201005 there is a Pain Gain Share, no there is not, yes there is ….

05/10/2020 to Highways England re Freedom of information Act request FOI 100802

Dear Mr Drysdale,

Your ref: FOI 100802 & ICO Case reference IC-37934-M7T7

Whilst I thank you for your email of 02/10/2020 (below), please provide a qualified, corroborated, accurate reply to my request.

It is unfortunate your obviously inappropriate application of s14(2) required the ICO to become involved and reiterate what I understood; that your usage of the exemption was wrong. The ‘vexatious’ exclusion is a standard reaction to a number of my requests.

That you have now applied another exemption (section 12 – cost) to avoid providing the information, is noted and once again, this is becoming hackneyed.  Unfortunately, it appears an Authority cannot be deemed to be ‘vexatious’, that there is no deterrent for your conduct.

This request relates to ‘the subject of PAIN/GAIN and you state ‘Highways England ‘does not hold the information requested’. 

Really?  Please speak to your colleagues in an attempt to resolve the tangled web you have woven.  I note:

  1. Highways England colleagues are all in agreement regarding their
  2. high degree of certainty
  3. that the information requested isn’t held

Please explain:

  • to which ‘colleagues’ are you referring?

You may prefer not to convey names in which case, their positions would be appreciated i.e. Lawyer, Operations and Legislation Team, General Counsel’s Office, CEO, Green Claims etc.  Please see below.  I am surprised your colleagues are in agreement.

  • What is meant by a high degree of certainty?

Certainty is, to my mind, the state of being completely confident or having no doubt about something.  It appears there is some doubt – I am not surprised. Possibly you meant uncertainty?

  • The pain/gain share is held, is not held, is held, is not held … which is it? 

The following is within your knowledge or that of your colleagues regarding the pain/gain share:

1. DOES EXIST: in response to a FoIA request, FOI 743,153, Highways England raised the issue of the pain/gain share, volunteered that such an arrangement existed. It was not something I was aware of, seemingly not asked about, but made sense:

25/10/2016 FoIA response (161026 Draft FOI 743153 Final Response Pain Gain Recoveries) extract:

Incident response is paid for by Highways England as part of a fixed ‘Lump Sum’ payment to the service provider, on a monthly basis. However, under the ASC this payment is calculated based upon the predicted split of identified culprit claims so it is designed to cover the proportion of claims that are not traced to a specific driver. All contractors reconcile their costs annually against their recoveries. If the proportion of
traced incidents exceeds expectations an assessment would be made and the Lump Sum payment would be reduced. However, no contractor has ever been in the position where the proportion of traced claims exceeds these assessments and there are various factors for this. The main one being not all damage linked to a driver is reported by the driver.

  • if a contractor makes healthy recoveries, the Authority would share in the ‘profit’, more correctly, reduce the monthly lump sum payment to a contractor.
  • If the contractor suffered losses as a result of the agreement, they would seek to ‘top-up’ their shortfall from the Authority.

In late 2018, I discovered Kier Highways was providing Highway England false claim cost figures, they were overstating their claim expenses, conveying a loss. I suspected they were doing so to protect their monthly lump sum payment and presented the evidence to you. Rather than address the issue, the response was:

2. DOES NOT EXIST. 09/2019, Highways England u-turned; there was no pain/gain share.

20/09/2019, Highways England wrote:

‘The extract from Highways England Ref: FOI 743,153 is incorrect and as such should not have been sent to you.’

‘We apologies for the error in Highways England Ref: FOI 743,153 and any resultant misunderstanding of the how the ASC worked in this respect. We trust this clarifies this aspect.’

Whether or not there is a pain/gain share, you have not explained why Kier Highways were providing you with overstated sums other than to protect their monthly lump sum payment and/or prevent disclosure of their profiteering ways.  The example submitted to Highways England is here:  http://www.englandhighways.co.uk/false-information-supplied-to-highways-england/

In reality, Kier was profiting handsomely yet their lump sum payment was not reduced. 

  • Why was the public purse unaffected, prejudiced? 
  • Why was Kier Highways misleading you about costs/recoveries?

You then contradicted the ‘not held’ stance:

3. DOES EXIST.  2/11/2019, at Tribunal hearing, your witness explained the application of the pain/gain share to the Court without any prompting from me (the arrangement was not relevant to the issue). I refer you to the Tribunal’s judgement Appeal No: EA/2019/0119, which I understand you did not take issue with, sought no amendment to the Tribunal’s account insofar as they conveyed, with regard to DCP (damage to Crown property) matters:

The costs charged would be based on the ASC target rates but would then be subject to the ‘pain/gain’ adjustment process under the contract

The judgement can be found here: http://www.englandhighways.co.uk/191219-appeal-no-ea-2019-0119-decision/

05/02/2020, it should have come as no surprise to you that, on learning ‘from the horse’s mouth’ that there was a pain /gain share, I returned to the subject and sought the held information. 

04/03/2020 you responded:

We have looked at your request and have concluded that is repeating a request that has already been responded and provided to you in September 2019 under 100025. Therefore, we are refusing this request under Section 14(2) of the Freedom of Information Act 2000 as a repeated request.

