England’s Community Right to Challenge

The initiative

The Community Right to Challenge, which was enshrined in law by the Localism Act 2011, was designed to “give communities the right to challenge to run local services where they believe they could provide them differently and better”.[1] This was a legally enforceable right for community bodies to question the way services were delivered and to submit an expression of interest (EOI) in running a local service. After being reviewed by the local council, these EOIs could then lead to a procurement exercise for that service.

The Community Right to Challenge was part of the Conservative-Liberal Democrat coalition government's pledge in 2010 to create the “Big Society” - “a society where people and not the State make more decisions about issues affecting peoples' everyday lives and those of their communities”.[1] The Right to Challenge was one of a number of rights given to communities in the 2011 Act, which aimed to create the conditions for communities to play a bigger part in shaping the world around them. The Act was passed into law on 15 November 2011 and came into force on 27 June 2012. The Right applied to all county, district, unitary, metropolitan and London borough councils and fire authorities in England.

The Community Right to Challenge was designed to achieve three outcomes, all of which were manifestations of the government's Big Society vision:

• Reform public services by increasing the diversity of local service providers, and improving innovation and responsiveness to local community need
• Reduce the cost of service provision by giving the community the right to challenge the council to deliver a better value service
• Empower communities and citizens by giving them the statutory right to challenge local authorities and have their EOIs considered. This liberation of local imagination was intended to revitalise local services to better meet the needs of local communities.[1]

In practice, the Community Right to Challenge could only be enforced by two types of organisation:

• “Relevant authorities - The Act lists the following as relevant authorities: a) A county council; b) A district council; c) A London borough council; or d) Any other person or body carrying out a function of a public nature specified by the Secretary of State in regulations. (Certain fire and rescue authorities are added as relevant authorities in the Regulations)...
• “Relevant bodies - The Act lists the following as relevant bodies: a) A voluntary or community body; b) A body of persons or a trust which is established for charitable purposes only; c) A parish council; d) Two or more employees of the relevant authority; or e) Any other person or body specified by the Secretary of State by regulations.”[3]

These organisations could only challenge the provision of services, not functions that the local authority carried out. For example, a community body could make a challenge to run a service that helped young offenders to reform, but not to challenge local authorities' decisions about which services are provided, where they are located, how they are funded, etc. Those decisions are a function of the local authority.[3]

Some services were excluded from the Community Right to Challenge in the legislation. These included Sure Start Children's Centres, those run in conjunction with an NHS trust or foundation, and others that were deemed inappropriate to be run by actors other than local authorities.[3]

The challenge

In the early 2010s, public services in the UK were not meeting local needs, and communities were not empowered to make them more effective. It was felt very strongly within government and by UK citizens that local services were not being delivered as efficiently or effectively as they should be. Only 44 percent of people felt that local public services acted on the concerns of local residents, 45 percent said that - taking everything into account - they were satisfied with their local council, and 33 per cent felt that their council provided value for money in the provision of services.[1] Only 29 percent said they felt they could influence decisions in their local area.[2]

In addition, voluntary and community sector bodies were not empowered in their communities to influence and shape local services to community needs. These bodies frequently reported to the government that they faced significant challenges in bidding for public sector contracts. In 2011, it was reported that only 2 percent of the spend on public services went to voluntary or community sector bodies.[1]

The public impact

Awareness of the Right has been reasonably good. “According to a survey conducted by the community organisation network, Locality, a not-for-profit which provides support to community groups, awareness of the Right to Challenge ‘appears to be high amongst relevant bodies… The vast majority felt they either knew fully (42 percent) or mostly (38 percent) how the legislation works.'"[4] Most council websites outline the Right to Challenge in some form and explain how local bodies can enact it.

However, the use of the Right has been very low, severely limiting its impact. The impact assessment of the Community Right to Challenge Bill, which was conducted by the Department for Communities and Local Government (DCLG) in January 2011, had predicted around 500 EOIs annually, of which 60 percent (i.e. 300) would lead to a procurement exercise.[1] While the DCLG does not formally monitor uptake of the Community Right to Challenge or require local authorities to report the number of challenges, there have only been on record 216 groups who have received financial assistance to develop their capacity to bid. Only 50 EOIs had been submitted as of December 2014, with only seven being accepted and three contracts awarded.[5] No further EOIs could be found, and of the eight councils that were contacted as part of the research behind this case study, none had received any EOIs.

