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’.

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’

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 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. 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 & ‘More Authroity Contradictions

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01/06/2020 to the ICO – Subject: FS50880989

For the sake of clarity, I have no interest in the ASC rates to which the Authority refers. Their reference, in isolation ignores that my request is seeking all information they reviewed. Having spoken with the person heading up the NSoRC my request was directed at the other data, in particular claims reviewed.

The Authority is being obviously obtuse, obstructive. My conversation with Mr Gannicott of HE gave rise to my request, the application for information follows his disclosure:
The rendered contract rates may have been utilised but according to the author of the NSoRC, Martyn Gannicott, further references were utilised:

28/06/2019
“… we’ve referenced obviously CECA, we’ve referenced um, other documents such as the working rule, national working rule agreements and so on and so forth um for labour rates, um and we’ve also looked at some of the claims history and the claims that have been settled, um and we’ve also looked at some history and, and information around the um tendered rates for those work elements from our contractors.”

“You know, it’s all about being fair and reasonable in my view. And we, we did quite a bit of analysis on um, we took a sample of claims… I think off… It was around 100 claims um…”
“So, these were completed claims, if you like, so, which we were able to track through their entire journey, and we took a mixture of types of claims that were proportionate to the, to the mix of claims that we have, so whether it’s, I don’t know, fencing damage, barrier damage, lighting damage, re repair of road surface, all of those different types of categories we, we try to get a fair mix of claims within the 100 so that … and working on a percentage basis usually it helps, doesn’t it?

It was representative as, as much as we could do in that sample of the work mix that’s carried out and so, in this arena.”

These were above and below threshold claims

“Um, and the, the element for, for me that, that, that came out of this was that, as you would expect, on an individual claim by claim basis there wasn’t a, you know, some of it correlates, some of it didn’t, there were some ups and there were some downs when you applied the national schedule.”

I am seeking the claim information etc. utilised

02/06/2020 to the ICO:

Further to my email of yesterday, if the complete transcript will assist, please say. A further extract from the record is below. This too confirms the existence of a schedule of Area 9 rates by Mr Gannicott, the lead Highways manager for the ‘national schedule’ issued 24/06/2019.

The Authority has failed to provide me with:

  1. The claims Martyn (the NSoRC) reviewed, above and below threshold
  2. The schedule of rates Martyn (the NSoRC) reviewed and was to seek permission to release – an agreement that was to come from their General Counsel’s office, the very department blocking my requests

 I asked:

PS: But presumably at some stage you’ve looked at, and I, I generally refer to Area 9 because it’s the one that we have the most problems with, 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?

Martyn:
We do.

PS: So why, why not just use those?

Martyn:
because Area 9, err versus all the other areas in the country, um are all different because they’re all, they’re all competitively tendered at a particular point in time, um and what we were looking at was to try and come up with a standardised cost on a national basis for, for a whole myriad of reasons. So, I think taking one set in isolation … is not necessarily the an-answer for a, a national challenge

I asked:

 PS : So, presumably you, you have a copy of the Area 9 damage to crown property schedule of rates?

Martyn:
My, my team will have somewhere, yes. [Slight laugh]

PS:  Could I have that?

Martyn
Um I… So, the question is I’m not sure. I just need to cross check and make sure, ’cause they, they, they do get a little bit tetchy over confidentiality, um…
 [inaudible 0:25:46] speaking with Mr [inaudible 0:25:47] who you know and love.

Um so I, I, 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.

I also asked:

PS: Do you know, with these DCP rates, are, are they, do they change annually? Are they reviewed annually?  Sorry, I meant the Area 9 ones that…?

Martyn:
Oh, the Area 9 ones? No, I think they’re fixed for the contract period. I think there might, might well be some inflationary adjustments and things, I’ll have to check in the individual contracts

PS: Is there any, is there any chance, so that I can get a, a meaningful letter off, that somebody can get those DCP rates to me in the next week or so?

Martyn
Um the simple answer is I don’t know … but I will ask the question … and leave that one with me.