190812 FoI National Schedule Of Repair Costs For Network Damage

12/08/2019 to Highways England Company Limited – FOI 100236 (ICO FS50880989)

I refer to the information you have provided at ‘Third Party’  in which it is stated:

‘The National Schedule of Repair Costs have been derived from competitively tendered rates from across England. In arriving at the National Schedule of Repair Costs we have taken in to account other information available to us to ensure that they can be substantiated as being reasonable costs.’

I ask to be provided:

1. All rates and other information used to calculate and/or substantiate the schedule provided 24/06/2019.

The online schedule of rates has changed since they were first posted and now display a new set of charges ‘Version 1.1 from 23 July 2019’.

I ask to be provided:

2. All information giving rise to the discovery the original rates were incorrect and

3. All rates and other information used to calculate and/or substantiate the schedule appearing ‘Version 1.1 from 23 July 2019’

I ask to be provided:

4. All information about the rates you, the Authority, will be pay; whether they are identical rates to those a Third Party is to be charged and if not, how this differs and why.

5. all exchanges with your contractors regarding the new process.

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From Highways England:

Thank you for your request for information about National Schedule of Repair Costs for Network Damage dated 12th August. I am dealing with it under the terms of the Freedom of Information Act 2000.

The due date for issuing a response is 10th September 2019.

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11/09/2019 to Highways England Company Limited,

You have written:

‘Subject: National Schedule of Repair Costs for Network Damage reference number FOI 100236

Thank you for your request for information about National Schedule of Repair Costs for Network Damage dated 12th August. I am dealing with it under the terms of the Freedom of Information Act 2000. The due date for issuing a response is 10th September 2019′

When can I expect to receive the information?

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12/09/2019 to Highways England Company Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited’s handling of my FOI request ’24/06/2019 National Schedule of Repair Costs for Network Damage (Green Claims)’.

You have provided no information nor indicated by when I can expect this.

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11/10/2019 to Highways England Company Limited

I sought an internal review 12/09/2019 having not received a response to my FoIA request.
20 working days have passed and I remain without the information. Please advise by what date I can receive the information and Internal Review.

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18/10/2019 – response received but …. 

25/10/2019 from Highways England Company Limited

My apologies that this internal review was sent to the wrong WDTK e-mail thread

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25/10/2019 to Highways England Company Limited

Understood, these things happen. But I am still waiting a response to the IR on this matter – I sought an internal review 12/09/2019 having not received a response to my FoIA request.
Please advise by what date I can receive the information and Internal Review.

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28/10/2019 From the ICO:
 ICO Case Reference Number FS50880989

Thank you for your correspondence of 9 October 2019 in which you complain about the above public authority’s failure to respond to your information request.

When considering complaints about delayed or failed responses to information requests our priority is to ensure requesters receive a response as quickly as possible where one has not been provided, and to monitor any persistent trends which might indicate that a public authority is routinely failing to respond within the statutory timeframe.

We will use intelligence gathered from individual cases to inform our insight and compliance function. This will align with the goal in our Openness by design strategy to improve standards of accountability, openness and transparency in a digital age. We aim to increase the impact of FOIA enforcement activity through targeting of systemic non-compliance, consistent with the approaches set out in our Regulatory Action Policy.

I have written to the public authority reminding them of their responsibilities and asking them to respond to you within 10 working days of receiving our letter.

If you do not receive any response within 10 working days, please contact us.

The late response will be recorded and as described will form part of our on-going activity to consider the performance of public authorities and the FOIA.

The Commissioner does not need to serve a decision notice in an individual case in order to use that case as evidence for future enforcement action. Should you wish the Information Commissioner to issue a decision notice for your specific complaint we are able to do so.

If the public authority responds and refuses to release the information you have asked for and you are dissatisfied, you may, after exhausting their internal complaints procedure, complain to us again.

Thank you for bringing these concerns to the attention of the Information Commissioner.


11/11/2019 from Highways England

I am writing to confirm that we do hold the information you requested on
12^th August 2019 but have decided that some of this information cannot be
disclosed.

With reference to your request (FOI 100236) as below:

1. All rates and other information used to calculate and/or substantiate
the schedule provided 24/06/2019,

  • Released, in part.
  • The rates used to develop the NSoRC are Commercially Sensitive.

2. All information giving rise to the discovery the original rates were
incorrect and

  • The initial NSoRC published 24^th June 2019 were not considered incorrect.
    The costs were issued as a pilot to engage the industry with a view to
    obtain feedback. Aspects of the NSoRC were amended following analysis with
    additional data. Since these reviews were regularly exercised, the
    specifics requested cannot be provided since updates at this granular
    level of detail are not routinely kept and/or the requested data is
    Commercially Sensitive.

3. All rates and other information used to calculate and/or substantiate
the schedule appearing ‘Version 1.1 from 23 July 2019’.

