Community Right to Challenge

About

The Community Right to Challenge is one of the initiatives that was introduced in the Localism Act 2011, and came into force from 27 June 2012.

It explains the Right for community organisations to submit an expression of interest in running services of local authority and fire and rescue authorities on behalf of that authority.

The right is solely concerned with the provision of services with the responsibility for the function remaining with the local authority.

Community Right to Challenge aims to give communities more opportunities to shape and run local public services where they believe they can do so differently and better.

They may think they could deliver services better or cheaper, make them more responsive to local needs, offer additional social value, or deliver better value for money. The services may be at any scale of activity from very local and small to borough wide.

If a 'relevant body' such as a community group, charity, parish council or group of council staff identify a service they would like to run, they will need to submit an expression of interest to the authority.

We have to decide whether to accept, modify or reject it. If the authority accepts the expression of interest, they must run an open procurement exercise for the service.

The interested group will need to compete with other private, public and voluntary sector organisations who may also wish to run the service.

Where the service is delivered as part of a statutory duty the public authority retains the statutory duty, even if they commission the delivery of services to meet their statutory duties externally.

This is the same as when services are commissioned out now - for example homelessness services can be contracted, but the legal duty towards homeless people remains with the local authority.

Services the community right to challenge applies to

The community right to challenge applies to almost all Local Authority services including those which are currently contracted out to other providers. A small number of services are excluded including those for a named person with complex individual health or social care needs and (until 1 April 2014) those commissioned in conjunction with the NHS.

The legislation:

  • allows local authorities to specify when they will consider community right to challenge applications
  • outlines the grounds for refusing applications
  • outlines wider factors which local authorities need to consider in coming to a decision, including economic, social and environmental wellbeing circumstances.

If you wish to make a formal expression of interest, then please complete a form and submit it by sending it to us by email or post. A link to the form is available from the Step 1 tab above.

We will make a decision on your expression based upon the information that we ask for in this form and in accordance with the provisions of the Localism Act 2011.

We will acknowledge receipt, and within 30 days after the close of the expression of interest window, we will let you know the date by which you will receive a decision on your application.

Our decision will be to reject, to ask you to modify, or to accept your expression.

If we accept your expression of interest, then we will invite your organisation to compete in an open procurement exercise.

If you wish to complete a form then please refer to the Community Right to Challenge Statutory Guidance for further information.

The process

We recognise the valuable role that voluntary and community organisations have to play in the delivery of local services and are committed to working closely with you.

We will need to consider our statutory best value duty (Section 3 of the Local Government Act 1999) to 'make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness'.

This will mean looking at the effects on the service and other linked services across the county, not just the service and/or geographical area specified in the expression of interest.

We will let you know within 30 days after the close of the expression of interest window, the maximum period that we will take to let you know whether your expression of interest has been accepted or rejected and publish details of the service specification.

We may need to specify different periods for different cases due to the nature, scale and complexity of the service to which your expression of interest relates.

If the service is already contracted out, we will delay consideration of your expression of interest until we start to plan what will happen when the current contract ends.

If we accept your expression of interest, the procurement process will normally start no sooner than two months and no later than six months after acceptance.

In developing the procurement process we will need to consider the length of contract likely to give best value to the council.

In some service areas future requirements may be likely to change and it may be appropriate to award contracts for a relatively short time period, linked to the budget cycle, particularly during periods when our budget is under pressure.

Where procurement affects existing staff delivering the service, the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) may apply.

If we reject your expression of interest we will publish the reason for rejection.

Step 1

Step 1 - Completing an expression of interest form

Submitting an expression of interest is the first formal step in using the Right to Challenge.

Local authorities are able to designate certain times of year when expressions of interest can be submitted.

We have agreed that expressions of interest may be submitted from 24 June to 23 August 2013.

We will acknowledge receipt of the 'Expression of Interest' and will notify the applicant of the timescales within which it will make its decision by 23 September 2013.

The form requests all information that the statutory guidance states an EOI should include and also requests additional information that will help Brent Council assess if your EOI is sustainable.

