Community Right to Challenge

Overview

The Community Right to Challenge is a provision introduced in the Localism Act 2012. It allows local community organisations to submit an Expression of Interest (EOI) to run a local authority's services.  

This means that if a community group, such as a charity or an NGO, believes it can deliver a council service better than the current one, it can submit an EOI to the local authority. If the authority accepts the Expression of Interest, it must conduct a procurement exercise for the service, during which the interested group will compete with other prospective suppliers who may wish to run the service. 

Who can invoke the right to challenge

The list includes: 

• voluntary and community bodies 
• charities 
• two or more employees of the relevant authority 

Relevant bodies may submit an Expression of Interest in partnership with other relevant and/or non-relevant bodies. For example, a local community group could submit a joint expression of interest with a parish council (other relevant body) or with a commercial business (non-relevant body) 

A Voluntary body is a body that is not a public or local authority and does not carry out its activities for profit. It can generate a surplus, provided it is used for its purposes or invested in the community. 

A community body is a body that is not a public or local authority and whose activities are primarily for the benefit of the local community. 

Challenging Statutory Services

If a service is regarded as a statutory duty, the local authority retains ownership and responsibility for delivering it, even if it does so through external commissioning. For example, while statutory homelessness services can be contracted to be delivered by a third-party supplier, the local authority retains the legal duty to provide care and support for homeless people.  

What services can you challenge?

The Community Right to Challenge applies to all 'relevant services'. A relevant service is provided by or on behalf of a relevant authority in exercising its functions in relation to England, except for services excluded from the right in secondary legislation. 

The default position is that unless expressly excluded, all services provided by, or on behalf of, the local authority are defined as 'relevant services' and can be open to challenge. 

However, legislation permanently excludes individual packages of services for continuing health and social care for named individuals with complex needs provided/commissioned by a local authority or NHS body.  

It is also important to note that the Act clearly distinguishes between a 'Service' and a 'Function' of local government and that this Right covers only services.   

Read more about the Community Right to Challenge here.  

What is an Expression of Interest (EOI)?

An Expression of Interest is how community groups participate in the Community Right to Challenge. A local authority must consider an Expression of Interest submitted by an eligible organisation regarding an eligible service. The legislation provides sufficient flexibility regarding what can be included in their Expression of Interest as long as it includes:

• information about 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
• information about the relevant service is 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 or assistance will promote or improve the social, economic or environmental well-being of the relevant authority's area:
  • how it will meet the needs of the users of the relevant service
  • where the relevant body submitting the Expression of Interest consists of employees of the relevant authority delivering the service, please detail how engagement will be carried out to the fellow employees who will be affected

How to challenge?

If you wish to submit an EOI, please fill in the submission form and submit it with any supplementary documents to procurement@westminster.gov.uk  

What should be included?

If the proposal is to deliver the relevant service as part of a consortium to use a sub-contractor, the following information must be given in respect of each member of the consortium and each sub-contractor as appropriate:  

• who has expressed the interest and who is proposing to deliver the service 
• information about the financial resources of the organisation submitting the Expression of Interest 
• evidence to demonstrate that, by the time of any procurement exercise, the organisation submitting the Expression of Interest will be capable of providing, or assisting in providing, the relevant service 
• sufficient identification of the service to be considered and the geographical area that the service affects
• the outcomes that are to be achieved and, in particular: 
  • how the service will improve the well-being and meet the needs of service users 
  • how the service will promote the social, economic or environmental well-being of the borough 
• where the relevant body consists of employees of the relevant authority, details of how that relevant body proposed to engage other employees of the appropriate authority who are affected by the Expression of Interest 

Acceptance and rejection of an Expression of Interest

We may accept an Expression of Interest, accept it with modifications, or reject it.    

Potential reasons for rejection may include:

• the Expression of Interest does not comply with any of the requirements specified in the Act or regulations
• the relevant body provides information in the Expression of Interest which, in the opinion of the relevant authority, is in a material particular inadequate or inaccurate
• the relevant authority considers, based on the information in the Expression of Interest, that the relevant body or, where applicable
  • Any member of the consortium of which it is a part
  • Any sub-contractor referred to in the expression of interest is not suitable to provide or assist in providing the relevant service
• the Expression of Interest relates to a relevant service where a decision, evidenced in writing, has been taken by the relevant authority to stop providing that service
• the Expression of Interest relates to a relevant service  
  • provided, in whole or in part, by or on behalf of the relevant authority to persons who are also in receipt of a service provided or arranged by an NHS body integrated with the relevant service
  • the relevant authority believes that the continued integration of such services is critical to the well-being of those persons

• the relevant service is already the subject of a procurement exercise

• the relevant authority and a third party have entered into negotiations for the provision of the service, which negotiations are at least in part conducted in writing

• 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.  
• The relevant authority considers the Expression of Interest frivolous or vexatious
• the relevant authority considers that accepting the Expression of Interest will likely contravene an enactment or other rule of law or breach a statutory duty

Timeframe

Expressions of Interest may be submitted throughout the year.  

We will provide a receipt to acknowledge the Expression of Interest and notify the applicant of the decision within 30 days of receipt.   

If you have any queries regarding the Community Right to Challenge, please email us at procurement@westminster.gov.uk