Despite the lack of official uptake, there is some evidence that groups have used the Right more as a negotiating tactic, in preference to submitting an official EOI. Tony Armstrong, from Locality, said the Right "has either deliberately led to a conversation or the local authority's behaviour has changed as a result, which is a very positive move".[6] However, the lack of use of the Right does significantly undermine the ability of the policy to meet its intended outcomes - to increase the diversity of local service providers, reduce the cost of service provision, and empower communities and citizens.

Written by Katie Rose

Stakeholder engagement

The DCLG conducted public consultations on the Localism Bill. There were 55 responses, the majority being from local authorities (33), while local government representative bodies (7), town or parish councils (5), local waste authorities (3), and local fire authorities (2) were the only other categories providing more than one response. From these, the DCLG concluded that “the proposed policy statement was positively received with the majority of respondents welcoming the clarity and fairness”.[8]

Whilst many local authorities did seem to support giving communities the right to challenge, others raised concerns about the implications of transferring responsibility from a local authority to a parish council, town council, or voluntary organisation.[8] For instance, 26 responses raised the implications for subcontracted services, including the difficulties involved in ensuring that contracts obliged contractors to adhere to the law and the potential for increased procurement costs.

There was no explicit support from public bodies for this right to challenge, and only one replied to the DCLG's consultation effort.[8] There is no record of government engagement with local bodies before the Act was implemented.

Political commitment

There was significant political support for the Community Right to Challenge from the prime minister, David Cameron, the deputy prime minister, Nick Clegg, and the coalition government as a whole.

The Right was a key component of the government's pledge to create a Big Society, spearheaded by the prime minister. Creating such a society was deemed to be the second biggest political priority for him and the coalition government, the first being to reduce the budget deficit.[9] “Our Conservative-Liberal Democrat Government has come together with a driving ambition: to put more power and opportunity into people's hands. We want to give citizens, communities and local government the power and information they need to come together, solve the problems they face and build the Britain they want.”[8]

Creating this Big Society was “the responsibility of every department of government, and the responsibility of every citizen”, indicating that it was a cross-government priority, too.[10] Mr Cameron illustrated his personal support of the Community Right to Challenge in many speeches, and unveiled the legislation of the Localism Act himself.[11] Nick Clegg also frequently pledged his support: “We need to take control away from central government, where bureaucrats and ministers are in charge, and give it to local government, people and communities”.[12]

There was some criticism of the Localism Act by the opposition Labour Party, however. Clive Betts, Labour MP for Sheffield South East and committee chair, criticised the bill for leaving an accountability gap where no elected official would be responsible for some of the local services. “It was self-evident that sometimes it appears that local government is being bypassed by the process."[10][13] However, the Labour Party tended to support legislation that handed more power to the community. After being elected as party leader, Ed Miliband was reported as saying that “we need more decisions to be made locally, with local democracy free of the constraints we have placed on it in the past”.[14] John Healey, Labour MP and shadow secretary of state for health, said: “I don't think we should completely reject the concept of Big Society. At its best, it stands for everything that Labour is about.”[15]

Public confidence

Whilst no specific evidence could be found about citizens' confidence in the Right to Challenge, there is evidence to indicate public support for the policy's objective to improve the efficiency and effectiveness of local services, and make them more responsive to local needs. In 2008, only 44 percent of people felt that local public services were responsive to the concerns of local residents, and only 33 percent felt that their council provided value for money in the provision of services.[1] Only 29 percent said they felt they could influence decisions in their local area.[2]

However, there also seemed to be a lack of citizen involvement in these community bodies. In 2008, survey results indicated that over the previous 12 months, only 14 percent had been involved in local decision-making (for example, being a member of a committee or groups relating to local services).[2] It is hard to interpret these results as systemic, but this could indicate that the public was disengaged from local bodies and doubted their capacity to drive positive change.