  • As per request 1
  • The tendered rates used to develop the NSoRC are Commercially Sensitive.

4. All information about the rates you, the Authority, will be pay;
whether they are identical rates to those a Third Party is to be charged
and if not, how this differs and why.

  • Highways England’s agreed tendered rates with our Service Providers are
    Commercially Sensitive. This includes the variance with the NSoRC since it
    could be used to determine the Commercially Sensitive rates.

The information that can/cannot be released is detailed below in relation
to your queries listed above, however please note, the National Schedule
of Repair Costs (NSoRC) is currently suspended following the scheduled
Pilot and is now under review

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13/11/2019 to Highways England Company Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited’s handling of my FOI request ’24/06/2019 National Schedule of Repair Costs for Network Damage (Green Claims)’.

I do not accept that the information is commercially sensitive. I refer you to the following statements by HE staff:

1, these rates are presented on claims, they, therefore, are not considered sensitive.
2. the information held/viewed by the NSORC team included Area 9’s schedule of DCP Rates – this is in their possession but permission to release had to be sought from your General Counsel’s office. Area 9 is an ASC and AIW rates have previously been supplied in response to an FoIA; they are not considered ‘sensitive’.

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11/11/2019 clarification provided to assist with the location of the information

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11/12/2019 from Highways England

I can confirm that your internal review is being carried out and I will endeavour to provide this to you by 16 December 2019.

I have noted that you have referred to an e-mail dated 29 October 2019 below. Please could provide us with a copy of the sent e-mail (as an attachment) for our records as we currently do not hold a record of receiving this correspondence on that date.

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11/12/2019 to FOI Advice FOIAdvice@highwaysengland.co.uk
Cc: casework@ico.org.uk
Subject: RE: FoIA WDTK submission FOI 100236 & ICO FS50880989 IR clarification

I have only located reference to a copy sent internally at the moment.  Principally it relates to the conversation I had with NSoRC, a pre-arranged call* to Martyn of some 30 minutes before his holiday – I anticipate he will recall what was said but I will have a record if required.  Also the lengthy chat with Tim Reardon.

However, Tim / GLD will possess record of this, it is exhibit 11, page 67, to my statement (5) Appeal No. EA.2019.0119.

*Transcript for registered users – click here

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16/12/2019 Review response from Highways England

Q1:
The teams’ response to this was to provide an excel document which provided resource list and the number of resources used to create the rate found in the National Schedule of Repair Costs. The rates that were used to develop the National Schedule were the tendered contract rates which are withheld under Section 43 commercial interests, this is in line with previous responses on tendered contract rates. I do find however that a part of your request was not addressed which was the part about ‘other information used’. I can confirm that the other information used were CECA rates and CIJC rates, these were used for comparative purposes of the rates that appeared in the National Schedule. Under Section 21 we do not have to provide these rates to you as they are already available to you by other means. CECA rates can be found at https://cecascotland.co.uk/wp-content/uploads/2018/02/CECA-Dayworks-31-August-2011.pdf and CIJC rates can be found at https://www.ucatt.org.uk/files/publications/160929%20CIJC%20final.pdf.

Q2:
The teams’ response to this was ‘The initial NSoRC published 24th June 2019 were not considered incorrect. The costs were issued as a pilot to engage the industry with a view to obtain feedback. Aspects of the NSoRC were amended following analysis with additional data.’ As the request was for information giving rise to the discovery the original rates were incorrect and Highways England position is that they were not considered incorrect, the response provided accurately answers the question asked.

Q3:
Please see review of response to question 1

Q4:
The teams’ response to this was ‘Highways England’s agreed tendered rates with our Service Providers are Commercially Sensitive. This includes the variance with the NSoRC since it could be used to determine the Commercially Sensitive rates.’ Having discussed this with the team we have concluded that this did not provide a clear enough response. The response should have been as follows – Highways England are charged Defined Cost plus Fee. For clarity the rates that exist are the tendered contract rates which are withheld under Section 43 commercial interests as stated above. No other rates exist.

It has been noted that the question submitted on the 13 August 2019 which was additional to those from the 12 August was not addressed. Please accept my apologies for this, it appears that this was missed because it was in a separate e-mail to the others which the team missed when providing the response of 11 November. I have reviewed this request and this does appear to be similar to one that was received in another of your requests about NSoRC on 6 November given reference FOI 100507, namely the first part of Q9. The two requests are set out below for comparison –

5. all exchanges with your contractors regarding the new process. – FOI 100236

9.Your engagement with contractors following implementing NSORC; all information to and from, to this date– FOI 100507

I appreciate that the request from 100507 came in after your 100236 request but they do appear to cover the same point. Please can you confirm if this is the case and if you are content that we cover this topic in the response to 100507

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to ICO 19/12/2019

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