For the second time this month, I find myself writing out of exasperation about the conduct of Highways England and the ICO.  This time, the issue is a more philanthropic; not directly related to claim costs but the public purse – the carelessness Highways England exhibits toward public funds, taxpayer’s money.


The issue relates to the existence of a pain/gain share, something that I remain surprised we (the Authority and I) are arguing over the existence of.  Firstly, I would not know of the pain/gain share’s existence had it not been for an Authority disclosure and secondly, a Tribunal 12/11/20219 heard evidence from a Highways England witness that this existed, the Tribunal Judges recording in their judgement at para 15 about DCP (damage to Crown property) rates:

‘From the oral evidence, the Tribunal ascertained that contractors, in this case Keir, when undertaking work under their contracts with HE would use the ASC rates (which were updated every year) to work out an estimate on a particular job, and then by reference to that, decide whether it fell above or below the £10K threshold.

If above, broadly speaking, Keir would pass its invoice to HE who would pay Keir, HE is picking up the responsibility for recovery of the costs from the driver or their insurer who incurred the DCP.

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 above appears straightforward;

  • damage is caused by an errant driver
  • attendance occurs followed by repair
  • ASC (confidential/secret) rates are used to determine the approximate cost
  • if over £10,000 the bill goes to Highways England
  • the bill is re-priced using charges ‘based on ASC rates’
  • the costs are subject to ‘pain/gain’

Yet when pressed for pain/gain share information, the Authority now responds ‘no such thing’.

I do however understand, as with DCP rate schedules, why the Authority wish to keep pain/gain information from me, why (as with rates) they disclose the existence of something but when it presents a serious issue they adopt the hard to disprove ‘not held, does not exist’ position. I have not made 57 requests for the pain-gain information, nor have I noted others making such requests; I have therefore not annotated 118 requests/reviews about pain/gain, there is not the evidence of the Authority’s 175 ‘held responses (associated with rates). However, a Tribunal and I have been informed the pain/gain threshold exists, is applied.

Yet now they state ‘no such thing’ and information relating to it too expensive to retrieve – though commonly this depends upon how helpful you want to be, how you undertake searches.

I object to being the victim of the Authority’s behaviour. On the one hand, they expect me to place faith in their conduct, to accept their held or ‘it exists’ responses (175 relating to rates!) yet when I do take them at their word and act upon their statements, they volt face stating their historical replies were incorrect.  Incredibly, they then turn upon me, tarnishing my acting in good faith with the ‘vexatious’, unreasonable brush. They do so with the aid of the ICO who seemingly could care less; only a requestor can be found to be vexatious and siding with the Authority presents another hurdle for a requestor to overcome, presents another barrier to a requestor and could well reduce the ICO’s workload.

At what stage does someone look at my request history and say “if Mr Swift is vexatious (which I deny), we made him that way?”

I apologise for linking ‘pain/gain share’ with rates (above) but I sincerely believe this is the heart of the issue;

• Highways England stated DCP rates were held (175 times according to their enquiries) and when they had to produce them, u-turned spectacularly, the rates do not exist

• Highways England stated a pain/gain share existed but, when they realised that such a process required the existence of rates and that they were receiving false claim information from their contractor, they u-turned

I remain very surprised no one at Highways England has reviewed the situation, asked ‘why are Kier Highways providing false information to us?’, figures that are obviously false because a Judge has been told (by the contractor/Authority’s own witness) Kier were applying unauthorised uplifts, at para. 36:

Furthermore, for the purposes of assessing the extent of Kier’s authority within Area 9 (Area 6/8) the court cannot ignore the evidence given on behalf of the claimant by Mr Cairns. In summary, on this issue his evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract.

The contractor, Kier highways Ltd., should provide cost and recovery figures to the Authority.  Kier was to supply the ‘defined costs’, their uplift and state the subsequent profit or loss.  Why did Highways England not realise the costs being presented were never ‘defined costs’ but ‘costs that included unauthorised uplifts’?  These exaggerated claims costs meant Kier could accept substantially less in settlement and still be in profit … but convey a loss to the Authority.

It was not just drivers, fleets, hauliers and their insurers who were being duped, fleeced, the public purse was also suffering. But a simple question remains outstanding, a query possibly the Authority knows the answer to, hence no need to pose it; whatever the reason, ‘why is Kier providing false information?‘.

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