Clarity of objectives

The objective of the policy was clearly laid out in the Localism Bill: “to give communities the right to challenge to run local services where they believe they could do this differently and better”.[1] The three main desired outcomes were to reform public services by increasing the diversity of local service providers, to reduce the cost of service provision, and empower communities and citizens by giving them the statutory right to challenge local authorities (see The Initiative above). Local authorities and community organisations had to follow the correct process in providing and abiding by this Right in considering an EOI, as set out in s83(8) of the 2011 Act: “A relevant authority must, in considering an expression of interest, consider whether acceptance of the expression of interest would promote or improve the social, economic or environmental wellbeing of the authority's area”.[5]

Local authorities were legally required to respond to an EOI within 30 days. In their decision on whether to accept or reject an EOI, local authorities were told they should consider specific issues such as social value, value for money, service user needs, and how employee engagement would work when determining whether the contract should be awarded. Valid grounds for rejection were also laid out, and these included inadequate information and the unsuitability of the relevant body.[3]

Strength of evidence

The Right to Challenge was the first of its kind, and thus there were no readily accessible case studies to draw on. Despite the extensive feasibility assessment carried out by the coalition government (see Feasibility below), no pilots were rolled out to test whether this right would empower communities to drive change in their local area. However, evidence was collected throughout the first year of the policy’s implementation, which was then used to adapt the processes local communities had to go through to enact the Right. There were several obstacles to the EOI submission process for local community bodies, who struggled to submit all the relevant information required, according to Locality.[6]

Feasibility

An impact assessment was conducted by the DCLG in January 2011 before the Localism Act was passed into law. This considered the financial feasibility of the right to challenge, estimating the total cost of the right as GBP28.6 million. This included the cost to local authorities of assessing EOIs and running procurement exercises when accepted, and costs to central government in supporting community groups in terms of capital and resource expenditure.[1] The Right was also backed by the largest social investor in the UK, the Social Investment Business, which administered a GBP10m fund offering pre-feasibility grants between GBP5,000-GBP10,000 and feasibility grants up to GBP100,000.[16] There were no legal barriers to the enactment of the Right, and compliance with EU procurement requirements was considered in the policy design.[1]

Despite this comprehensive financial and legal feasibility assessment at a national level, research by the Local Government Information Unit (LGiU) - the largest independent local authority membership organisation in the country - showed that fewer than one in ten councils had conducted assessments of the risks and opportunities presented by the Right to Challenge.[17] This indicates that whilst the government had conducted feasibility assessments, financial constraints and human resource constraints were not evaluated exhaustively at a local level, which is where the policy was actually to be carried out.

It was also found that there were feasibility challenges for the local bodies themselves, given the difficulty of conducting a proper EOI process, and many of the bids might have “fallen at the first hurdle”.[16] The grounds for refusal by the local authority were criticised as being too wide. For example, an EOI can be rejected because of the “unsuitability” of the challenger or if the challenge is deemed frivolous or vexatious.[16] There were partial efforts to reduce the complexity and difficulty of the procurement process, but those exercising the Right had to surmount a number of significant barriers.

Management

The coalition government tried to put mechanisms in place to assist local authorities and community bodies in their use of the Right to Challenge. For instance, it launched My Community Rights, an advice and support service for people interested in using the Right, and the government also made grants available for EOIs. Guidance was also given to local authorities to help them in assessing EOIs.[18]

However, there seemed to be a dearth of mechanisms at the local level to ensure that community organisations were aware of the Right, and were then able to exercise it. There were no requirements put in place for local authorities to advertise it publicly, and thus uptake varied according to the relevant local authority.[19] The limited uptake of the Right can also partially be explained by the complex process for submitting an EOI. For instance, Cornish community organisations who used the Right found it to be an "overly bureaucratic process". They had to commit "substantial resources" to the EOIs and procurement stages. Other local bodies expressed similar concerns, due to the amount of information the council asked to be included in the EOI.[6] There seem to be no specific mechanisms implemented to appeal against decisions on EOIs or any mechanisms to allow local authorities to share lessons on how to empower community bodies to use the Right.

