Community Right to Challenge: Step 2 - Approaching the authority and acquiring service information

There are four very good reasons not to jump straight into an expression of interest (step 4) at this point:

1. You may end up wasting your time with an inappropriate Challenge. There are lots of reasons why an expression of interest can be rejected (see step 5) and some very simple enquiries to the authority may identify reasons why a Challenge for a particular service would be automatically unsuccessful.

2. You will need to get good quality information about any service you wish to challenge to run. You will need to find out as much as possible about how it is delivered at the moment, how it is organised geographically, what outcomes it achieves, what other organisations (if any) are involved in elements of delivery, and how much of the authority’s budget is currently spent on it.

To successfully challenge to deliver a service using the Right to Challenge you will need to be able to demonstrate how you can deliver a better service. You might feel that you can deliver a better quality service, a more responsive service, a more joined-up service, or even a cheaper service, but unless you know what the ‘baseline’ position is, you will struggle to demonstrate that this may be the case. An expression of interest which contains inadequate or inaccurate information can be rejected on these grounds alone.

3. You will need to identify whether TUPE – Transfer of Undertakings (Protection of Employment) – is likely to apply. TUPE is a highly complex area of regulations which mean that when a service is transferred from one organisation to another, employees’ jobs and conditions may need to transfer at the same time. If this is the case, then clearly your whole approach to a Right to Challenge will be different to your approach if it is not.

It is often not completely clear whether TUPE will definitely apply in any given situation as it depends on a number of factors which may be grey areas in your case, but the most important thing to note is that applying or not applying TUPE is not a decision which you can just make yourself.

Read our Guidance on TUPE for more information.

4. You may find that there is a better way to achieving your goals than by using the Community Right to Challenge. You might find that the authority is already reviewing how it delivers that service and is willing to talk to you about your ideas. Or they may already be planning to procure for the service and can give you some information about the planned procurement process. Or you may even get some information from the authority which means that your goals might change, and you might find a solution which is better for both parties.

If you are an employee of the local authority and thinking of using the Right to Challenge to ‘spin out’ a service, you are more likely to know the answer to this question!

Otherwise it can be tricky to know who to talk to in local authorities or other public bodies. You may need to be prepared to spend some time being signposted around and having lots of conversations before you finally get to talk to the right people. And you will probably do well to talk to a range of people anyway – elected councillors as well as officers, staff from the department in question, commissioners and procurement officers, junior staff and senior staff. All of these conversations, and no doubt some extensive research and report reading outside of these conversations, will help to build up the picture you need of how the service is currently organised and how well it is currently operating.

All of this information gathering needs good communication and negotiation skills. Remember that although you might be unhappy with the way a service is run at the moment, and although you might be issuing a challenge in due course, the authority is still a potential customer. Your actions now may strongly influence how people in the authority come to view your plans later. You are likely to need to be clear and persistent, but you are more likely to achieve your goals if you remain constructive and respectful.

You are likely to want to have wider conversations with potential partners or providers of advice and information. For most services it is likely to be helpful to talk to your local Council for Voluntary Service.

You may want to talk in particular to any service user groups that you can identify. The quality of engagement and consultation with user groups is often an important element of procurement decisions, and the level of your knowledge about the opinions and wishes of user groups may have a significant effect on the quality of any expression of interest you ultimately submit (see step 4, Set information included in any expression of interest, bullet point 4b).