6 Steps taken to rectify under-performance |
131. The MoJ, ALS and Capita have taken a number
of steps to rectify the underperformance of translation services;
these have involved measures taken internally by ALS and Capita
and joint steps taken with the MoJ to reduce demand whilst problems
are resolved and to enhance the oversight of the contract.
Initial steps taken to rectify
RESTRICTING THE VOLUME OF WORK
132. When operational problems first emerged
HMCTS quickly reverted large parts of its business to old arrangements
and went back to booking interpreters directly. Mr Handcock explained:
[W]e had a contingency plan; we hadn't disbanded
the teams of people that had been doing the work inhouse. We tracked
where they had gone, where they had been redeployed, so that we
could reassemble them very quickly. So we still had the capacity
across Courts and Tribunals to revert bookings. It became obvious,
really about midway through the first week of contract, that it
was problematic. We were getting feedback very quickly that bookings
weren't being fulfilled in the right numbers. So we immediately
took back all of our short notice bookings; in effect, we took
back about 20% of the work. We did that because we were then catching
the failures, if you like, so we were wicketkeeping the ALS system
for a while, and to a small extent we are still doing that. So
within about 10 days of contract problems we were on the problem
and we had our own teams of people picking up the slack.
ENHANCED OVERSIGHT BY THE MINISTRY
133. The MoJ procurement directorate is responsible
for oversight of the contract. A recovery team was established
which has been closely engaged with ALS and Capita in attempting
to resolve outstanding problems.
Project board meetings have been held regularly to monitor the
execution of the Framework Agreement. In the interim the procurement
directorate receives updates from Capita TI including: i) a daily
email with booking request fulfilments and commentary on language
where performance has failed; and ii) a weekly summary report
detailing: venues where performance was below 90 per cent; the
top five problem languages; top three areas of complaint; performance
against complaints; and the actions that have been taken to rectify
the problems detailed. Following the NAO report, the MoJ also
began monitoring the number of interpreters available to ALS as
well as their vetting and skills. The MoJ threatened to rescind
the contract on 22 February 2012 and began to penalise Capita-ALS
in the following May. The level of penalties applied is discussed
INVESTMENT BY CAPITA
134. When problems first surfaced, Capita enabled
ALS to draw upon Capita's wider resources and skills to enhance
and strengthen its service delivery. In September, Capita estimated
that they had invested in excess of £3.5 million to rectify
the service inadequacieswhich had not been foreseen at
the time of the acquisitionby establishing a team of experts
to support process implementation and to provide management information.
Investment in staffing included the provision of 75 FTE additional
staff to work with bookings and improved handling of calls and
complaints. Capita also stated that it had: absorbed costs in
relation to increased interpreter payments, bonuses and incentives
and travel costs which were adjusted after implementation; invested
in the IT system; and rectified inadequate processes and procedures.
By the end of October, the amount invested had increased to £5.4m.
135. Capita stated that it "do[es] not believe
ALS would have achieved the service delivery improvement without
Capita's operational expertise and financial backing."
Capita replaced all of the ALS senior management team as it felt
that those involved had insufficient experience and capability
to deliver the service, or handle and address the issues being
faced by service users and the Ministry in its capacity as the
commissioning public authority. They were not satisfied with ALS
management's attitude to business process adherence, implementation
planning, audit management, and service delivery. Mr Wheeldon
told us he saw it "slightly differently". He said: "[t]he
route we may have taken with the Ministry of Justice would have
been different had we not been part of Capita. The way we rolled
it out and various other things would have been different, so
it would be impossible to say, had we been on our own, what it
would have looked like." 
136. ALS clearly needed significantly
more resources than it had at its disposal to deliver the service
levels that it promised under the Framework Agreement. The Ministry
of Justice was only saved from its failure to conduct proper due
diligence, or to take account of the views of consultees, and
from the likelihood of subsequently being forced to terminate
the contract, by the fact that Capita bought ALS and has been
willing to invest heavily in the infrastructure required to salvage
an operating model under the Framework Agreement.
The extent to which remedial
action has been effective
137. According to the MoJ, its work with Capita-ALS
to rectify initial problems with performance and to develop a
robust complaints process now meant that it was "of the view
that the approach we have taken in outsourcing the booking of
interpreters is one that works, and can provide savings to the
In asserting that the project was succeeding, Helen Grant MP pointed
to the improvements and investment that Capita-ALS had made, and
the joint work that the Department and Capita had made in relation
to the portal, the use of it and the information that could be
usefully taken off it, and cited higher fulfilment rates which
were 3% short of the KPI at the time she gave evidence.
