191106 FoIA NSORC Pilot Outcome

06/11/2019 FoIA request to Highways England – 100507
To: FOIAdvice@highwaysengland.co.uk

191105 Suspension of the NSORC – National schedule of repair costs for network damage, Green Claims) – pilot outcome (Third Party Claims)

I am seeking the following information:

1. The pre-implementation and ongoing assessment of the benefit to Third Parties and HE

I am particularly interested in the information indicating the recovery rates is £1 in every £5 and how, given HE are bringing claims in-house, the benefit is perceived as being other than for HE and HE alone.

2. Engagement with the insurance industry; information to and from

3. Responses for and feedback against the NSORC; all feedback from those involved. I anticipate personal data will be redacted but the identity of commercial entities will remain

4. Questions raised by all parties (within and without HE) about the process and the responses

5. Examples in Areas 9, 10 &12 of ‘The contractual arrangements between Highways England and its service providers, containing separate regimes for claims above and below a £10,000 threshold, and different pricing methodologies, leading to varying labour and equipment rates and therefore significantly different repair costs being applied to similar repairs’

The defined cost process has been described to us and the Courts as an ‘actual cost’ or ‘base rate’ to which an uplift is applied. The defined cost (however it is arrived at) is common to both TP and HE.

6. How could the difference ever be more than the difference between ‘fee’ to HE and TPCO to a Third Party i.e. no more than 20% approx.. as opposed to the stated ‘significant’?

7. How it was determined the costs did not sufficiently reflect the ‘open market’,

a. which ‘open’ market and
b. the data relating to this

8. Your better understanding of the he requirements which will need to be met to enable a National Schedule to be successfully implemented

9. Your engagement with contractors following implementing NSORC; all information to and from, to this date. This will include all information to and from contractors setting out the suspension of NSORC; notification, feedback, implications How it affects them, their charging and claims), actions and intentions

10. The final assessment of NSORC, all reports and feedback.

NORSC explained ‘By introducing a national schedule, we had hoped to provide the insurance industry the benefit of the rates that we had been able to secure in a competitive market.’

11. the rates you have been able to secure in a competitive market

I note you will revert to pursuing claims based on the ‘actual cost’ of carrying out the repairs and will continue to explore options for a transparent and equitable set of rates.

12. What is meant by ‘actual cost’ and the actual costs of carrying out the repairs in Areas 6, 9 10 & 12 (as at 01/03/2019) and if different, the:

13. ‘actuals’ for re-pricing any claims that have been priced under the National Schedule of Repair Costs


11/11/2019 From: FOIAdvice@highwaysengland.co.u>
Subject: RE: NSORC pilot outcome

Thank you for your request for information about NSORC pilot outcome dated 6 November 2019. I am dealing with it under the terms of the Freedom of Information Act 2000/Environmental Information Regulations 2004.

The due date for issuing a response is 4 December 2019.

If you have any queries about this letter, please contact me. Please remember to quote reference number 100507 in any future communications.

Yours sincerely

Amanda Speight, Freedom of Information Team
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT
Web: http://www.highways.gov.uk


29/11/2019 From: FOI Advice <FOIAdvice@highwaysengland.co.uk>

Thank you for your request dated 6 November.

Before we can proceed with this request we require the following questions to be clarified by you.

4. Questions raised by all parties (within and without HE) about the process and the responses

In order for us to proceed with this question please can you clarify what you mean by the process. Are you referring to the implementation of NSoRC? Can you please also clarify what you mean by the responses? Is this responses by Highways England? From contractors? From insurers? Or all responses from anyone about the process (once this has been clarified as above)

  • 7. How it was determined the costs did not sufficiently reflect the ‘open market’,
  • a. which ‘open’ market and
    b. the data relating to this

The statement in your question ‘costs did not sufficiently reflect the ‘open market’’ is not Highways England’s position. As stated on the Third Party Claims page https://highwaysengland.co.uk/thirdpartyclaims/ Highways England explained that it is ‘suspending the use of the Schedule while we assess our options for a different set of repair costs that better reflect the open market and the needs of insurers’, not that the costs did not sufficiently reflect the open market. Therefore we do not understand the question as it has been asked. Please clarify this question and what information you are requesting.

In addition to the above clarification request we have estimated that the cost of compiling your request will exceed £450 or 18 hours work. Section 12 of the Act does not oblige us to comply with requests if they exceed this limit.

