding (either with a

standalone UPW requirement or as part of multiple requirements) MUST have

some action taken, either to:

▪ Extend the requirement or,

▪ Cancel the requirement (appropriate for SSOs with single

requirements) or,

Guidance on resolving Unpaid Work Requirements and Extensions

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▪ Revoke the order (applicable to COs with a single UPW

requirement)

The above actions apply unless breach proceedings are pending that were

commenced prior to the 12-month point being reached.

If Action to extend, revoke or cancel is not taken

• The offender would potentially be in breach of s200(2) CJA obligations to

complete the hours within a defined period (i.e. 12 months); unless they had

reasonable excuse for failing to comply.

• The responsible officer could not direct the offender to undertake UPW once the

200(2) period (i.e. 12 months) had expired. The extension is therefore necessary

to enable UPW hours to be enforceable after the original 12-month period has

expired.

2.2

The aim of this document is to provide guidance to NPS and CRCs for those orders,

with hours outstanding, that have not had the Unpaid Work requirement extended within

12 months of the original date of sentence.

Figures 1 and 2 display guidance for:

• Extending the requirement

• Upon extension of requirement.

Figure 3 details exceptions to the extension process:

• Cancelling or revoking the requirement in the interests of justice.

• Orders that on 7th March 2019 had outstanding requirements that have fewer

than ten hours remaining to be worked.

• Orders that were made over 3.5 years prior to 7th March 2019.

Guidance on resolving Unpaid Work Requirements and Extensions

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Figure 1

Extending the Requirement

Extensions: Community Orders

The court’s power to extend an unpaid work requirement of a community order is

authorised under paragraph 20, Schedule 8 to the CJA. It is not an automatic process

as:

• to extend a requirement to complete UPW hours beyond 12 months, the court

must be satisfied that it is in the interests of justice to extend, having regard to

the circumstances which have arisen since the order was made.

Paragraph 25, Schedule 8 of the same Act also states that the offender must be

summonsed to attend. If he/she does not appear in answer to the summons, the court

can be asked to deal with the request in their absence; although they also have the

power to issue a warrant for arrest. The Responsible Officer (RO) should submit the

request to the NPS for processing as per all other summons requests.

The offender has the right to appear to raise objections. For example, in the case of

applications to extend, the offender may argue that it is not in the interests of justice to

extend the period and that a more appropriate application would be to revoke the

order.

Extensions: Suspended Sentence Orders (SSOs)

Where the defendant has been sentenced to complete unpaid work as part of a SSO,

the position is slightly different to that of community orders. Section 200(4) of the CJA

states that the ‘supervision period’ of a SSO continues until the unpaid work hours are

completed, but that it does not continue beyond the ‘operational period’ of the

sentence.

However, where it is apparent that the UPW requirement will not be completed within

the initial 12-month requirement period, then the case must be returned to court and an

application made to extend the requirement under paragraph 18 of Schedule 12 of the

CJA. A hearing will be necessary so that the application can be considered at court.

Unlike COs, there is no power to summons the defendant to the hearing. The

defendant should however be notified, so that they may attend the hearing. It is

important to note that the duration of the requirement cannot be extended beyond the

operational period of the order. Relevant legislation is contained at s.200 (4) to the

2003 Act:

• The Act states that an unpaid work requirement continues until the offender has

completed the specified hours, but that it does not continue beyond the end of

the operational period. An application may be made by the RO to extend the 12-

month period (as required by s.200(2) within which unpaid work must be

completed), but the work must still be completed within the operational period of

the SSO.

Guidance on resolving Unpaid Work Requirements and Extensions

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Applications for extension

Applications for extension need to be listed in local courts.

• The NPS will work with the local CRC and HMCTS to identify in advance, the

number of applications that can be heard in any one court sitting and then

arrange for listings.

• NPS and CRC will work together to ensure that the number of applications put

through by the CRC are able to be processed in a timely way by NPS. Both NPS

and CRCs are responsible for producing the paperwork in relation to their own

cases. It is the responsibility of NPS to undertake quality and legality checks

before putting in front of the court.

Recording (N-Delius) for successful applications to extend UPW

requirements

Subsequent recording of extensions for Community Orders:

• The date by which one or ALL of the requirement/s are required to have been

completed by should be amended to the new date.