Both the Senior Presiding Judge and the Magistrates Association
noted recent improvements in performance, which the former described
as "substantial". But they had some outstanding concerns,
and some witnesses from the interpreter community questioned the
extent to which contract compliance had actually been improved
by the joint work of Capita and the MoJ.
IMPROVED FULFILMENT RATES
138. Between 30 January and 31 August 2012, there
were 72,043 'completed requests' for language services. 8,222
(11.4%) of these were recorded as being cancelled by the customer
i.e. HMCTS or NOMS. 11% of the remainder of 'completed requests'
were not fulfilled by ALS, equating to an 89% fulfilment rate
over the duration of the contract up to 31 August. By early November
the rate was reported to be 95%.
139. We heard that there were some anomalies
in these data which suggest that they are likely to represent
a significant over-estimate of true fulfilment rates and therefore
must be treated with some caution. As discussed above, the old
arrangements continued to be in place in part throughout our inquiry.
For example, the Involvis survey found that in August almost 80%
of NRPSI members who responded were continuing to receive direct
calls from courts wishing to book an interpreter. The NAO estimated
that use of the old arrangements accounted for approximately one-fifth
of interpreting work in courts and tribunals, and this was supported
by Mr Handcock who told us this related to short-notice bookings.
When we sought verification of the volume of total requirements
that ALS were providing at the time of our hearing with Capita
in early November, Ms van Loo explained that in September and
October they were "quite close" to receiving requests
for 100% of the available court work and 85% to 90% of tribunals'
140. In addition, we heard that cancellations
by the customer mightinclude cases where in reality ALS was unable
to fulfil the request, for example, if a court rang ALS when somebody
attended court too late for them to be of use, or with skills
in the wrong language, and HMCTS or NOMS subsequently cancelled
the requirement. The NAO established that complaints and material
failures were in some cases being logged as customer cancellations.
We were assured by Capita and the MoJ that this anomaly was a
training issue which had been subsequently rectified.
141. It has been difficult to ascertain what
percentage of the total bookings and requirements for the courts
service ALS has been operating in each month since the MoJ partially
reverted back to the old booking systems. Performance
figures clearly do not reflect the company's fulfilment against
100% of the requirements of HMCTS and they should be altered,
retrospectively and in the future, to indicate this.
142. The level of customer
cancellations seems rather high.
We recommend that Capita TI reissues guidance to staff regarding
the logging of customer cancellations. We also recommend that
the MoJ undertakes an audit of fulfilment data with a focus on
the reasons for customer cancellations, and uses their findings
to seek to reduce the level of these by its agencies' stakeholders.
VARIATION IN PERFORMANCE
143. The Senior Presiding Judge told us that
he believed that ALS' performance in tribunals was more variable
than in courts.
MoJ and Capita acknowledged that there continues to be variance
in performance across regions and jurisdictions.
For example, the lowest rates of fulfilment for courts and tribunals
are in the South West and Wales.
We heard that as data on such variations have emerged, so more
targeted recruitment of interpreters has been possible.
Operational performance within other justice sector agencies appears
to have been more positive. For example, the service level within
NOMS had been very high, with fulfillment rates often reaching
100%. NOMS were
reportedly very satisfied with this service; only three complaints
had been made up to the end of August.
Ms Beasley told us that she understood that those police forces
using the contract were also satisfied. The intention is that
more police forces and the CPS would use the contract in future.
In addition, the new arrangements are not yet available to solicitors
who require an interpreter for meetings with clients outside police
stations and courts.
encouraged that the feedback to MoJ suggests that participants
within agencies of the justice system other than courts and tribunals
are satisfied with ALS' performance under the contract.
RECRUITMENT OF INTERPRETERS TO THE
144. On 25th September there were 1135 interpreters
on Capita's supplier list, 932 of whom undertook work in August.
There had been an overall increase in the number of interpreters
used by ALS since February but a decline since the period March
to May 2012 when there were over 1000. This is likely to have
occurred as checks, for example, on CRB status, and qualifications
and experience, have resulted in suspension from the list in the
absence of a full audit trial to verify them.
Capita also reported to us a decline in the use of lower tiered
interpreters: 170 tier 3 interpreters supplied services for ALS
in February and only 60 in August, equating to a 65% reduction.
There was a 44% and a 49% increase in the numbers of tier 1 and
tier 2 interpreters respectively.
145. In August 2012, Capita-ALS' performance
levels against the distance indicator remained low, at 34%.
Ms van Loo admitted that this KPI was not in reality achievable.
