House of Commons - Interpreting and translation services and the Applied Language Solutions contract

Interpreting and translation services and the Applied Language Solutions contract - Justice Committee Contents

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 under-performance

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.[233]

ENHANCED OVERSIGHT BY THE MINISTRY OF JUSTICE

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.[234] 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 further below.

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 inadequacies—which had not been foreseen at the time of the acquisition—by 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.[235] By the end of October, the amount invested had increased to £5.4m.[236]

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."[237] 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." [238]

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 public".[239] 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.[240] 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%.[241]

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.[242] 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' demand.[243]

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.[244] We were assured by Capita and the MoJ that this anomaly was a training issue which had been subsequently rectified.[245]

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.[246] MoJ and Capita acknowledged that there continues to be variance in performance across regions and jurisdictions.[247] For example, the lowest rates of fulfilment for courts and tribunals are in the South West and Wales.[248] We heard that as data on such variations have emerged, so more targeted recruitment of interpreters has been possible.[249] 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%.[250] NOMS were reportedly very satisfied with this service; only three complaints had been made up to the end of August.[251] 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.[252] In addition, the new arrangements are not yet available to solicitors who require an interpreter for meetings with clients outside police stations and courts.[253] We are 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 SUPPLIER LIST

144. On 25th September there were 1135 interpreters on Capita's supplier list, 932 of whom undertook work in August.[254] 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.[255] 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.[256]

LOCAL AVAILABILITY

145. In August 2012, Capita-ALS' performance levels against the distance indicator remained low, at 34%.[257] Ms van Loo admitted that this KPI was not in reality achievable.[258] 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.[259]

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.[260]

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.[261] 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.[262]

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: "…I 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."[263] 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.[264]

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.[265] 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.[266] 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.[267]

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.[268] 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 provider.[269] This 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.[270] 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 contract."[271] 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.[272] 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 fines—known 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 delivery—were imposed on Capita-ALS by the Ministry of Justice in the first three months of operation.[273] 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.[274] The MoJ subsequently told us that it also believed the emphasis was rightly placed on improving service performance at that stage.[275] 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.[276] 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.[277]

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.[278] 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.[279]

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.[280]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.[281]

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.[282] 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.[283]

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.[284] 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."[285] 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.[286] 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 over £70,000.[287] 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. [288]

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.[289] 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.[290]

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.[291] 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.[292]

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

234 Q 192 Back

235 Ev 52 Back

236 Ev 64 Back

237 Ev 52 Back

238 Q 109 Back

239 Ev 30 Back

240 Q 216 Back

241 Q 125 Back

242 Q 212; The National Audit Office, The Ministry of Justice's language services contract, September 2012, para 3.10 Back

243 Qq 124-125 Back

244 The National Audit Office, The Ministry of Justice's language services contract, September 2012, para 3.2. See also
Q 32 Back