Page last updated at 16 June 2015 at 13:21
Community Right to Challenge
The Localism Act 2011 contains provisions for the implementation of the Community Right to Challenge which has been designed to allow communities more involvement in shaping and running local services. It sets out a right for certain entities to submit an expression of interest in providing (or assisting in providing) services for or on behalf of the Council.
The Council must consider any request received and it can only be rejected on certain specified grounds set out in the legislation. If none of the grounds are applicable the Council must carry out a procurement exercise in accordance with legislative timescales.
Who has the right to Challenge?
The relevant bodies eligible to express an interest in providing services for or on behalf of the Council are:
a) A voluntary or community body which can include an industrial or provident society, a Community Interest Company or a charity;
b) Bodies of persons or trusts established for charitable purposes;
c) A parish council;
d) Two or more employees of the local authority;
e) Anyone else specified by the Secretary of State.
The Statutory guidance defines relevant bodies as the following:
- Voluntary body is a body that is not a public or local authority, the activities of which are not carried out for profit. It can generate a surplus provided it is used for the purposes of its activities or invested in the community.
- Community body is a body which is not a public or local authority, the activities of which are primarily for the benefit of the local community.
The definitions of voluntary and community bodies are intended to cover a wide range of civil society organisations. They reflect the required characteristics of such bodies rather than referring to types of organisational structure. This allows for flexibility to accommodate future forms of civil society organisation.
Which services are included?
An expression of interest can be made in respect of “any service provided by the local authority” and this includes everything that is not a function. Functions are the things the Council is required to do or may do, such as making planning decisions, where as services are provided in order to carry out these functions.
The right only applies to the provision of services; it does not provide for delegation of the functions of the Council. The responsibility for the function itself remains with the Council. A limited number of services, principally those provided to individuals with complex health or social care needs or those which use direct payments are excluded.
The following services are excluded from the community right to challenge, either for a limited period or permanently:
1. Until 1 April 2014, a relevant service commissioned in conjunction with one or more health services by a relevant authority or by a Primary Care Trust, NHS trust or NHS foundation trust (in this paragraph 2.8 referred to as an “NHS body”) under a partnership arrangement or by a relevant authority and an NHS body or a Strategic Health Authority, acting jointly.
2. Until 1 April 2014, a relevant service commissioned by an NHS body on behalf of a relevant authority.
3. A relevant service commissioned or provided by a relevant authority in respect of a named person with complex individual health or social care needs.
Services which are commissioned and managed by individuals or their representatives using direct payments, for example under The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 do not fall within the scope of the community right to challenge as the individuals or their representatives, as opposed to the relevant authority, commission the services. Direct payments are one way of giving people more choice and control over the services they receive. Individuals or their representatives are given funding in lieu of services. They use this money to arrange their own care and support which meets their needs in ways that are most appropriate for them.
How it works
To assist with managing the process and to tie in with budget setting processes, a period has been set for submissions of expressions of interest and this is different for services delivered by the Council and services procured by the Council.
Services delivered by the Council:
1 July to 30 September – you can express an interest in running a Council service
For all services delivered under contract:
The window starts at eight months and end at six months before the end date for the existing contract.
The Council has a maximum of three months to decide whether to accept, modify or reject your proposal. The Council will notify you of our decision in writing.
The Council will aim to begin all procurement exercises within a minimum of 4 months and a maximum of 8 months of deciding to accept the expression of interest. Occasionally this period will be extended where the service is particularly large or complex. If this is the case the relevant body who submitted the expression of interest will be notified and details will be placed on the Council’s website.
During the procurement process the relevant body can make a formal bid to run the service. Other organisations will also have the chance to bid to run the service.
How do I express an interest?
The Council must consider any expression of interest submitted by a relevant body in writing within the specified time periods. The following information must be included in any expression of interest:
1. Where the relevant body proposes to deliver the relevant service as part of a consortium or to use a sub-contractor for delivery of any part of the relevant service, the information in paragraphs 2 and 3 below must be given in respect of each member of the consortium and each sub-contractor as appropriate.
2. Information about the financial resources of the relevant body submitting the expression of interest.
3. Evidence that demonstrates that by the time of any procurement exercise the relevant body submitting the expression of interest will be capable of providing or assisting in providing the relevant service.
4. Information about the relevant service sufficient to identify it and the geographical area to which the expression of interest relates.
5. Information about the outcomes to be achieved by the relevant body or, where appropriate, the consortium of which it is a part, in providing or assisting in the provision of the relevant service, in particular:
(a) How the provision or assistance will promote or improve the social, economic or environmental well-being of the relevant authority’s area; and
(b) How it will meet the needs of the users of the relevant service.
6. Where the relevant body consists of employees of the local authority, details of how that relevant body proposes to engage other employees of the local authority who are affected by the expression of interest.
What will the Council do once it has received my expression of interest?
The expressions of interest will be considered by Cabinet Members.
The decision will be one of three options, 'accept', 'accept with modification' or 'reject'.
The group who has submitted the expression of interest will have presented a strong case that they could provide the relevant service. The Council will then run a procurement exercise to find the best provider.
Accept with modifications
The Council may seek to agree to an expression of interest being modified if the Council would otherwise reject it. If an agreement cannot be reached, the Council may reject the expression of interest.
Government has set out a series of reasons why an expression of interest can be rejected:
1. The expression of interest does not comply with any of the requirements specified in the Act or in regulations.
2. The relevant body provides information in the expression of interest which in the opinion of the Council, is in a material particular inadequate or inaccurate.
3. The Council considers, based on the information in the expression of interest, that the relevant body or, where applicable-
(a) any member of the consortium of which it is a part, or
(b) any sub-contractor referred to in the expression of interest
is not suitable to provide or assist in providing the relevant service.
4. The expression of interest relates to a relevant service where a decision, evidenced in writing, has been taken by the Council to stop providing that service.
5. The expression of interest relates to a relevant service -
(a) provided, in whole or in part, by or on behalf of the Council to persons who are also in receipt of a service provided or arranged by an NHS body which is integrated with the relevant service; and
(b) the continued integration of such services is, in the opinion of the Council, critical to the well-being of those persons.
6. The relevant service is already the subject of a procurement exercise.
7. The Council and a third party have entered into negotiations for provision of the service, which negotiations are at least in part conducted in writing.
8. The Council has published its intention to consider the provision of the relevant service by a body that 2 or more specified employees of the Council propose to establish.
9. The Council considers that the expression of interest is frivolous or vexatious.
10. The Council considers that acceptance of the expression of interest is likely to lead to contravention of an enactment or other rule of law or a breach of statutory duty.
11. The Council considers that acceptance of the expression of interest is likely to lead to contravention of an enactment or other rule of law or a breach of statutory duty.
If the Council decides to reject an expression of interest, the decision and the reasons for that decision will be published online.
The Council will notify the groups who have submitted an expression of interest of the decision and the Expression of Interest Register will be updated to show the outcomes of the process.
If the Council accepts (even with modification) an expression of interest for a service then we will carry out a procurement exercise to select the most appropriate service provider.
The Council will publish the exact timescale once an expression of interest has been accepted.
The procurement process will comply with the Pubic Sector and EU procurement rules. This process is open to competition and involves other potential providers (including private sector) and not just those submitting the original expression of interest.
It is worth remembering that the Right of Challenge does not allow for a service to be run for a trial period. If an expression of interest is accepted, a procurement process will take place.
For further information and guidance please contact Richard Ward (Head of Legal and Democratic Services) firstname.lastname@example.org