  • 9. Your engagement with contractors following implementing NSORC; all information to and from, to this date. This will include all information to and from contractors setting out the suspension of NSORC; notification, feedback, implications How it affects them, their charging and claims), actions and intentions

The above question is too general in manner. In order to help us respond to this request please can you name what contractors you are interested in, please consider when naming the contractors that there are 12 other questions in your request and the number of contractors named is likely to influence the time it takes to answer this question and may lead to further reduction in scope requests or eventual refusal on cost grounds. We also will only be able to consider providing one quarters (3 months) worth of correspondence. Please can you indicate which 3 months you wish us to do the search for correspondence on.

Please note that if I do not receive appropriate clarification or reduction in scope of your information requirements within three months from the date of this e-mail, then I will consider your request closed.

If you wish to discuss any of the above, please contact me. Please remember to quote reference number FOI 100507 in any future communications.

Kind Regards


30/11/2019 to To: FOIAdvice@highwaysengland.co.uk

Thank you for your email of 29/11/2019 in response to which I provide the clarification (below), with regard to the questions, other than 4, 7 & 9 which you have queried,

4. Questions raised by all parties (within and without HE) about the process and the responses

I am referring to the process as was described here until at or about 31/10/2019:

Third party claims

I am referring to the implementation, use of and subsequent termination (suspension) of NSoRC i.e. the correspondence (in any form) generated by the process from conversations, letters, meetings etc.:

a) commence it, have contractors agree (or otherwise – it may have been forced upon some), the questions arising and explanations provided. These exchanges will include those relating to the costs to be used and agreement/acceptance of them. The exchanges with interested parties such as the Association of British Insurers and their members of representatives (lawyers, adjusters etc.).

b) this will include any changes in the contract required, particularly where Appendix A to Annex 23 applies i.e. a contractually agreed formula for ensuring a Third Party was charged ‘no more than’ and the Authority was charged using the same base rates, price list, schedule of defined costs (DCP Rates).

c) the guidelines, policy correspondence, advice etc. issued to contractors, their legal representatives, HE staff, to include Green Claims about the implementation and application i.e. all information pre-commencement to ensure the process was understood and applied evenly, correctly.

d) the questions/statements raised following the implementation from any party, such as the ABI, loss adjusters, insurers, contractors, their legal representatives. I was informed these were being collated and the questions addressed via your web site. This has yet to occur.

e) The questions/statements/ correspondence relating to the suspension i.e. the issuance of a ‘stop’ notice to contractors, Green Claims etc. explaining the suspension of a process prepared over months, engaged for 4 months and terminated.

I do not anticipate this will cause HE any difficulty to provide; the NSoRC was addressed by a specific team and information was being collated, to be presented.

With regard to:

7. How it was determined the costs did not sufficiently reflect the ‘open market’,

a. which ‘open’ market and
b. the data relating to this

The statement in my question ‘costs did not sufficiently reflect the ‘open market’’ is the position conveyed to me by Highways England. Indeed, the link to which you referred me, the Third Party Claims page https://highwaysengland.co.uk/thirdpartyclaims/, states:

We are therefore suspending the use of the Schedule while we assess our options for a different set of repair costs that better reflect the open market and the needs of insurers

You are looking to adopt a set of repair costs that better reflect the open market. I therefore repeat:

a. which ‘open’ market are you referring to in your statement – it is HE who has used the term, please define this.
b. the data relating to this; what is being considered, what was considered

HE made straightforward statements when presenting their NSoRC process. I have also spoken with those involved for well in excess of an hour. HE have written with regard to NSoRC:

In pricing repair costs this way, Highways England is giving the insurance industry the benefit of the rates that it has been able to secure in a competitive market.

I wish to understand the change from ‘competitive’ market to ‘open’ market

My clarification at ‘7’ above will / should address the stated ‘needs of insurers’ aspect.

The following statement appears to be engaging semantics:

As stated on Highways England explained that it is ‘suspending the use of the Schedule while we assess our options for a different set of repair costs that better reflect the open market and the needs of insurers’, not that the costs did not sufficiently reflect the open market.

I invite your explanation

You cite section 12 but do not explain whether this relates to specific questions, nor do you indicate how my request could be condensed or adjusted such that it would fall within the scope. Kindly do so.

