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Legal Principles

  1. The Right to Challenge applies to Council services and facilities but not Council functions
  2. A service that is delivered by a third party or that is already the subject of a procurement exercise is not subject to the Community Right to Challenge.
  3. An Expression of Interest can be submitted by a relevant body, which is defined as
    1. A parish or town council, (but not limited to services or facilities within its area);
    2. A voluntary body - a body, other than a local authority, the activities of which are carried out on a not for a profit basis;
    3. A community body - a body, other than a local authority, which carries on activities primarily for the benefit of the community;
    4. A body or trust established for charitable purposes;
    5. Two or more employees of the local authority, whether or not they have formed themselves into a body for this purpose, or
    6. Such other persons or bodies as may be specified by the Secretary of State by regulations
  4. Expressions of Interest must be accompanied, in writing, by the following information
    1. Information about the financial resources of the relevant body which is submitting the expression of interest;
    2. Evidence demonstrating that by the time of any procurement exercise, the relevant body will be capable of providing or assisting in providing the relevant service;
    3. Information about the relevant service sufficient to identify it and the geographical area to which the expression of interest relates;
    4. 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 authority's area; and how it will meet the needs of the users of the relevant service; and
    5. Where the relevant body consists of employees as described in the Act, details of how that relevant body proposes to engage other employees of the authority who are affected by the expression of interest
  5. When an Expression of Interest is received the Council has to decide whether to accept it, accept it with modifications or reject it.  The possible reasons for rejection are:
    1. That the expression of interest does not meet the statutory requirements, because it is not from a relevant body or is not for a relevant service
    2. That the supporting information is inadequate or incorrect
    3. That any member of the body making the bid, or of their consortium, is not suitable to provide the service.  This would cover absence of a necessary qualification, or past conduct
    4. That the Council has already taken a formal decision to cease to provide the service.  So an expression of interest cannot be used as a means to challenge an authority's decision to close a facility or cease a service
    5. That taking this service in isolation would result in a loss of integration with NHS services to the detriment of users of the integrated service
    6. That the service is already the subject of a procurement exercise
    7. That the Council is already in negotiations in writing with a third party for the provision of the service
    8. That the Council has already published its intention to consider the provision of the service by a body to be set up by two or more employees
    9. That the expression of interest is vexatious or trivial
    10. That the acceptance of the expression of interest is likely to lead to a breach of law or statutory duty.