• The length of the initial Order should not be amended.

Subsequent recording of extensions for Suspended Sentence Orders:

• The date by which one or ALL of the requirement/s are required to have been

completed by should be amended to the new date (but cannot continue beyond

the operational period of the SSO).

• The operational period of the initial Suspended Sentence Order should not be

amended.

Guidance on resolving Unpaid Work Requirements and Extensions

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Figure 2

Upon extension of requirement

Re-engage the service user

Where a requirement has been extended at court, the next step is for the RO to

attempt to re-engage the service user.

• This can be done in writing or by personal contact to explain that the hours are

not completed and that there is an obligation on their part to undertake the

outstanding hours or be liable to breach action. Appendix A provides templates

for letters of appointment to re-engage for COs and SSOs (templates ‘NAT

Letter to Re-engage’ on N-Delius).

• Upon re-engagement having taken place, consideration can be made for any

change in circumstances (e.g. health deterioration) that may mean in exceptional

circumstances, it is in the interests of justice to apply for the requirement to be

cancelled (for multi requirement orders or SSOs) or the community revoked for

single requirement orders.

Breach

Where a requirement has been extended at court and the service user has failed to re-

engage, breach action will be appropriate.

• The relevant absence date to mark the reason for breach will be the date given

for the re-engagement appointment. It is important to bear in mind when issuing

dates for re-engagement that the breach clock starts ticking with these

appointments and so they need to be made with a plan for listing any necessary

subsequent breaches (see below).

• Any breach will be processed in the normal way, although in a few areas it may

be necessary for NPS to arrange with HMCTS for additional breach courts to run.

• NPS and CRC must discuss in advance, the volume and flow of breach

applications to be made. This is because both organisations need enough time to

prepare their breaches, the NPS must be able to process them within the

required 2-day period and request the summons within 10 days of the relevant

absence date. It is accepted that the breach hearings may themselves take

some time to list and come to court.

Guidance on resolving Unpaid Work Requirements and Extensions

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Figure 3

Exceptions to extending requirement

Cancelling or revoking the requirement in the interests of justice

Where an offender’s good progress provides the basis for an application, two options

are of relevance here:

Cancellation of a requirement

An application can be made to cancel an unpaid work requirement on the grounds of

the offender's good progress. For example, Schedule 12 to the 2003 Act refers to the

circumstances in which it may be appropriate to cancel the requirement for a

Suspended Sentence Order in the interests of justice, taking into consideration the

circumstances which have arisen since the order was imposed.

Cancelling the requirement removes it from a live order, and is appropriate for:

• Community Orders with multiple requirements.

• Suspended Sentence Orders (which is when the order itself needs to remain

live).

Revocation of a requirement

An application to revoke an order is appropriate for:

• Community Orders with a single requirement, given that removal of the unpaid

work requirement means that there is no other reason in having the order in

existence.

Orders that on 7th March 2019 had outstanding requirements that

have fewer than ten hours remaining to be worked.

For all offenders (unless their most recent OASys indicates they pose a high risk of

serious harm):

• These hours will be deemed to be completed given that any appointment to re-

engage the service user will, in effect, complete the hours anyway.

• For these cases, the offender must be credited with the outstanding hours with

the Delius entry of “Engagement completed, hours credited”, and the

outstanding hours should be reduced to zero.

Guidance on resolving Unpaid Work Requirements and Extensions

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• The order should then be terminated on N-Delius in the same way as a

successful completion, unless there are other live requirements as part of an

order with multiple requirements.

For offenders whose most recent OASys indicates they pose a high or very high risk of

serious harm:

• The process of extension and re-engagement should be followed as indicated

earlier.

Orders that were made over 3.5 years prior to 7th March 2019

Orders that were made more than 3.5 years ago should be considered on a case by

case basis according to the following:

• If the offender is assessed as posing a High Risk of Serious Harm, the order

should be returned to court with a recommendation for extension; and with an

explanation given as to why this is proposed given the length of time elapsed

since commencement of the order.

• If the offender has never appeared in court for further offences since the

order was made, the order should be returned to court with a recommendation

for cancellation of the requirement ‘in the interests of justice’ or revocation of the

order if UW is the sole requirement.

