Highways England Do Not Care

On 27/02/2016, a contractor was blunt about our approaches to Highways England (HE) for information:

“The only way to box some of this off and I’ve said this to you about other things before, is to speak to people at the same time, because you go to Highways England, like Highways England know exactly how our operation operates. Well they don’t. They don’t. They don’t care.”

But were Highways England telling the truth; do they receive and hold information about sub-threshold claims?  We believe they do; 22/03/2017, Highways England in response to an FoIA request provided Annex 19 of the ASC (contract) and this sets out what a contractor is to provide- click here for more information.

With regard to claims retained and pursued by contractors, those which are usually below £10,000, Highways England have stated that their contractors:

“… can do what they like with their own claims,
that’s absolutely nothing to do with us”

HE have also advised:

  • “Highways England does not have oversight of, or involvement in, claims which are the sole responsibility of the contractor” 10/12/2015
  • “Our contractors are solely responsible for sub-threshold Green Claims, this is set out in the contracts entered into with Highways England (and predecessors). Any information relating to these claims is therefore not held on behalf of Highways England.”  06/11/2015 HE Chief Information Officer
  • “As I have explained on many occasions information relating to sub threshold claims is not held on behalf of Highways England (refer to my emails of the 19th and 22nd October). The information you are seeking is therefore not collected by our contractors for the purposes of FOI.” 04/11/2015 HE FoIA Officer
  • “Our contractors are subject to FOI and must provide information on information collected on our behalf. As our contract states below threshold green claims are the sole responsibility of the contractors this information is not collected on behalf of Highways England therefore it is not subject to FOI.” 04/11/2015 HE FoIA Officer

This appears to be a very different situation to that reported in a 2014/15 review that evaluated whether a Service Provider had appropriate processes in place to ensure that the public and the Agency (now Highways England), where costs are borne directly, are being charged appropriately.

From: FOI Advice [mailto:FOIAdvice@highwaysengland.co.uk]
Sent: 20 May 2015 14:51
To: Philip Swift
Subject: RE: Your ref: FOI 153 09 My Ref: A03A001/L502415/pbs

Dear Mr Swift,

I refer to your response of the 5th May. Apologies for the delay in responding, as I am no expert in the Green Claims process I have been gathering some information from my colleagues in order to satisfy some of your queries.

The term fishing comes from ICO guidance, I apologise for any accusation you have inferred.

I accept that you are not aware what records may or may not be collected by Highways England. I will set out below my reasoning and hopefully you will understand more about our records (and more specifically, the lack of records) and forego the need for any further requests which may necessarily be refused.

Our previous responses have confirmed that information relating to sub £10k claims is not routinely held. We may hold some information but, as the collection of this information is sporadic, any information is spread throughout our records. Each area of our network keep separate records relating to the management of that section of the network, there is no central filing for information relating to sub £10k green claims.

Green Claims are part of a wide variety of over 25 functions undertaken by our contractors which are audited. Due to the scale of work undertaken by our contractors these audits are undertaken at a high level to make sure that the contract is working effectively. It is therefore not unreasonable to assume that audits of green claims might be few and far between.

I can confirm that our contractors are supervised. We specify in our contracts that contractors have accepted the risk and responsibility of undertaking sub £10k green claims. The claims are self-regulating in that the latest ASC contracts are very strict in what contractors may claim for. We will also periodically test their pricing to ensure that the appropriate party (Highways England or the Contractor) is handling the correct claims. Annual reports provided by contractors, as part of the self-certification process, will contain details of repair costs, amounts claimed from third parties and amounts recovered. The claims are also self-regulating in that the contractors must present detailed evidence to the insurers when making a claim.

You acknowledge the fact that Highways England does not routinely collect this information however you state that you are surprised that you were not provided with the information you were expecting.

I can therefore restate that Highways England does not engage in the direct audits of individual sub £10k green claims and a systematic series of audits relating to below £10k green claims is not held and cannot be provided to you. Forensic audits of this kind would only be triggered if there was a specific performance concern/failure. 

The information collected and provided by my colleagues in Area 3 was all information that could be found to broadly fit the parameters of your request. That you were not provided with the information you were anticipating is confirmation that this information is not held by Highways England.

As my colleagues provided what information they felt fit the bounds of the request. Any further “non-routinely” collected information would be both time consuming to locate and, likely to be even more tenuously connected to your originally stated aims.

This again leads back to the ICO guidance in that a public authority can utilise the section 14(1) exemption in circumstances where a request will:

Impose a burden by obliging the authority to sift through a substantial volume of information to isolate and extract the relevant details;

 Encompass information which is only of limited value because of the wide scope of the request.

I believe that any further requests for this information will lead to my colleagues incurring the above conditions. I stand by my use of the exemption in section 14(1) of the Act.

I also restate my belief that this material is commercially sensitive. Any of the information which is collected by Highways England including the broad audits described above and annual reports provided by contractors, as part of the self-certification process, will contain details of repair costs, amounts claimed from third parties and amounts recovered.

The management of this type of commercial activity could have a significant impact on the contractor’s commercial strategy for the commission. As several Area Support Contracts are to be awarded in the next 18 months it is important to keep the confidence of our suppliers. Revealing any details of this commercial activity will also prejudice their ability to negotiate with other third parties.

Again, I appreciate there is a wider public interest in demonstrating that out contractors are behaving appropriately, I hope that by listing the processes undertaken by our contractors above you will be satisfied that this is the case. In this regard I reiterate the public interest considerations stated in my previous letter to you.

I’m afraid I don’t follow your argument relating to internal write offs or charges between the contractor and Highways England. I have not mentioned this in my response and, from what I can tell; you have not referenced this in a previous request.

Further guidance relating to the exemption in section 14(1) states a public authority can refuse requests where the requester attempts to revisit an old issue or refuses to accept the point of view of the public authority. I hope that by clearly stating our position on our records, above, we can remove the necessity for you to ask for this information in any further requests.

Regarding your further request of the 14th April; I appreciate that the request was on a different subject matter. I included the refusal notice in the response instead of sending two separate emails. I appreciate you are experiencing frustration with our complaints process but this remains outside my control. I must request that you follow the process outlined by my colleagues.

Similarly, if you disagree with the way that Highways England undertakes the supervision of its contracts (or any other issue relating to the conduct of recovering costs as mentioned in your previous letter) it would be more appropriate to raise this concern through a formal complaint rather than a Freedom of Information request. 

If, having read the above, you still wish to submit a request for an internal review into the handling of your Freedom of Information request (rather than the lack of records), please let me know and I will instruct my colleagues to begin the proceedings.

Yours sincerely

Chris Barnes, Freedom of Information Officer
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT

Web: http://www.highways.gov.uk

Extract from a Highways England email:

From: FOI Advice [mailto:FOIAdvice@highwaysengland.co.uk]
Sent: 19 October 2015 13:37
To: Philip Swift <pswift@cmaclaims.co.uk>
Subject: RE: complaints

By way of a response, Highways England has explained on several occasions that our contractors have sole responsibility for Green Claims with a value of less than £10,000 (or less than £25,000 for Areas 4 and 12). As such, Highways England has no visibility or oversight of these claims, nor do our contractors have a responsibility to report on ongoing claims. Highways England, therefore, has no basis to become involved in claims entered into between CMA and contractors. Nor can Highways England compel a contractor to respond to correspondence outside of our jurisdiction. 

Please be advised that the above constitutes a formal response from Highways England to your query.

I am sorry that Highways England can be of no further assistance in this matter.

Chris Barnes, Freedom of Information Officer
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT

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