Community right to challenge

The Community Right to Challenge allows Voluntary and Community Sector (VCS) groups, parish councils and 2 or more members of council staff to Express an Interest in running a council service. If the Expression of interest is accepted by Wiltshire council, a full scale procurement exercise is triggered which may or may not be won by the group expressing an interest.

It is particularly important to note that in any procurement exercise Wiltshire council has to act impartially and follow legal obligations such as those set out in Best Value regulations, the Equality Act and the Public Services (Social Value) Act.

If, as a parish council or other group, you have an idea about how a service could be better run or are interested in running a service, an informal discussion on the alternative approaches that are available to the Community Right to Challenge is recommended to ensure any idea you have is a success.

The Localism Act gained Royal Assent on 15 November 2011. One of the main provisions of the Act is to introduce new powers for local communities, including a "Community Right to Challenge".

The Community Right to Challenge gives community or voluntary sector groups, as well as parish councils and council employees, new powers to challenge and take over a local service. Under the new law, councils must respond to this challenge and consider the positive impact the proposal could have on the community. If the proposal is turned down the council must publish the reasons for this.

The provisions on the Community Right to Challenge came into force from 27 June 2012.

Any 'relevant body' may express an interest in running a local authority service under the right.

The Act lists the following as relevant bodies:

• a voluntary or community body
• a body of persons or a trust which is established for charitable purposes only
• a parish/town council
• two or more Wiltshire council employees
• any other person or body specified by the Secretary of State by regulations

These bodies can work in conjunction with a private sector organisation.

The basis of a challenge will be in the form of an expression of interest (EoI). An EoI must provide:

• details of the relevant service to which the EoI relates
• details of the outcomes to be achieved.
• the case for providing the relevant service including how the provision will promote or improve the social, economic or environmental well-being of the area.
• details of the financial standing and organisational capacity to participate in any subsequent procurement exercise

Parish councils and Voluntary or Community Sector Groups should first consider the use of the council's groundbreaking service delegation process. The Voluntary and Community Sector team can also discuss support that might be available.

If, having considered these other options, you would still like to submit an Expression of Interest under the Community Right to Challenge, please contact the Corporate Procurement Unit so we can discuss in more detail what you would like to achieve - email: procurementunit@wiltshire.gov.uk (opens new window). The Corporate Procurement Unit provides a standard Expression of Interest form for use by interested parties.

Staff groups should in the first instance have a discussion with their Corporate Director on developing any proposals for a staff mutual organisation.

If the Community Right to Challenge is used by staff, the council has to ensure that it is not treating any potential bidder any more favourably than another. As such, staff groups planning to use the Right are not allowed time within business hours to progress work on the development of a staff mutual. Staff groups are entitled to approach potential funders in the same way as any other group covered by the Community Right to Challenge. However, as there may be issues around access to commercially sensitive information, they must first declare an intention to approach a potential funder to the Corporate Leadership Team.  

Staff interested in using the Right should also contact the Corporate Procurement Unit for guidance and the Expression of Interest form.

Under legislation, Wiltshire Council can define windows during which it will accept Expressions of Interest (EoI) for relevant services. The window for receiving an Expression of Interest for running any of  Wiltshire Council's relevant services  has currently been set for 1 July - 31 August each year for all relevant services to align with the council's budget setting process.

The Act states that a relevant body may submit an expression of interest to a relevant authority at any time but that the local authority may specify periods during which expressions of interest, or expressions of interest in respect of a particular relevant service, may be submitted.

A decision on whether to accept, accept with modifications or reject the Expression of Interest will be made by Wiltshire council during September of that year.

If an Expression of Interest is accepted by Wiltshire council, then an indicative time between an Expression of Interest being accepted, and the procurement process starting will be up to:

• 1 month, for services with a value of less than £500
• 3 months, for services with a value between £500 and £100,000
• 6 months, for services with a value of more than £100,000 and less than the EU Threshold (currently £173,934)
• 12 months, for services with a value of more than the EU Threshold (currently £173,934)

Where an Expression of Interest is accepted, applicants will be provided with more precise timescales on when procurement will commence, based on the individual service requirements and the complexity of the service being considered.

In future, the council will be publishing windows in which Expressions of Interest can be submitted for individual services, which will be closely aligned with the council's future commissioning intentions and when current individual contracts come to an end. This will allow groups more time to prepare and submit expressions of interest without wasting effort on submitting expressions of interest where tendering is already underway or services are due to end. This page will be updated in due course to reflect this. In the meantime, the importance of a discussion with the Corporate Procurement Unit is emphasised, or you can check what procurement opportunities are already underway through the SouthWest Portal (opens new window) website.