➢ If this is refused, then a proposal should be made for extension of the

requirement to enable the hours to be completed.

• If the offender has subsequently appeared in court for further offences; a

determination needs to be made as to whether it appears that the failure to

complete the UPW hours was taken into consideration at this later sentencing:

➢ If it was taken into account, the older order with an UPW requirement

should be returned to court with a recommendation for cancellation of the

requirement ‘in the interests of justice’, as it had been rolled into

subsequent sentencing.

➢ If it was not taken into account, then the order should be returned to

court with a recommendation for extension, with an explanation given as

to why the failure to comply was not dealt with at the time of the

subsequent sentence.

Guidance on resolving Unpaid Work Requirements and Extensions

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Further questions

Further questions for clarification can be directed to:

Judith Blackman judith.blackman@justice.gov.uk for NPS

Tracy Curtis tracy.curtis@justice.gov.uk for CRC

Guidance on resolving Unpaid Work Requirements and Extensions

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Appendix

Appendix A (i) – Letter to re-engage following extension of requirement (COs)

Date: LETTERDATE

Dear FORENAME SURNAME

As you may recall, you were sentenced to

SENTENCINGCOURTAPPEARANCEOUTCOME on SENTENCEDATE. This Order

required you to undertake a period of Unpaid Work.

Although a Community Order with an Unpaid Work Requirement imposed continues in

force until the all of the unpaid hours have been worked, it should be completed within

12 months of the making of the Order (S.200(2) Criminal Justice Act 2003).

This means that the Community Order remains in force until the number of hours

imposed at court have been completed.

Our records show that you completed enter number of hours here of enter number of

hours here hours of your Unpaid Work requirement. You therefore have enter

number of hours here hours outstanding.

I am writing to ask that you attend the enter office here office on enter day,

DD/MM/YYYY at enter time here.

Please note that attendance is required as part of your Community Order, and breach

proceedings can be commenced if you do not attend.

If you are unable to attend at this time, please can you phone enter contact number

here to re-arrange your appointment.

Yours Sincerely

CURRENTORDERMANAGERNAME

Guidance on resolving Unpaid Work Requirements and Extensions

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Appendix A (ii) – Letter to re-engage following extension of requirement (SSOs)

Date: LETTERDATE

Dear FORENAME SURNAME

As you may recall, you were sentenced to

SENTENCINGCOURTAPPEARANCEOUTCOME on SENTENCEDATE. This Order

required you to undertake a period of Unpaid Work.

The unpaid work hours of your Suspended Sentence Order should have been

completed within 12 months of the making of the Order (S.200(2) Criminal Justice Act

2003).

However, the requirement to complete your unpaid work hours continues until you have

completed all of the specified hours, but it cannot continue beyond the end of Order

itself. This means that you are still required to complete your unpaid work before the

end of your Suspended Sentence Order.

Our records show that you completed enter number of hours here of enter number of

hours here hours of your Unpaid Work requirement. You therefore have enter

number of hours here hours outstanding.

I am writing to ask that you attend the enter office here office on enter day,

DD/MM/YYYY at enter time here.

Please note that attendance is required as part of your Suspended Sentence Order, and

breach proceedings can be commenced if you do not attend.

If you are unable to attend at this time, please can you phone enter contact number

here to re-arrange your appointment.

Yours Sincerely

CURRENTORDERMANAGERNAME

Guidance on resolving Unpaid Work Requirements and Extensions

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Appendix B – Letter information and N-Delius

• The letters in Appendix A are named ‘NAT Letter to Re-engage’ in N-Delius.

• Bookmarks are added in various places in the letter (in CAPITALS) to add several

fields e.g. the author. The Sentence details and Date bookmark will only work

when the document is linked to the event. Sentence details cannot pull through if

linked to the offender level on N-Delius. Nevertheless, the letter is fully editable

and live in N-Delius.

• The letter template has been linked as follows:

➢ Contact Type – CP/UPW Work Instructions Issued ➢ Contact Type – Letter to Offender ➢ Contact Type – Other Appointment (NS) ➢ Event Level – Sentence Level ➢ NSI Level – Breach Request ➢ NSI Level – Court Work Requests

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