The information being held by the NSoRC team, I fail to understand how the request could possibly exceed such a limit.

With regard to:

9. Your engagement with contractors following implementing NSORC; all information to and from, to this date. This will include all information to and from contractors setting out the suspension of NSORC; notification, feedback, implications How it affects them, their charging and claims), actions and intentions

I do not accept the above is too generic. I am seeking all information to and from contractors about NSoRC after the process commenced. This is however addressed by my response at ‘7’ above i.e. duplicated and can be ignored.

The contractors involved are those party to NSoRC, those who it affected and therefore you engaged with.. This question appears obtuse but my understanding is NSoRC applied to all Areas (regardless of whether they operate under Asset Delivery or Asset Support Contracts).  The only exceptions will be Area 5 which is a 30-year concession, and other DBFO roads where Green Claims will be pursued as per their current contracts.

I am not asking you to approach the contractors but to provide the records you hold; the approaches, responses and agreements reached that subsequently enabled NSoRC to be launched.

Why are you only able to consider providing one quarters (3 months) worth of correspondence?
Are you referring to calendar months, or final year quarters
When did you first approach a contractor about NSoRC and how?

The above will influence my response though I would ask you to reconsider the s12 exemption which appears to inappropriate, onerous.

I am concerned you acknowledged this request 11/11/2019 yet seemingly have delayed raising questions for over 2 weeks. When responding to the above, please explain what enquiries have been undertaken to locate the information which give rise to a belief the cost exemption may be engaged.

I await responses to the remaining on or before 04/12/2019.


03/12/2019 From: FOI Advice <FOIAdvice@highwaysengland.co.uk>
Sent: 03 December 2019 15:48
Subject: RE: NSORC pilot outcome

Dear Mr Swift,

Thank you for your e-mail on 30 November 2019.

We are currently reviewing your clarifications, we currently believe that there may be a need for further clarification or reduction in scope but we will assess further and if there is further need for this we will do this as soon as possible.

With regard to your query about why we are applying section 12 please see the following explanation but please note that a section 12 exemption applies to the whole request. In this case we were trying reduce the scope of a couple of your broader questions in the request to try and help to put it into the range of being answered in a reasonable timeframe namely 18 hours work.

  • The information being held by the NSoRC team, I fail to understand hoe the request could possibly exceed such a limit.

A public authority is allowed to charge time to the following –
• determining whether the information is held;
• locating the information, or a document containing it;
• retrieving the information, or a document containing it; and
• extracting the information from a document containing it.

  • I would ask you to reconsider the s12 exemption which appears to inappropriate, onerous.

We are not obliged to spend more than 18 hours on a request under section 12. The request for reduction in scope is not onerous and is intended to assist you in narrowing your request so that we can provide the information sought. However, if we cannot reduce this request so that it will take less than 18 hours to compile the information then we will need to apply the s12 exemption to refuse the request.

  • I am concerned you acknowledged this request 11/11/2019 yet seemingly have delayed raising questions for over 2 weeks. When responding to the above, please explain what enquiries have bene undertaken to locate the information which give rise to a belief the cost exemption may be engaged.

It has been sent to the right team – NSoRC as it related to NSoRC. However, as the request is for information not in the knowledge of a single person a meeting was held to try to work out what information was required from the various parts of the business and external contractors. Information has been requested on a number of elements. However, on the areas that are considered too wide to carry out searches we have requested clarification and a reduction in scope.

To put this into context on time, a face to face meeting to discuss what information was held and where, in relation to this whole request, was attended by 3 people one NSoRC specialist, a member of the FOI team and a member of general councel. This meeting took approximately 1.5 hrs which is 4.5 hours of the 18 hours used already. You have also requested

  • Examples in Areas 9, 10 &12 of ‘The contractual arrangements between Highways England and its service providers, containing separate regimes for claims above and below a £10,000 threshold, and different pricing methodologies, leading to varying labour and equipment rates and therefore significantly different repair costs being applied to similar repairs’

the Area teams have been approached for this information and as there are 3 areas this will take at least another 3 hours of time. Therefore in order to determine what information is held and to get information for 1 of your 13 questions has taken up 7.5hrs of the 18 hours that is considered reasonable.

Please note that as we have sought clarification and to avoid double handling or confusion we will be responding to the request in one response. Following your clarification the 20 working day deadline is re-set and therefore our current due date to respond 30 December 2019.