In the statutory guidance, there was no clear management role for the DCLG. This meant that the respective roles of the local authorities and the DCLG, as well as accountability for making bodies aware of the Right and helping them to exercise it, were not clearly defined or communicated.

Measurement

Although the legislation and statutory guidance set clear objectives for the Community Right to Challenge, no indicators of success were identified at the outset or tracked over time to ensure that public impact could be measured. There is no formal requirement for councils to record the number of EOIs that are submitted to them, and no success indicators were identified against the Right’s intended outcomes. From our research, there has been no assessment of the Right to Challenge’s impact after 2014, despite its still being available.

Alignment

The DCLG, which was supposed to spearhead the implementation of the 2011 Act, was fully engaged and supportive of the Community Right to Challenge. Greg Clark, the minister of state at the DCLG, said of the Right that it “paves the way for communities to play a bigger part in shaping excellent local services around their needs”.[20] Despite this alignment around the use of the Right at a national level, the required alignment of interests of local actors to promote and use the Right was lacking. Local authorities were not incentivised to promote the Right, because there were potential capacity issues if a substantial number of EOIs were submitted. Concerns were raised in the DCLG's public consultations on these issues (see Stakeholder Engagement above).[8]

Alignment with community groups is also hard to determine. Whilst there was support of community empowerment from local bodies, there is also evidence that some community groups viewed the Right as detrimental to their relationship with the local council - potentially contributing to the lack of uptake. The National Association for Voluntary and Community Action called the Right the "nuclear option": once used, the group that mounted the challenge could not go back, as relations with the local authority were likely to be "severely damaged".[6]

This concern led to Locality advising that the Community Right to Challenge be replaced with a “services partnership power”. They warned that “the ambition behind the Localism Act is in danger of waning, and the fundamental shift in power from Westminster to communities has not yet been achieved”,[19] and a more collaborative approach was needed, specifically in the case of the Right. The complex and bureaucratic process of actually submitting an EOI also acted as a disincentive for local bodies to enact the Right.

Bibliography

[1] Localism Bill: community right to challenge Impact assessment, January 2011, Department for Communities and Local Government

[2] Place Survey: England - Headline Results 2008 (Revised), 23 June 2009, The National Archives

[3] Community Right to Challenge: Statutory Guidance, June 2012, Department for Communities and Local Government

[4] Community Rights: Sixth Report of Session 2014-15, 20 January 2015, House of Commons Communities and Local

[5] Community Right to Challenge: Briefing Paper Number 06365, Mark Sandford, 21 March 2015, House of Commons Library

[6] The Community Right to Challenge n103, 2015, Communities and Local Government Committee, www.parliament.gov.uk

[7] Report for Decision: Errant Councillors and the New Standards Regime, Clive Sheldon QC, 4 February 2014, Bury Council

[8] Consultation on the proposed policy statement for Part 2 of the Localism Act 2011, July 2012, Department for Communities and Local Government

[9] Building the Big Society, 18 May 2010, The Cabinet Office

[10] David Cameron's localism bill is incoherent, say MPs, Polly Curtis, 9 June 2011, The Guardian

[11] Cameron promises 'people power' in public services plan, 11 July 2011, BBC News

[12] Delivering a Localist Future: A route-map for change, Sue Charteris, Katy Donnelly, Phil Swann and John Houghton, 2010, 2020 Public Services Trust at the RSA

[13] Cameron promises 'people power' in public services plan, 11 July 2011, BBC News

[14] Ed's localism pledge, 29 September 2010, Municipal Journal

[15] Don't dismiss big society warns Healey, 29 September 2010, Municipal Journal

[16] Is the community right to challenge in danger of falling by the wayside? Kristian Scholfield, 29 April 2013, The Guardian

[17] Localism Act: Community Rights, 1 December 2011, LGiU

[18] Understanding the Community Right to Challenge, September 2016, The Social Investment Business

[19] People Power, Findings from the Commission on the Future of Localism: Summary Report, 2017, locality

[20] Community Right to Challenge comes into force, 27 June 2012, Ministry of Housing, Communities and Local Government