The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The Public Services (Social Value) Act 2012, passed on 28th February 2012, has the potential to significantly impact the well being of communities for whose benefit services are procured. The Act requires every public body operating in England and Wales, e.g. local authorities, government departments, NHS bodies, housing associations (but not the Welsh government itself) procuring services to consider whether an improvement of the economic, social and environmental well-being of an area can be achieved as part of the services procured for it, as well as just having an eye to the financial efficiency of expenditure. Where appropriate, public bodies are now required to write these social value objectives into the procurement process.
To what sort of contracts does it apply? And what about the contracts it does not expressly mention?
The Act requires contracting authorities to have regard to economic, social and environmental well-being in connection with public services contracts, i.e. a contract in which a contracting authority engages a person to provide services. A contracting authority is any body that is obliged to comply with the public procurement rules reflected in the Public Contracts Regulations 2006.
However, the Act does not apply to contracts purchasing works or goods although it does apply where an element of works or goods are procured alongside services. Even in those contracts not directly the subject of the legislation, the Government is apparently encouraging public bodies to consider maximising social value.
“By focusing on services, the legislation rightly focuses on the types of contract with the greatest direct impact on individuals and communities, and consequently where wider value is likely to be most relevant. I stress that it is not the Government’s intention to suggest that there would not be benefits in considering wider value in other forms of contract, but we do not believe that they warrant legislation at this time.“ Nick Hurd (Minister for Civil Society, Cabinet Office, Public Bill Committee, 19 October 2011).
What does this Act mean in practice for commissioners?
In practice three things will happen:
- All contracting authorities in England and many in Wales will have to consider the relevance of social, economic and environmental requirements when commissioning services, whatever the type of service and whatever the value of the contract;
- This should lead them to develop a policy that puts sustainable procurement at the heart of their commissioning practice, and in this context many such bodies will consider the application of social value not only to service contracts but also to contracts for works and also the supply of goods, as is already the practice with many local authorities;
- The Act amends Local Government Act 1988, thereby enabling councils to rebut any of the “non-commercial issues” that they have been barred from taking into account in procurement processes since 1989.
If you are a service provider, how should you respond?
Many of our clients deliver a wide range of social benefits in the public services that they provide, most of which are not recognised or measured by the commissioning public body. This Act provides service providers with the hook to widen the scope of their offering and to scrutinise the extent to which, especially in pre-procurement market sounding exercises commissioners are embracing the requirements of this new legislation.
Why isn’t the Act more directive in its approach? Where are the sanctions?
The Act does not start a revolution but it nurtures seeds of change that cannot die. It brings good behaviour to the forefront of public services and provides a useful counter balance to incompetent commissioning and procurement practice.
For more information
Hot off the press is an introductory guide, [media type="link" id=38], that Social Enterprise UK published on 28th February 2012, written with the assistance of Anthony Collins Solicitors.
Mark Cook has been involved with the shaping of the Act since the Bill’s inception, as the country’s leading legal expert in community benefits in public procurement. He can be contacted on 0121 212 7472 and firstname.lastname@example.org.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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