We will be in contact in due course regarding the other points raised in you 30 November e-mail but I wanted to explain the Section 12 and timescale process prior to that to ensure the Highways England’s position was understood.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://highwaysengland.co.uk


03/12/2019 From: Philip Swift
To: FOI Advice <FOIAdvice@highwaysengland.co.uk>
Subject: RE: NSORC pilot outcome

Dear Jonathon,

I am appreciative of a prompt response, as opposed to an 11th hour one. But, sincerely, I do not understand the issue. This is not some archaic project, gathering dust being long forgotten or discarded. It is ‘fresh’, active.

NSoRC commenced on a date to be advised, at some stage you made a decision and commenced the project. This was addressed by:

Martyn Gannicott FCInstCES FRICS
Director of Commercial Services
Commercial & Procurement
Tel: 0300 470 8101 Mobile: 

Laura Crouch PA to Martyn Gannicott
Highways England | The Cube |199 Wharfside Street | Birmingham | B1 1RN
Tel: 0300 470 3515 Mobile: 

I am seeking the information sought, collated and used to present the schedule. The above narrows the scope, at least I see no reason why it would not.

It follows most, if not all of what I require to include prestation / feedback form your contractors will be held centrally, if not because Martyn was addressing it then because it is being reviewed.

• Please explain what part of my request would not be in the locations described, or possibly with Tim Reardon i.e. why you are encountering difficulty.

the information is held;
locating the information can surely not be a problem – see above
retrieving the information – it is ‘fresh’ all relatively recent – if you cannot locate it then there is a problem.
extracting the information – it terms of records, this will be related to redacting personal information .

I am not asking for people’s brains to be picked. I am seeking physical, tangible information. Why is this scattered?

There is a process, there will be information relating to its creation, intentions, application:

• There will be liaison with contractors – you need their rates and buy-in
• There will be the data considered, how this was considered
• There are claims that were reviewed – a lot of data, about 100 claims (source – Martyn)
• Then there will be the toing and froing, explaining to contractors / Green claims the application
• Ultimately there will be the implementation and tweaks then
• Sadly, the demise and communication to contractors, green claims, management etc

You have identified the right team – NSoRC as it related to NSoRC.

The meeting appears excessive, unnecessary certainly in terms of the numbers described and for the process. I am not seeking Area team information – I am seeking the NSoRC information. Please advise the date of the meeting and ensure I am provided all notes from same – this I expect to receive within 20 workings days.

‘Examples in Areas 9, 10 &12 of ‘The contractual arrangements between Highways England and its service providers, containing separate regimes for claims above and below a £10,000 threshold, and different pricing methodologies, leading to varying labour and equipment rates and therefore significantly different repair costs being applied to similar repairs’ is addressed in the above and is intended to ensure you understand the extent of the information.

Some Areas have Appendix A to Annex 23, some have schedules of DCP Rates they use. HE has some how managed to change the pricing methodology / rates with contractors which requires agreement. Surely these agreements are to hand given their importance. I appreciate the process may have been forced upon some contractors.

I anticipated receiving the information by or before the end of this week. You now intend to delay to 30/12/2019. If I do not receive the information by the end of next week, I shall place to WDTK for the alert system, the issue is becoming unnecessarily complicated.


03/12/2019 From: Philip Swift
To: ‘FOI Advice’ <FOIAdvice@highwaysengland.co.uk>; ‘Jonathan.Drysdale@highwaysengland.co.uk’ <Jonathan.Drysdale@highwaysengland.co.uk>
Subject: RE: NSORC pilot outcome

Jonathon, could you also address:

Why are you only able to consider providing one quarters (3 months) worth of correspondence?

Are you referring to calendar months, or final year quarters?

The process only ran 4 months.

Philip

10/01/2020 to HE 
To: FOI Advice <FOIAdvice@highwaysengland.co.uk>; Jonathan Drysdale @ highwaysengland.co.uk
Subject: RE: NSORC pilot outcome

Chased an update 

28/054/2020 to HE
To: ‘FOI Advice’ FOIAdvice@highwaysengland.co.uk Jonathan Drysdale @highwaysengland.co.uk 
Subject: RE: NSORC pilot outcome

Dear Sirs

I have patiently waited for the information in respect of which you sought clarification.

You seriously in breach of the law – once again.

I am seeking an internal review.