Our evidence from the Magistrates Association discussed above
indicates that the distances travelled by interpreters may have
increased in comparison to the previous arrangements. Several
respondents to our online consultation supported this. The following
comments are indicative:
There were so many jobs in London and in the southeast
of London without interpreter in my language; I live in the North
Midlands which is very far from London, but because it is urgent,
they were happy to pay me in my terms and condition, plus a train
fare which is a fortune for buying a return train fare on the
day to southeast of London. I felt it is like a joke as I know
there are so many NRPSI in my language living in London but they
all refused to work for ALS. The MOJ would save a fortune for
taxpayer if using the old system, instead of using ALS.
90% of the work ALS offers me requires me to travel
100-400 miles each way. Usually for a 09:30 appearance, which
means I would leave for a job at around 04:00 AM. Travelling at
this time for this distance, and not being even paid for the first
hour each way is not tenable, and impacts on your alertness.
146. There appear to have been some improvements
in the availability of some less common languages. In August 2012
data from the National Register and ALS' supplier list were compared
and the latter had a higher number of interpreters for nine languages
and lower levels than the former in only one language. 
Nevertheless, there may be concerns that those possessing skills
in rare languages but who are not on the register of professionals
may not be of sufficient quality; no distinction was made by the
MoJ as to the tiers at which those on ALS' list were operating.
REDUCED LEVELS OF COMPLAINTS
147. There were 3,937 complaints for completed
requests over the eight months to the end of August, equating
to 5% of completed requests. In July, 6% of complaints related
to quality. The Minister told us that performance was "getting
better steadily and quite swiftly". She said complaints were
going down. For example, in criminal courts the rate of complaints
fell from 9.9% in February to 1.4% in August; in civil and family
cases from 5.8% to 0.6%; and in the tribunals from 17.1% to 5.2%
over the same period.
148. Mr Fassenfelt observed that although the
Magistrates' Association continued to receive complaints, especially
about the standards of interpreters, the level of comments on
performance had diminished, although he was not convinced that
this fully reflected a genuine improvement in performance: "
am not sure whether that is an impact of Capita introducing a
different management team, whether the Ministry of Justice has
got a better hold on the contract, or whether magistrates have
just got fed up with moaning about it."
Another witness, an immigration solicitor, similarly believed
that complainants had become less likely to object, for example
to prevent on-going adjournment and disruption to court proceedings.
AN IMPROVED COMPLAINTS PROCESS
149. We heard that there is now a single register
and a proper complaints system; if there are complaints against
particular interpreters and they are upheld, Capita TI remove
them from the list. The MoJ saw this as an improvement on the
quality assurance processes in the previous system.
For example, whereas previously court staff would only have been
able to prevent an interpreter from working in their own court,
the new system ensures that if interpreters are found not to be
performing to the right standards, they are not used anywhere
else operating under the Framework Agreement.
On the other hand, if Capita TI suspends an interpreter from their
list, that interpreter would still be free to take work from elsewhere,
including within the justice system, as the complaint has not
been investigated through their membership body. This is one of
the factors motivating NRPSI to acquire statutory regulatory status.
150. The online complaints process for users
of the service is now backed up by dedicated staff and field-based
relationship coordinators who work with justice agencies to resolve
complaints. Capita's stated aim is now to resolve each complaint
within one working week and in the process independent advice
is often sought, particularly with regards to the quality of translations
themselves. Up to 31 May 2012, the complaints procedure had led
to mandatory familiarisation workshops for 120 interpreters; a
further 9 interpreters had been told that their services were
no longer needed.
Some of our witnesses believed that there was a fundamental lack
of transparency in complaints procedures as complaints made through
the online portal went directly to ALS, which is also the service
is discussed in the next chapter.
MIGRATING WORK BACK TO ALS
151. When the MoJ gave oral evidence they were
in the process of piloting a new system for short-notice work
at 19 magistrates' courts and a crown court. The remainder of
this work was still being commissioned directly from interpreters
under the previous arrangements. The MoJ was sufficiently satisfied
with progress on this pilot that the Midlands and Northwest HMCTS
regions had begun to return their short-notice bookings to the
contract. Mr Handcock
explained: "We will just watch carefully to make sure that
that works and then we will begin to migrate the rest back. By
the time we have been right round the country and finished the
migration I suspect that almost all of the work will be back on
The Senior Presiding Judge, Lord Justice Goldring, informed us
in December that performance had improved to such an extent that
he had recently agreed that all bookings in all magistrates' courts
in the regions above should be done through ALS.
