Information provided by Claims Management & Adjusting Ltd (CMA) to assist Third-Parties – drivers, fleets, hauliers, their insurers AND Highways England resolve claims following incidents on the Strategic Road Network (SRN claims) such as collisions, fires and fluid spills.
|The systematic overstatement of claims by a failure to comply with the contract and/or mislead. “Exaggeration is fraud.” 11/2019 Christina Michalos Counsel to Highways England. Read more here|
|Some contractors make false statements to Third Parties and the Courts to support claims for losses they do not incur, to justify uplifts they do not pay. Read more here.|
|The above conduct is undertaken in the name of Highways England, with their knowledge and enabled by the Authority whose statements are unreliable. Despite the potential effect upon the Public Purse (taxpayers money), the National Audit Office has failed to act.|
|Road Traffic Collision (RTC)||Fires||Spills|
|Bridge / Parapet Strikes||NSoRC & Costs||Current Issues|
|Time Lines – 2013 on||Driving||Useful Information|
What is the cost of repair or replacement following DCP (damage to Crown property), and the “cost to whom?” Is it the cost to Highways England or cost to their contractor? The sums would be different as the cost of repair to Highways England would include a profit element to the contractor whilst the cost to a contractor (without profit) would be a lower figure.
2018, HH Godsmark explained, when reviewing one of many Highways matters appearing before Courts:
‘It seems to me that the only sensible interpretation of the authority is that it relates to cost of repair to Highways England. Otherwise it would not reflect the measure of damages by reference to diminution in value.
It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via the contractor’.
But ‘oddly’, Third Parties are being charged a different, much higher, sum in many Areas – and Highways England is aware of this.
Quotes from 2019:
- ‘I wish to express my concern that the Information Commissioner was forced to expend resources, which I suspect are less than abundant, on requiring a public authority to do that which it should do as a matter of course, i.e. comply with the law.’ 13/09/2019 Judge of the Upper Tribunal
- “You know, you know the very minimum that is going to happen as a result of this call, or certainly as a result of the judgment is that we will have a schedule of rates published by Kier, so that this thing is transparent”.
- “… this is going to be a fairly formative conversation with Kier and potentially with Balfours. As I said to you, the minimum we’re going to get to is a published schedule of rates and we’ll get this Appendix A Annexe 23 with its rates. I’m not happy with the uplifts, what I can do about them is a moot point but we’ll um…I’ll certainly be raising that” 01/2019 Jim O’Sullivan CEO of Highways England
We continue to await the assured information (12/2019). Highways England talk a lot about ‘transparency’, it was apparently a reason for NSoRC … possibly in 2020 they will act as they say? However, we raised the lack of transparency in 2016 … and the overcharging, misrepresentation etc. read more here … we set the facts out a while later and again sought transparency – read yet more here
Highways England still appear to be without a schedule of rates and unable to compile one – 31/10/2019 NSoRC was abandoned. Appendix A to Annex 23 has not been complied with by Kier since 07/2014.
- “Below threshold (£10,000) the main issue is the exaggerated (on occasions not incurred yet claimed for) rates being used by contractors whereas above the threshold, Highways England does not reconcile charges before paying them – it is ‘too expensive’ and even if it were not, they (apparently) have no schedule of rates against which to check contractor invoices pre-payment.“ 03/2019 P. Swift MD CMA.
If a contractor’s operatives work 8am to 5pm and are paid an uplift after this, it appears reasonable to reimburse them. But what if the operatives work shifts and are not paid the uplifts claimed? How is such a claim, for a cost not incurred, appropriate, right … honest? Why is this misrepresentation to the public and Courts in the name of Highways England being permitted? What faith can be placed in anything emanating from the contractor?
- ‘ASCs include a schedule of rates – these should be used as the basis for the cost pack (for claims both below and above £10k)‘. 05/2019 Matt Kay, Director, Transport Financial Audit (National Audit Office)
The above is a minute note of a meeting with Highways England. The Authority’s auditor, raising the issue of there being no schedule of rates, was apparently reassured by the explanation a schedule of rates exists. However, when the above was disclosed to Highways England they quickly countered – there was a misunderstanding; they have no such schedule of rates!
- Following the introduction of NSoRC, we asked Highways England ” ….we’ve looked at Area 9 contract and looked at their damage to crown property rates, their defined costs, and you have a schedule of rates?
- “We do.”
- Asked if we could have them:
” I just need to just double check on that but in, in principle, um assuming our legal team say yes, then that’s fine, then no reason why we can’t do that. ” 06/2019 Martyn Gannicott FCInstCES FRICS, Director of Commercial Services, Commercial & Procurement
The legal team must have said ‘no’ because the schedule of rates for Area 9 that Martyn looked at have not been provided.
- “Exaggeration is fraud.” 11/2019 Christina Michalos Counsel to Highways England
Yet the Authority failed to address this in 2017 when we met. The state-enabled exaggeration and fraud continue. We have reiterated the issues …
Highways England provides false info’ and fails to assist the investigation of wrongdoing.
A Judge finds ( and the Authority accepts), our enquiries were conducted properly, were reasonable, have a serious purpose yet we have been provided inadequate or inadequate responses and wrong information citing:
- a contractor inflating their costs on a scale arguably amounting to fraud
- Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold
- a lack of transparency and an inability to check costs e.g. on staff overtime and using false registration VRM’s
- Highways England failed to do that which it should do as a matter of course – comply with the law. Read more here.
We have offered to assist Highways England put into place a process that is not only transparent and justifiable but also protects the Authority from being overcharged. The Authority currently only recovers £1 in every £5 and is understandably seeking to improve upon this (a motive for a change) but:
- Is this statistic surprising if there is no pre-payment audit?
- What conduct does this encourage?
- Is it unsurprising we have yet to encounter a correctly priced contractor bill paid by the Authority?
- Recovering payments is one approach, but what of ensuring those payments were not excessive in the first place?