New Models and New Challenges for Public Services – a Legal Perspective Tracy Giles 10 March 2015

The Welsh Context The Changing Landscape Redefining Local Government Power to the People Necessity drives innovation What do you need to think about?

Your Local Context (1) Many different solutions – which one fits best? The role of the Council: - Co-operative; - Commissioning only; - “Pragmatic Enabler”; - Collaborator; - The Ensuring Council - Activist Council - Something else – re-imagining?

Your Local Context (2) Working Together Collaborative Approaches Health and Voluntary Sector

Your Local Context (3) Individual service lines or wholesale approach/rethink? The changing role of members; Education/understanding Culture shift; and Leadership behaviours; Where’s the evidence for Service Users? Which activities make the difference?

Practical hints and tips…  Importance of due diligence  Public sector powers  Corporate design  Procurement  Staffing issues  Transfer of assets  State aid  Contract / relationship management

Of course…the Figures!

Is whatever model is proposed the correct solution? Some of these solutions are not a panacea Cannot be CICed out! Difficult decisions will still need to be made and managed Needs to be sustainable and viable Challenges will change over time

Due Diligence Scope Finance Staff Communities Political appetite/will Operational

Public sector powers  Local authorities – no general power of competence in Wales (yet!)  Wellbeing implications…  Complexities with regards to how this links with some services  WLGA Guidance

Corporate design What kind of model:  Mutuality and staff/service user engagement  What kind of service?  Charitable?  Commercial?  Neither?  What kind of organisation?  Governance  Relationship with “parent” body

Procurement  What is the real risk?  It should not drive the business model…  Managing Conflicts  Is getting business from the public sector (including the body “spun out of”) crucial?  Impact of New Procurement Regulations  Social Value  There are solutions…

Staffing issues  TUPE regulations may apply  If an in-house service is being outsourced then staff dedicated to that service will transfer under TUPE  Beware of pensions  Manage the risk in advance  Consultation and Communication  Helpful Q&As  Some confusing messages and assumptions  Opportunities to improve and innovate

Transfer of assets  Where will the new body be based? On what basis will it occupy those premises?  What about other assets and equipment?  What about IT or software licences, or intellectual property?

State aid  Key elements:  Aid from public sector  Which favours certain “undertakings”  And distorts competition  Which affects trade between EU members states  “De minimis” level of €200,000 over three years (around £170,000)  Other exemptions

Contract / relationship management  How will public body manage relationship?  And how will it manage contract?  Performance and accountability  Will relationship change:  Procurement issues

Documenting it… - Business Transfer Agreement - Service Contract and Specifications - Constitutional Documents for new entity - Leases/Licences - Pensions Arrangements?

Journey not a destination Go-live is not the end; Business and governance will constantly need to adapt and evolve Stepping back and assessing New future…new exciting challenges and opportunities…especially in Wales

Knowledge and Experience elsewhere

If you have any queries or comments in regards to this document please contact Tracy Giles of Anthony Collins Solicitors LLP on or