He told us that problems remained in courts obtaining interpreters
at short notice, particularly for some less frequently spoken
languages, and that performance in tribunals may be less consistent
that in courts.
152. We are pleased to hear
that service levels have improved markedly in recent months and
that this will allow HMCTS to book all of the interpreting work
it requires through Capita TI in the near future.
We call on the Ministry of
Justice to keep us apprised of fulfilment rates, and their estimation
of the volume of work demanded by HMCTS that Capita TI are being
asked to fulfil, on a monthly basis until we can be satisfied
with the extent of improvement.
INACTION IN IMPOSING PENALTIES
153. No finesknown as service credits,
which represented a percentage charge which could be levied for
each percentage of underachievement against KPIs for the fulfilment
of assignments and timely deliverywere imposed on Capita-ALS
by the Ministry of Justice in the first three months of operation.
The Ministry told the NAO that it had taken into account Capita's
additional investment in its decision to waive what amounted to
£11,000 worth of penalties.
The MoJ subsequently told us that it also believed the emphasis
was rightly placed on improving service performance at that stage.
As we noted above, there had also been a threat to withdraw from
the contract in February. These fines seem rather low in the context
of a Framework Agreement reported to be worth £70 million
over five years.
Ms Lee told the Committee on 23 October 2012 that she calculated
that the service credits and other penalties equated to approximately
£15 per unfulfilled case which in her view was insufficient
incentive for Capita-ALS to improve performance.
154. The Ministry of Justice also has the power
to audit Capita. The NAO was critical of the fact that the Department
had not done so by the time of their report, and, at that stage
it had no plans to do so.
The MoJ told us that it is now conducting spot checks and audits
as part of its ongoing management of the contract; three sample
audits had been undertaken by the end of October and the intention
is to continue to audit at monthly intervals.
The cost of remedial action and
implications for cost savings
155. Several of our witnesses raised concerns
that lower quality interpreting might increase costs elsewhere
in the system, drawing our attention to many examples of: repeated
bail and remand hearings, with defendants being remanded in custody
unnecessarily in the absence of an interpreter; adjournments and
appeals resulting in costs to legal aid; wasted court and police
time; and irrecoverable proceeds of crime when prosecutions collapse.
In instances where an interpreter does not attend, or is
unsuitable, such as those described above, the court has had no
other choice but to adjourn to a later time or date in the hope
that an interpreter will be present. As we also noted above, the
impact of this has been to delay progression of cases through
the court system, sometimes repeatedly; to cause individuals to
be remanded in custody overnight or for longer periods because
of the absence of an interpreter; and to increase the overall
cost of proceedings as advocates and others, including victims,
defendants and witnesses, including expert witnesses such as the
police and other public sector professionals, are required to
return to court.
156. Despite the difficulties with the operation
of the Framework Agreement, the MoJ claims it will save £15m
in the first year, representing 50% of the estimated annual cost
of interpreters under the previous arrangements.
While the annual cost of the contract is estimated at £15
million, Capita TI is only paid for what it delivers; the MoJ
has estimated that this is likely to amount to between £6
and £10m over the first year. Mr Parker admitted that Capita
TI had not yet made a profit from the contract, although he hoped
that they would begin to do so in the next financial year.
157. The MoJ has projected some direct annual
costs that it was likely to incur as a result of the problems
with the contract, including £4 million for off-contract
payments to interpreters under the old arrangements, primarily
for short notice bookings, and £60,000 for increases in ineffective
trials in magistrates' courts.
Ms Beasley explained why the estimate for ineffective trials seemed
low: "Our estimate is that for an ineffective trial in the
magistrates' courts the cost is about £650 and it's about
£1,500 in a Crown court. It depends crucially on the assumptions
that you make about what people do when a particular trial is
ineffective. If you are the solicitor in the case, you have probably
so much work to do that you maybe waste a very short period of
time at court and then you would go on and do other work."
While there has been a doubling of ineffective trials, overall,
there are still relatively few. Other assessments place the costs,
for example of a Crown Court retrial, significantly higher, for
example, for one trial which collapsed after four days following
interpreter error, the wasted expenditure was estimated at £25,000.
In addition, these calculations do not include the cost of adjournments
of court and tribunal hearings that were not related to trials.
158. In October, the Ministry provided us with
an update on its expenditure: the actual off-contract payments
amounted to £1.55m between February and the end of September.
