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As part of its ongoing process of modernisation and reform of primary and community care, the Department of Health (DoH) is committed to supporting the role of Social Enterprises as delivery models for these services. This has been set out in a number of policy commitments that recognise the important and growing contribution that Social Enterprises make to the future of health and social care.

The Right to Request Guidance of November 2008 (Social Enterprise – Making a Difference – a Guide to Right to Request) provides NHS staff with an opportunity to transform patient care through the creation of Social Enterprises. The Right to Request Guidance enables primary and community care staff to request that their Primary Care Trust (PCT) consider their proposals for establishing a new Social Enterprise to deliver services currently provided by the PCT.

The Health White Paper has heralded an acceleration of the ‘Right to Request’ programme and an extension of it to other parts of the Public Sector, including Social Services.

Key points to note are:

Corporate Structures

• A Social Enterprise is a business which can adopt a variety of legal forms. Each legal form carries advantages and disadvantages and offers degrees of protections and financial flexibilities. The pressure to set up quickly can often lead Social Enterprises to adopt a legal form without a real understanding of how it works and without a proper assessment of whether it is suited to their objectives.
• We advise clients on all the legal structure options available to set up a Social Enterprise including Charities, Companies Limited by Shares or Guarantee, Community Interest Companies, Industrial and Provident Societies and all the related incorporation issues and procedures.

Governance and Constitution

• It is vital for a Social Enterprise to ensure that the right governance systems are in place. This includes recruiting the Board, ensuring the right mix of skill sets and knowledge and ensuring clear lines of responsibility and accountability within the organisation.
• We advise on all aspects of corporate governance including the role and responsibilities of Board members, training, insurance requirements and assurance structures to ensure the legality and compliance of the activities of the Board.

Workforce issues

• Staff who transfer from a PCT to a Social Enterprise will transfer on their existing terms and conditions of employment under the Transfer of Undertakings (Protection of Employment) Regulations 2006.
• Under the Right to Request Guidance staff who transfer to a Social Enterprise can continue to access the NHS Pension Scheme whilst working on NHS funded services provided that the right legal forms are employed. The policy, legal and contractual issues surrounding pensions are extremely complex and still in a state of flux particularly in relation to non-NHS staff and new recruits.
• We have been advising on the implications of the Right to Request guidance and we are now actively involved in providing advice and guidance on this key issue to PCTs, Social Enterprises and the DoH.  

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• Governance and Constitutional
• Employment, HR and Pensions
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• Primary Care and Community Services

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