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David Alcock, Anthony Collins Solicitors Friday 27 th June 2014

David Alcock, Anthony Collins Solicitors Friday 27 th June 2014. Our Place! Getting the legalities right. Who’s he?. Anthony Collins Solicitors – based in Birmingham, working all over the country Leaders in the “space” between the public, private and third sectors

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David Alcock, Anthony Collins Solicitors Friday 27 th June 2014

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  1. David Alcock, Anthony Collins Solicitors Friday 27th June 2014 • Our Place! • Getting the legalities right

  2. Who’s he? • Anthony Collins Solicitors – based in Birmingham, working all over the country • Leaders in the “space” between the public, private and third sectors • Specialising in social enterprise • Public sector spin outs – Mutuals Support Programme • Community asset transfer • Wide range of social businesses • Working with communities to deliver change

  3. In the spaghetti zone… • Local residents • Local authority • Other stakeholders • Who’s in the • middle? • Funding • Programmes • Regulators • Delivery Partners • Delivery Partners • Delivery Partners

  4. Delivering neighbourhood community budgets Key question – creating change: How do you deliver new models of services? Key issue – public sector procurement rules The assumption: open market competition = value for money Making community budgets more than just glorified consultation

  5. What legal issues does this raise? Governance and decision making Public sector powers New legal structures Procurement Among others…

  6. What do you need to navigate this journey? CLARITY: Purpose Partners And patience…

  7. Governance and decision making Governance – the word we use for how things are run Accountability Who decides and how?

  8. The “Spectrum of formality” • Informal -------------------------------------------------- Formal • Informal Arrangement Joint Venture Agreement New body • MoU Subcontracting

  9. Setting up a new body • Setting up a separate legal entity for the purpose of running a service / project(s). The new body signs up to the contract. • e.g. a new company or Limited Liability Partnership • The board or management committee of the new body can comprise representatives from all parties and will reflect the rights and obligations of each. • All parties combined and working together for a common purpose.

  10. Setting up a new body • When and why? • When you need partners to have an equal stake • When you want to do things like: • Employ staff • Deliver services • Own assets… • … independently of the different partners involved • When you want to protect community members from liability

  11. Example: Compact Contract Management CIC • CCM C.I.C. • Chase Council for Voluntary Service • Lichfield and District Voluntary Sector Support • Voluntary action Stoke on Trent • Stafford District Voluntary Services • Tamworth Centre for Voluntary Service • (… and some other partners)

  12. Public sector powers • The whole question of “vires” • Each public sector body has its own legal structure, usually in an act of Parliament • They can’t just do whatever they want… • … although local authorities nearly can • Understanding the decision making process and the constraints for each of your partners

  13. Legal structures - the options Profit distributing structures: • Companies limited by shares • Including PLCs • Limited Liability Partnerships • Co-operative Societies • Community interest company ltd by shares

  14. Legal structures - the options Non profit distributing structures: • Companies limited by guarantee • Community Benefit Societies • Community interest company limited by guarantee • Charitable Incorporated Organisation (CIO) • Charitable status?

  15. Public sector procurement The basic issue: • European treaty • EU procurement rules • Assumption built in – open competition is the best way to get value for money services • How the rules apply depends on: • the nature of the services • the overall value of the contract

  16. Other legal issues that might come up Could include: • State aid • Employing staff and TUPE • Transfer of assets • Regulatory issues

  17. Case study – One Ilfracombe The key aims for Ilfracombe Some assets to transfer (car parks) Some services to deliver Some partners to draw in A community to involve

  18. Delivering community budgets The issues for Ilfracombe Commissioning or delivery? What kind of delivery body? For what purpose? In what relationship to the public sector?

  19. Matters for debate What happens to assets? Independent, or linked into the Council(s)? Who makes service decisions?

  20. The Ilfracombe solution Creation of “One Ilfracombe” (Ilfracombe Together Ltd) Legally separate body Company limited by guarantee Membership – the key public sector partners (“Teckal”) Strong link to Town Council – but not outright ownership or control

  21. Other issues The best legal structure Charitable status? CIC? State aid TUPE and staffing Council powers (“vires”) and cultures

  22. Over to you Questions? Comments? Come and find us at the marketplace

  23. David Alcock, Anthony Collins Solicitors 0121 212 7431 david.alcock@anthonycollins.com • Getting the legalities right – thanks for listening!

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