Completed forms should be sent by post to:

Community Right to Challenge
Strategy, Partnerships and Improvement
4N Brent Civic Centre
Engineers Way
Wembley
HA9 0FJ

We will specify the maximum period that it will take to notify you of our decision on your expression of interest.

Different periods may be set for different cases depending on their complexity.

We will also notify you of this time period in writing within 30 days after the close of the expression of interest window.

Step 2

Step 2 - Expressions of interest either accepted or rejected by us

The expressions of interest will be considered by our strategic directors and/or cabinet members.

The decision will be one of the following three options:

1. Accept

The group who has submitted the expression of interest will have presented a strong case that they could provide the relevant service. The organisation will be informed when this will start on their acceptance notification.

The start date will take into consideration the type, size and complexity of the service and the need to ensure that organisations are given enough time to prepare for it.

The procurement process is open to any other potential provider, not just the organisation who submitted the expression of interest. This can include private sector organisations and council teams already delivering the service.

During the procurement process the Council will consider how organisations in the delivery of the service will promote or improve the economic, social or environmental well-being of Brent.

2. Accept with modifications

The Council can ask for an expression of interest to be modified where it would otherwise be rejected. The organisation must agree to the modification requested, if they do not agree then the expression of interest will be rejected.

If the expression of interest is rejected then service delivery may continue as before.

3. Reject

The government has set out a series of reasons why an expression of interest can be rejected which are as follows:

  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 the relevant authority considers to be inadequate or inaccurate.
  3. The relevant authority 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, made in writing, has been taken by the relevant authority to stop providing that service.
  5. The expression of interest relates to a relevant service a) provided in whole or part by, or on behalf of, the relevant authority to person who are also in receipt of a service provided or arranged by an NHS body which is integrated with the relevant service, an b) continued integration of such services is, in the opinion of the relevant authority, critical to the wellbeing of those persons.
  6. The relevant service is already the subject of a procurement exercise.
  7. The relevant authority and a third party have entered into negotiations for provision of the service, where negotiations are at least in part conducted in writing.
  8. The relevant authority has published its intention to consider the provision of the relevant service by a body that two or more specified employees of that authority propose to establish.
  9. The relevant authority considers that the expression of interest is frivolous or vexatious.
  10. The relevant authority 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 we decide to reject an expression of interest, we will publish the decision and the reasons for that decision.

We will notify the groups who have submitted an expression of interest of the decision and we will update the Expression of Interest Register to show the outcomes of the process.

Step 3

Step 3 - The procurement process

If we accept (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.

We will publish the exact timescale in our Expression of Interest Register 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.

The Social Enterprise Coalition offers a useful procurement and commissioning guide. Procurement processes can take some time to complete and potential providers will need the resources and financial flexibility to continue engaging throughout the process.

The Public Services (Social Value) Act requires us to consider best value (including social, economic and environmental) in our procurement processes.

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.

Please note that a 'procurement exercise starting' may include activities such as procurement planning and preparation, stakeholder engagement and soft market testing.

It is not the point at which we formally place a public advert for the tendering opportunity.

Important points to consider

We are committed to providing its services in the most efficient and effective way possible.

Before making a formal challenge under the Act, please make sure you consider and explore all of the existing opportunities to get involved, engage or influence the council. One way of getting started is by contacting your local Councillor.

The service you are interested in may already be commissioned in a formal contract. Whilst you can still challenge a service under contract, it is likely that the procurement exercise will only begin when current contract is due to expire. This is to ensure we achieve best value for money. 

If you decide to go ahead with making a challenge you must be confident that you can provide the service by the time the procurement exercise begins.

The procurement exercise is an open and competitive bid so we cannot guarantee you would win the procurement of the service.

We will notify you if your challenge has been accepted. The time period between the challenge being accepted and a procurement exercise will differ considerably depending on whether the service to which your challenge relates is currently provided in-house or commissioned:

  • Services provided in-house - A procurement exercise will be triggered for all interested parties, in line with our current contract procedure rules. The length of time between an EOI being accepted and a procurement exercise being accepted will vary from service to service, and we will specify and publish this length of time which is likely to be different for each potential contract.
  • Services commissioned and under contract - EOIs for contracted-out services will trigger a procurement exercise to be undertaken when it would have taken place in any event (prior to the end of the contract period).