Community right to challenge

The Community Right to Challenge arises out of the Localism Act 2011. The Government's intention in introducing the 'Right to Challenge' is to pave the way for more communities to help shape and run local services.

This might include making services more responsive to local needs, offering additional social value outcomes or delivering better value for money.

The scheme requires the Council to consider expressions of interest from relevant bodies to provide local services, and, if the Council accepts the expression of interest, carry out a procurement exercise for the relevant services.

What are relevant bodies?

Only a relevant body can submit an expression of interest. The Localism Act lists relevant bodies as:

a voluntary or community body. These may encompass a wide variety of civil society organisations but must demonstrate a community benefit.
charitable bodies
a parish council
two or more employees of the Council

Whilst only a relevant body may submit an expression of interest, they may do so in conjunction with other relevant bodies and non-relevant bodies.

What are relevant services?

The Community right to Challenge applies to all relevant services. A relevant service is a service provided by or on behalf of the Council in the exercise of its functions.

The right only applies to the provision of services and not to the delegation of functions. The responsibility for the discharge of functions remains with the Council. For example the Council has legal powers to grant or refuse planning permission and this function cannot be delegated under the scheme.

If any relevant services are shared, jointly commissioned or jointly provided by two or more relevant authorities, those authorities will have to agree the relevant timetables and arrangements for considering and responding to expressions of interest, and, where necessary, carrying out a procurement exercise for services.

Submitting expressions of interest

The Council may choose to specify periods during which expressions of interest can be submitted by a relevant body in relation to a particular relevant service.

The Council has decided that expressions of interest must be made during a period of three months from 1 September each year.

Requirements of an expression of interest

There are a number of requirements for an expression of interest, which must be in writing. These include:

The financial resources of the relevant body submitting the expression of interest
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. 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 requested in paragraphs one and two above must be given in respect of each member of the consortium and each sub-contractor as appropriate.
Information about the relevant service sufficient to identify it and the geographical area to which the expression of interest relates
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 how the provision will promote or improve the economic or environmental well being of the Council's area and how it will meet the needs of the users of the service
Where the relevant body consists of employees of the Council, details of how the relevant body proposes to engage other employees of the Council who are affected by the expression of interest.

Expressions of interest should demonstrate how the proposal might offer social, economic or environmental benefits to the community and take into account social considerations over and above the provision of the service. This might include creating local jobs, improving local skills, increasing local volunteering opportunities or improving environmental conditions.

Expressions of interest should demonstrate how they intend to meet the needs of service users. When assessing this criteria, the Council may take into account needs assessments and user surveys.

Employee engagement could take the form of meetings, intranet updates and staff clinics. The level of engagement should be appropriate and proportionate to the size and nature of the service and the number of affected employees.

A link to the Council's application form for the community right to challenge can be found at the end of this summary.

Notifying decisions on expressions of interest

The Council must specify the maximum period it will take to notify the relevant body of its decision on expressions of interest.

Under normal circumstances the maximum period the Council will take to notify the relevant body of its decision on an expression of interest is three months from the date of receipt of the Expression of Interest by the Council.

This notification in respect of the time frame for decisions must be made in writing to the relevant body submitting an expression of interest within 30 days of the close of the period specified by the Council for submitting expressions of interest.

The Council must also specify a minimum period that will elapse between the date to accept an expression of interest and the date any procurement exercise will commence and the maximum periods that will elapse between these two dates.

Grounds for rejection of an expression of interest

There are a number of grounds the Council may apply to reject an expression of interest. These include:

inadequate and inaccurate information provided by the relevant body.
suitability of the relevant body, in particular insufficient financial resources, inability to participate in a procurement exercise, doesn't have suitable staff.
the council has stopped/decided to stop providing the service. This ground does not allow an expression of interest to be rejected before the decision is made to stop the service.
the council has entered negotiations with a third party.
the council published its intention to consider mutualising the service.
the council believes the request to be frivolous or vexatious.
the provision of the service by the relevant body is likely to lead to a to contravention of law or statutory duty.

Period between an expression of interest being accepted and a procurement exercise starting

The council must specify periods between an expression of interest being accepted and a procurement exercise starting. This aims to allow relevant bodies time to prepare to compete in the procurement exercise.

These periods can vary but under normal circumstances, where the expression of interest is in respect of in house services, the minimum period that will elapse between the date to accept an expression of interest and the date any procurement exercise will begin is six months and the maximum period that will elapse between those two dates is one year. Where the service has been commissioned from contractors the minimum period that will elapse between the date to accept an expression of interest and the date any procurement exercise will begin is one year before the expiry of the contract and the maximum period that will elapse between those two dates is three months before the expiry of a contract.

In specifying these periods, the council should have regard to:

the need to provide employees of the council and other relevant bodies with a fair, reasonable and realistic opportunity to bid in the procurement exercise for the service;
the nature, scale and complexity of the service being procured;
the timescales for any existing commissioning cycle relevant to the service being procured, or any other relevant council processes. These may include cabinet decision making or budget setting processes.

It is for the council to set the period between accepting an expression of interest and starting a procurement exercise and may take into account its contractual obligations and the commissioning cycle. For example, the Council may well already have a contract in place for the provision of the service.

The procurement exercise

Where the council accepts one or more expressions of interest, it must carry out a procurement exercise for the service. The procurement exercise must be appropriate having regard to the value and nature of the contract being awarded.

The council will have to comply with procurement law and its own procurement procedures.

The council must consider how both expressions of interest and procurement exercises would promote or improve the economic, social or environmental well-being of the council's area.

Summary of timescales

Expressions of interest must be made during a period of three months from 1 September each year.

Under normal circumstances the maximum period the council will take to notify the relevant body of its decision on an expression of interest is three months from the date of receipt of the expression of interest.

The Council must specify periods between an expression of interest being accepted and a procurement exercise starting These periods can vary but under normal circumstances, where the expression of interest is in respect of in house services, the minimum period that will elapse between the date to accept an expression of interest and the date any procurement exercise will begin is 6 months and the maximum period that will elapse between those two dates is one year. Where the service has been commissioned from contractors the minimum period that will elapse between the date to accept an expression of interest and the date any procurement exercise will begin is one year before the expiry of the contract and the maximum period that will elapse between those two dates is three months before the expiry of a contract.

Useful links

Government statutory guidance about the community right to challenge

Community right to challenge - Expression of interest (Word doc, 103 KB)