NAVCA Blog - posted in September 2011
The following blogs were posted in September 2011.
With the publication this week of the government's much-anticipated Best Value Statutory Guidance (Guidance), a number of NAVCA members have enquired what exactly is meant by 'Best Value': have the recent discussions about 'social value' influenced the definition, or does it still mean what it meant twelve years ago in the Local Government Act 1999 (LGA)?
Somewhat paradoxically, the answer seems to be 'both'.
The government does not propose to define Best Value beyond what was set out in the LGA. It does intend, however, that provisions for Best Value should be implemented in the light of more recent discussions about environmental and social value, as indicated in the New Draft Best Value Statutory Guidance Consultation: Summary of responses and Government response (Response) and the new Guidance document itself.
Notwithstanding the imminent repeal of the statutory Duty to Involve, the government also intends the statutory Duty to Consult to ensure that representatives from the voluntary and community sector contribute to determining how the Duty of Best Value is exercised locally.
2. Detail (my emphases)
The LGA states
- A Best Value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness. (LGA, section 3).
The present government restates this definition (with minor addenda):
- Best Value requires an authority to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy (costs), efficiency (throughputs) and effectiveness (outcomes). Under Best Value, decisions are made not just on any one of these, but a combination of all three - so this allows social value to be a key consideration. (Response, paragraph 14)
On 'social value', it then states
- In general we are of the view that setting out a detailed definition of 'social value' is not the right role for central government and would inevitably stifle local creativity. We need to provide the latitude for Best Value authorities to work out the detail of what 'social value' means locally for themselves. However, we have amended the text in the final guidance to provide more clarity on what social value means as a concept. This is in line with the Chris White Private Members Bill - Public services (social enterprise and social value). (Response, para. 15)
The new Guidance does, however, develop and extend the idea of Best Value:
- Under the Duty of Best Value, therefore, authorities should consider overall value, including economic, environmental and social value, when reviewing service provision. As a concept, social value is about seeking to maximise the additional benefit that can be created by procuring or commissioning goods and services, above and beyond the benefit of merely the goods and services themselves. (Guidance, para. 2)
The methodology for achieving this is outlined:
- To achieve the right balance - and before deciding how to fulfil their Best Value Duty - authorities are under a Duty to Consult representatives of a wide range of local persons; this is not optional. Authorities must consult representatives of council tax payers, those who use or are likely to use services provided by the authority, and those appearing to the authority to have an interest in any area within which the authority carries out functions. Authorities should include local voluntary and community organisations and small businesses in such consultation. This should apply at all stages of the commissioning cycle, including when considering the decommissioning of services. (Guidance, para. 3)
- Authorities should be responsive to the benefits and needs of voluntary and community sector organisations of all sizes (honouring the commitments set out in Local Compacts) and small businesses. (Guidance, para. 4)
The new guidance is tied explicitly to national and local Compacts:
- Government is committed to the principles in the renewed National Compact and recognises the value of Local Compacts that are working well in many places across the country. We have now highlighted the National Compact in the introduction to the guidance. We do not think any further reference to Local Compacts is required in the guidance as it already clearly states that Best Value authorities should honour commitments set out in them. However, we have amended the introduction to the guidance to mention that the guidance does not replace any Local Compacts that are in place. (Response, para. 34)
Finally, the nature of statutory guidance is explained:
- The guidance is statutory, based on the Duty of Best Value. This means Best Value authorities have to have regard to it, and could be challenged to show they have done so, but cannot be compelled to follow it. (Response, para. 36)
NAVCA is currently consulting with Public Law Project partners on the precise interpretation of this explanation, but it seems clear that a Public Law challenge could require an authority to demonstrate in court that the requirements of the guidance - and possibly the local Compact, too - have been fulfilled.
Concerns about the proposed repeal of the Duty to Involve are also addressed by the government:
- Once the Duty to Involve is repealed, the separate Duty to Consult local representatives (which supports the Duty of Best Value) will remain in place. This will be backed up by the additional support for voluntary and community groups in the Best Value guidance...
- ...consulting the community on how it will fulfil its Duty of Best Value (which applies to all its functions) would still be covered by the Duty to Consult under Best Value. (Response, para. 39)