The initial monthly costs of reverting back to the old booking
systems were £500,000; by September this had fallen to just
Initial estimates did not include any savings on administration
and excluded agency administration. The Ministry has not estimated
the additional level of administrative expenses that will have
stemmed from Capita's underperformance and dealing with the high
volume of complaints and additional monitoring that has been required
by HMCTS and the MoJ; these are likely to amount to considerably
higher administrative expenses than under the previous system.
159. Several of our witnesses believed that this
underestimated the true public cost of underperformance. We heard
from one solicitor's firm that felt there was no option but to
obtain Legal Services Commission funding for an independent interpreter
to attend all hearings as the quality of the interpreters at the
Immigration and Asylum Chambers could no longer be relied on;
she estimated that costs to legal aid amounted to £400 in
one particular case that has been adjourned, including independent
interpreter fees, an additional hearing fee and the travel costs
of the advocate.
There have also been examples of wasted cost orders being taken
against Capita-ALS, for example, a recent case in Cambridgeshire
resulted in Capita-ALS being requested to pay £500 for prosecution
costs, £160.75 for defence and the bus fare for the defendant.
160. The various ancillary costs appear to have
proved difficult to quantify. Neither the Magistrates' Association,
nor the Law Society, were able to provide us with any assistance
in quantifying the extent of disruption to court proceedings which
has stemmed from problems in implementing the Framework Agreement.
The Ministry of Justice was unable to answer a parliamentary question
regarding how many civil court cases had been adjourned as a result
of a lack of an interpreter.
161. While the contract is
delivering significant cost savings to the Ministry of Justice,
these are not at the level promised. Additional costs are currently
being borne by the contractor and there may be future ramifications
for the Department when it comes to re-commissioning interpreting
and translation services if these financial issues are not resolved.
We are concerned that the existing arrangements are financially
unsustainable in the sense that Capita TI is propping up the continuation
of the Agreement, so the Department's savings are effectively
being secured at the company's expense. There is a distinct risk
that the MoJ will not be able to continue to realise the same
level of cost savings in the future and that when the time comes
to re-tender the contract there may be an insufficient supply
of professional interpreters to furnish it. The MoJ would then
be left with fewer savings and an enduringly poorer quality of
service. The MoJ
must get a better grasp of the costs of underperformance. It is
unacceptable that existing cost figures do not account for cases
that have been (repeatedly) adjourned because of interpreting
problems and those in which a defendant has been unable to apply
for bail and has consequently been remanded in custody. In its
response to this report and at regular intervals thereafter we
call on the Ministry to inform us of its updated assessment of
its cost savings.
233 Q 203 Back
Q 192 Back
Ev 52 Back
Ev 64 Back
Ev 52 Back
Q 109 Back
Ev 30 Back
Q 216 Back
Q 125 Back
Q 212; The National Audit Office, The Ministry of Justice's
language services contract, September 2012, para 3.10 Back
Qq 124-125 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 3.2. See also
Q 32 Back
Q 133-134 [Ms van Loo] Back
Ev 108 Back
Q 129 [Ms van Loo] Back
Ev 64 Back
Q 129 [Ms van Loo] Back
Q 233 Back
Ev 69 Back
Q 233 Back
Ev 48 Back
By early November the total number on the database had increased
to 1167. Back
Ev 30 Back
Ev 57 Back
Q 130 Back
BELIEVEINJUSTICE, respondent to online consultation, see Annex. Back
Fred, respondent to online consultation, see Annex. Back
Ev 53 Back
Q 216 Back
Q 50 Back
Ev w72; See also The National Audit Office, The Ministry of
Justice's language services contract, September 2012, para
Q 214 [Ms Beasley] Back
Q 215 Back
Ev w124 Back
Ev 83, citing a letter from Peter Handcock to Sir Alan Beith,
Ev 34 Back
Ev 53 Back
Q 212 Back
Ev 108 Back
Ev 109; The National Audit Office, The Ministry of Justice's
language services contract, September 2012, para 3.9 Back
Ev 30 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 1.3 Back
Q 36 Back
The National Audit Office, The Ministry of Justice's language
services contract, September 2012, para 3.9-3.13 Back
Ev 69 Back
See Ev w13, Ev w51, Ev 120 Back
Ev w13, Ev 15 Back
Ev 53 Back
Qq 171-2 Back
Ev 53 Back
Q 217 Back
http://www.bbc.co.uk/news/uk-england-london-17709440; Ev w119;
see also Ev 120 Back
Ev 69 Back
Ev 107 Back
Ev w13 Back
Ev w28; See Oxford Times, Drink Driver went wrong way down
an M40 slipway, 14 December 2012 Back
Q 46 Back
HC WA, 19 October 2012, col 482W Back