18/01/2021

England Highways

Damage to Crown Property [DCP] Claim Costs

201119 FoIA Appeal re. Jim, Tim & Nick’s ‘lot of effort’

19/11/2020 – An introudution for the information Tribuanl (GRC):


I have sought information about Jim O’Sullivan’s statement that the Authority was putting ‘a lot of effort’ into reconciling past charges to Third Parties. seemingly, addressing my request exceeds the cost limit.  The ICO has supported the Authority’s ‘costs’ stance, the Decision Notice (DN) can be read here

This is bizarre.  The 2016 ‘effort’ was non-existent.  Nothing changed, the 10/2015 process utilised by Kier continued until 06/2019 when the Authority instigated a process they began to compile in early 2019 shortly after I spoke with Jim O’Sullivan who realised they had an issue – a Tribunal had found against them, they would have to provide DCP (damage to Crown property) rates but did not wish to do so … what to do?

  • The answer: claim there were no such rates, feign astonishment that you had overlooked this in every contract since 2012 and set about creating rates to support your deception.

In 2015, we had put a stop to Kier Highways contract non-compliant ‘1153’ process that saw the starting cost for incident attendance exaggerated 5-fold (at least).  For reasons as yet unknown the Authority failed to identify Kier’s non-compliance with the contract from the off in Area 9 – 01/07/2014. 1,00’s of invoices were exaggerated, pursued in the Authority’s name.  The process to be adopted, Appendix A to Annex 23, was kept secret by Kier and the Authority.

It now appears there was never any intention to have Kier comply, that the contractor was permitted to bill drivers, fleets, hauliers or their insurers using an ‘as much as you can get away with’ approach, that the contractor acted outside their authority from the off and the Authority permitted this likely in the belief, sub-£ 10k, no one would notice, collate the information, progress a claim to Court and understand the intricacies.

In hindsight, increasing attendance costs from £125 in 2013 to £2700 in 2014 on 1,000’s of claims (HE were charged inflationary increases) must have made the books look impressive.  A year later they sold to Kier and became Kier Highways Ltd.

But by 10/2015, EM HIGHWAY SERVICES LIMITED as they were then, could no longer withstand the pressure. Neil Pendlebury-Green of Kier attempted to instigate a new process, an obviously flawed procedure and it was dropped almost immediately.  You have to smile; seeing an uplift on the plant of a weekend was unprofessional – as if a truck would expect to be paid (or cost) more of a weekend when it would otherwise … be out with the lads, at church?  who knows! 

But, having accompanied Sophie Granville to a meeting it was her subsequent CBD process that was adopted and represented exaggeration in another guise, containing elements of fraud and saw Kier Highways withdraw from presenting claims themselves instead, placing matters with Shakespeare Martineau solicitors in or about 03/2016. 

But there was a staggering difference in hourly rates.  The Authority would be billed about £23 for a Kier operative, drivers, fleets, hauliers or their insurers were being charged at mush as £140/hour.  Ms Granville had stated the base rate of an AIEW was £58.32/hour … really?  So Kier was running at a loss when billing the Authority, making up by fleecing Third Parties?

it should be remembered that at that time, no one (except the Authority and Kier) was aware there was a contractually agreed process by which a Third-party should be charged ‘no more than’ – Appendix A to Annex 23.  ‘Coincidentally’, the Authority did not place appendix A on-line with the contract and neither Kier nor spoke of it.

We raised the matter with the Authority and received the following email from Jim O’Sullivan, the Authority’s CEO, 21 November 2016 17:04:

Philip,
Thanks for your note. I also want to ensure that drivers only pay appropriately for the damage they do to Crown property. I’m sure the current process could be simpler and I know Tim and Nick will be working to achieve this. We are certainly putting a lot of effort into reconciling the past costs that you are talking about.
Regards
Jim

I understand Nick to be Nick Harris and Tim to be Tim Reardon and all their effort resulted in … nothing!  At that time and going forward for years:

  1. drivers were paying inappropriately – Kier was not complying with the contract but applying unauthorised uplifts (08/2020 judgement para 36)
  2. there was no mention of Appendix A to Annex 23, that the Authority had failed to make it public, available to the very people who needed it and Kierw as not complying with it
  3. multipliers charged for after 5pm working was fraudulent; Kier claimed they paid thsi to their 8am to 5pm workers, the operatives stated they worked shifts, received no uplift and even overtime was at a flat rate
  4. this ‘lot of effort’ failed to note the absence of a schedule of rates, of a price list (by whatever name) – because it was there
  5. no one noted that the base rates to HE were to be the same as those used to bill drivers

None of the above was noted – the very issues I raised, said to be the subject of ‘a lot of effort’, continued.  Or possibly all the above was known but, just as from the outset of the contract, Kier were being allowed to charge as they saw fit and could not be controlled by the Authority/  Having enabled and permitted this conduct, it is possible the Authority was/is so compromised as to be ineffective; the tail wags the dog.

Nothing changed.  Therefore, I expected little interaction.  Instead, this effort resulted in so much activity/ information that when asked to be provided with the result, Highways England cited section 12 (to part nine of the request),

“All information resulting from the ‘effort’ put into reconciling past costs as referred to by [named individual] in 2016, the processes, outcome and simplification that has resulted”

No reconciliation of costs, no simplification, nothing came of my approach.  

Providing the associated /resultant information from this ‘effort’ should have been simple and straightforward. Searches could be confined to a few individuals; Jim, Tim and Nick for the period late 2016 to early 2017and relate to the enquiries being made of the specific subject I was querying; the CEO’s engagement of 2 senior managers to look into the issues I had raised (issues that a Court had confirmed existed – overcharging using unauthorised uplifts).  But all Tim and Nick’s effort failed to identify or address the issues I placed under their nose, hand-held them to. 

If any effort was expended, it appears this was to ensure Kier’s conduct could continue. 

The searches are not as conveyed and it appears the ICO has become confused. But then again, it doe snot appear the ICO has given the issue much consideration and is keen to avoid raising queries that could highlight the absurd ‘section 12’ response.  The ICO writes:

37. The Commissioner’s view is that the request at part nine was not specific enough to enable HE to keep within the fees limit and respond fully. Whilst HE stated that it could not advise the complainant how the scope of the request could be reduced, both at the refusal and review stage, it did not provide any details as to why. Therefore, the Commissioner finds that HE breached section 16 but does not require HE to carry out any steps, as the explanation it provided to the Commissioner about the searches that would be required and that is contained in this decision notice, render any further advice and assistance unnecessary.

Really;  restricting the search to Nick, Tim and Jim, for the period in which they were expending a lot of effort, could not be restricted such that they could provide some information?

How about sending me Tim and Nick’s responses/report to the CEO following the effort they expended? Or does this pose serious problems: 

  • did the effort fail to note the absence of a schedule of rates, the subject of my concerns i.e. little was done (there is little information) and the Authority negligently or intentionally permitted Kier to continue with the profiteering/fraudulent ways? or
  • did the effort uncover the rates and the contact non-compliance/deceit processes of Kier, undertaking in the Authority’s name, conduct that presents the Authority with serious problems?

It appears the Authority is keen to withhold information and the ICO lacks commitment to the Act or me as a requestor to consider the issue professionally, logically.