Community Right to Challenge: Step 5
The relevant authority’s decision
The relevant authority will now have to consider your expression of interest and inform you of their decision in writing. The length of time this decision will take will depend on whether the authority has set periods for expressions of interest to be submitted. They must notify the body within 30 days of either receiving the expression of interest or, where they have set such periods, the end of the period.
If the authority advises you that it has accepted your expression of interest, then it will trigger a procurement exercise, and you have the chance to bid to deliver the service in competition with any other organisation (including the private sector, and other bodies who are not eligible to issue a Community Right to Challenge itself). This process is outlined in step 6. The authority must also publish on its website the minimum and maximum period between it accepting the expression of interest and starting a procurement exercise. It is expected that in making a decision about the timing of the procurement process the authority should take into account the time you may need to develop your capabilities or plans further in order to compete effectively.
The authority may on the other hand advise you that it is rejecting your expression of interest, but if they do so, it can only be for one of the following reasons, and they should inform you which reason(s) have resulted in the rejection.
The reasons for rejection are listed here in three broad categories:
Reasons to do with your organisation
- The expression of interest does not comply with the regulations: For example if you cannot demonstrate that you are a ‘relevant body’, your expression of interest is not really in relation to a relevant service, or it is submitted outside of a period for submitting expressions of interest.
- The authority considers that you have supplied inadequate or inaccurate information: This could be for a host of reasons. The authority might for example consider that:
– You have not given precise information about the service you want to take on
– You have not shown how you would meet the service needs and deliver things in an improved way
– You have not given enough information about your organisation and its skills
– You have not given enough information about how you would finance your service delivery
– You have given information which the authority knows is inaccurate. This is not an exhaustive list.This basically means that you haven’t given the relevant authority the information it would need to accept your expression of interest. So if this is the only reason why an authority is rejecting your expression of interest, the regulations state that the authority should consider whether it would be more appropriate to go back to ask you for more information rather than reject it outright.
- The authority doesn’t think you are a suitable body to deliver the service: Even if the information you have submitted is adequate, the authority could still determine that you do not have the organisational capability (see step 1) to deliver the service. This might be for a number of reasons, including financial resources, staff skills, or the standing required to successfully come through a procurement exercise. It is important to note that if your expression of interest involves more than one organisation in the proposed delivery (in a consortium, or through the use of sub-contracts) then the whole expression of interest could be rejected in relation to concerns about ANY of the organisations involved. This ground also applies the judgement of suitability against the proposals in the expression of interest, including the proposed outcomes to be delivered.
- The authority considers that the expression of interest is frivolous or vexatious: If the authority believes that you are not really serious about delivering the service, it can reject the expression of interest for this reason alone. The authority would need to have cause to believe that you were wasting time or trying to cause trouble. If an organisation is unhappy with a service and wants to complain about it or see it improved, it should not use the Community Right to Challenge to do this, unless it is genuine about delivering the service itself.
Reasons to do with the Service
- The authority has already decided to stop providing the service: If the decision has already been made to stop providing a service, perhaps because of budget cuts, then your expression of interest can be automatically rejected. If however the authority is considering such a possibility but hasn’t formally decided to stop the service yet, then your expression of interest cannot be rejected on these grounds – indeed it will actually need to be strongly taken into account as part of that decision-making process.
- The authority is already in the process of commissioning the service in a different way: If the authority is already in the process of commissioning the service in a different way then your expression of interest can be rejected. It could be that a procurement process is already underway, or that the authority is already in formal negotiations with another organisation to deliver the service, or that plans are already underway for a group of employees to “spin-out” under the Government’s ‘Public Service Mutuals’ policy. In any such case, the decision to provide the service in this different way must have been formally documented – if it is just the case that the authority is thinking about going down this road then your expression of interest cannot be rejected on these grounds.
- The service is integrated with other services arranged through the NHS and needs to remain so: If the service is already linked to other services provided by the NHS or commissioned by the NHS, then this could be grounds for rejection. However, for this to be the case the authority would need to be sure that the continued integration of these services was essential in order to protect the well-being of the particular users involved. This reason for rejection is about protecting the quality of care specifically of vulnerable people and those with complex needs.
- Anything else which would mean that accepting your expression of interest would be likely to lead to a breach of the authority’s statutory duties, or break the law. If anything in your expression of interest would lead the authority to be in breach of the law or a statutory duty should it accept your expression of interest then it may be rejected.
Smaller service example – running the local outdoor market
For the group which challenged the council over the running of their local weekly market, the council respond two weeks later saying that they will make a decision within another three weeks time. After this short wait the group are delighted to hear that the council have accepted their challenge. In fact the council say that they found the submission compelling. The council inform the group that it will be putting the running of the market out to tender in a month’s time.
The group realise that it will need to be ready with its plans, so it carries on developing its business plan and meeting with local stall holders in the meantime. Although the council now seems to be quite supportive, they inform the group that they cannot have any further conversations about the proposals as there will shortly be a competitive process announced. But the group feel that they got all the information they needed at step 2 of the process, so this doesn’t cause them a problem. They now wait for the procurement exercise in step 6.