Your 09/2019 response (mentioned above) and which can be found here http://www.englandhighways.co.uk/190920-foia-response-re-pain-gain-share/ included the statement:

In respect to schemes work New Engineering Contract (NEC) Option C Target Price with a pain/gain share is used by Highways England in ASC’s for most scheme work. This is not used for Green Claim repairs in the more recent Asset Support Contracts.  This was a direct result in previous Manging Agent Contracts of challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers. NEC Option E cost reimbursable (or Defined Cost plus Fee) approach is therefore used for DCP repair work.

I have also made an FoIA request for the above ‘challenge’ (01/10/2019) because I very much doubt insurers caused a change in process by you or your contractors, the removal of the pain/gain share. The request can be found here: https://www.whatdotheyknow.com/request/pain_gain_share_arrangement_dcp_2.  The matter is with the ICO as you provided no response and no internal review.

Neither Highways England nor your contractors have shown any regard for the concerns of insurers.  This is further evidenced by the failure of the NSoRC which, again, was blamed upon insurers and again the subject of a FoIA that has seen no information provided – https://www.whatdotheyknow.com/request/ir_request_re_exchanges_relating. This matter is with the ICO Case Reference: IC-39411-G7Q7,  as you (again) cited section12.

I suspect the NSoRC was abandoned because your contractor’s profiteering was restricted and they dictate policy to you.  As for pain/gain, this appears to have gone much the way of Appendix A (defined cost plus uplift); turned a blind eye to, not complied with. 

I noted your 09/2019 response to the request that followed ‘2’ above.  I was obviously sceptical of another Authority U-turn, another case of impropriety being discovered and Highways England changing their account.  Then, just 2 months later, at ‘3’ above, shortly after 09/2019, you changed your story again!   Evidence was given to the Court in respect of an ASC contract and DCP (damage to Crown property) activities (as opposed to schemes); there was a pain/gain arrangement.

02/2020, I returned to the subject, as a result of your evidence to a Tribunal and made this FoIA request. I suspect this posed a problem and hence the s14 response; an ill-conceived, inappropriate (as you now appear to accept) but commonly cited avoidance.

Having your excuse dismissed by the ICO, you have had a second bite at the cherry, section 12. However:

4. DOES NOT EXIST. 02/10/2020, you have reverted to the ‘not held’ exemption also.

In an attempt to keep this simple, please:

  • provide the pan/gain information to which you referred at the tribunal and at ‘1’
  • explain the contradictions and why I am subjected to responses that are obviously false (some must be, both cannot be correct)

Advice/Assistance

You state ‘there is no advice or assistance that could be provided that would enable the request to be reduced to an appropriate size so to come within the reasonable costs’.

I am surprised as ‘pain/gain share’ appears to be a naturally limiting phrase and the time period would also reduce the documents retuned i.e. a year would likely return a fifth of the responses for 5 years, limiting the responses to a specific contractor or Area would also be likely to reduce.  Therefore, I find it hard to accept there is no means to reduce the documents returned.  To use an extreme example, if I asked for Area 9 on 02/07/2014, I expect few documents would be returned.  I am obviously concerned by what appears to be a lack of assistance, the intention to withhold.

Yours,


See also – Contractor Charges, Recoveries & Lump-Sum Payments for DCP Works


Following discussions with the Information Commissioner’s Office (ICO) and
in light of the submissions we have made regarding the questions raised of
the ICO’s investigation, Highways England has concluded that it has
incorrectly applied Section 14(2) of the Freedom of Information Act 2000
to your request. The use of Section 14(2) in this case was used to
indicate as we have done with other requests on the subject of pain/gain
arrangements its application to third party claims, that Highways England
does not hold the information request, although I do acknowledge that the
example used in FOI 100802 (FOI 100025) does not explicitly state this.

Given this and because of our writing, issued today 2 October 2020, on
another of your complaints IC-45200-H4G7 also on this subject where we
have withdrawn the use of Section 1, we are now withdrawing the use of
Section 1 to this request and are instead refusing the request under
Section 12 of the Freedom of Information Act 2000 as it exceeds the
appropriate cost.

The reason it has been refused under Section 12 is due to the amount of
documents that are returned when undertaking keyword searches for
information on Pain/Gain share and the areas stated in your request,
namely 9 and 10. These searches returned such large volumes of documents
that the cost to review and check for relevance to the request would
exceed the appropriate cost. In addition because of the large number of
documents returned from the searches there is no advice or assistance that
could be provided that would enable the request to be reduced to an
appropriate size so to come within the reasonable costs. An example
demonstrating the number of documents returned is below which demonstrates
even narrowing to a single search term would mean an the cost of the
request would be exceeded.

Key word
Area/Contractor Gain share Gain Pain share Pain
Area 9 2787 38370 1970 12649
Area 10 5382 43907 1671 20543

Whilst Highways England colleagues are all in agreement regarding their
high degree of certainty that the information requested isn’t held, the
legislation requires absolute certainty in order to apply Section 1
information not held, which as indicated earlier and in our internal
review the Section 14(2) response was implying to this request. As such
because the large volume of documents that would have to be reviewed to
ensure that certainty would exceed the appropriate cost our response of
Section 14(2) repeated request, indicating information not held, is
subsequently withdrawn and replaced with Section 12 of the Freedom of
Information Act.

If you are not satisfied with the outcome of this review you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Kind Regards

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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