The Social Investment Business, in partnership with Locality, will deliver a three-year support programme worth £11.5million to support the uptake of this right. These organisations can also offer advice if you are interested in taking on a service without using the Community Right to Challenge. WALC (opens new window) also provide capacity building advice to VCS groups and parish councils in Wiltshire respectively. Staff groups can contact the Mutuals Information Service (opens new window) for advice.

The Right applies to 'relevant services' - all services provided by the council in the exercise of its functions except those exempted under regulations. Under the current regulations, the following services are exempted from the Community Right to Challenge, either for a limited period or permanently:

• until 1 April 2014, a relevant service commissioned in conjunction with an NHS body under a partnership arrangement or by a relevant authority and an NHS body or a Strategic Health Authority acting jointly
• until 1 April 2014, a relevant service commissioned by an NHS body on behalf of a relevant authority
• relevant children's centre services that have been commissioned jointly by a local authority and an NHS body will be excluded from the right temporarily until April 2014
• a relevant service commissioned or provided by a relevant authority in respect of a named person with a complex individual health or social care needs will be permanently excluded
• services which are commissioned and managed by individuals or their representatives using direct payments do not fall into the scope of the community right to challenge

The right does not provide for delegation of the functions of a relevant authority. The responsibility for areas classed as 'functions' rather than services remain with the relevant authority. The services that relate to a function do however remain in the scope of the right. For example, The Crime and Disorder Act (1998) place a duty on local authorities to ensure there is appropriate provision of youth justice services. Whilst consultation with interested parties as part of the commissioning cycle can be undertaken, decisions on what services are provided and the location of such services remains a function of the authority. The community right to challenge does not apply here.

Individual parts of services with young people to prevent further offending may be provided by the local authority, or by a third party on behalf of the authority. The community right to challenge will apply here.

Only parish councils, Local council staff and voluntary and community organisations can submit an Expression of Interest. Does this mean that only those types of organisation can bid for the service if the Expression of Interest is accepted?

No. If the service goes to procurement then it is fully competitive and anyone can bid including the private sector, in accordance with the local authority's normal procurement rules.

If you are a group of two or more local authority staff looking to take on a service you are already involved in delivering, then you don't need to have a registered organisation at the point of submitting an expression of interest. However you would need to show in the expression of interest that by the time of the procurement exercise you would establish such an organisation to be able to run the service. The Mutuals Information Service (opens new window) can offer advice here. Human Resources can also offer advice on the implications of TUPE (Transfer of Undertakings Protection of Employment) regulations being applied.

If you are a voluntary or community organisation then any legal structure which can be shown to be "not for profit", or that your activities are primarily for community benefit, will be eligible. A legal structure which has limited liability status is likely to be essential to deliver public services, but is not necessary at the point of Challenge.

By completing the Expression of Interest form available by emailing procurementunit@wiltshire.gov.uk (opens new window). It is important to consider whether using the Community Right to Challenge is the best way forward and to this end applicants are strongly recommended to have a discussion with the Corporate Procurement Unit on the other options available before submitting an Expression of Interest.

You will be contacted within 30 days of the window for receipt of Expressions of Interest closing.

A challenge can be rejected as long as the reasoning falls into one or more of the criteria set out in legislation. The relevant body provides information in the EOI which is deemed to be inadequate or inaccurate.

• the relevant authority considers, based on the information in the EOI that the relevant body is not suitable to provide or assist in providing the relevant service
• 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
• the EOI relates to a relevant service where a decision, evidenced in writing, has been taken by the relevant authority to stop providing that service
• the EOI relates to a relevant service that is in whole or in part already commissioned in conjunction with an NHS body
• the relevant service is already the subject of a procurement exercise
• the relevant authority has already published its intention to consider the provision of the relevant service following an EOI that was submitted at an earlier date
• the relevant service considers that the EOI is frivolous or vexatious
• 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

Relevant statutory duties include the duty to secure Best Value in the provision of a service.

Once a challenge has been accepted the council's normal procurement rules will apply.

Applicants will need to bid in competition with other interested relevant bodies and commercial organisations. Successful applicants will be informed of when the procurement process will begin.

The full statutory guidance (opens new window) on the Community Right to Challenge is available online, along with the right to challenge (opens new window) regulations and the provisions of the Localism Act (opens new window) itself.