DCP Rates – Withholding Non-Existent Information

2013 to 07/2018 saw 175 Freedom of information Act requests & reviews for DCP (damage to Crown property) Rate related information rebuffed by Highways England who used the ‘commercially sensitive’ exemption.  For those who persevered, their requests were labelled ‘vexatious’.  118 of the requests / reviews were undertaken by other than the writer.  Then …

11/2018, Patrick Carney of Highways England (HE) removes the barrier to rate-release, telling a Tribunal ‘DCP Rates are NOT commercially sensitive’.

However, subsequent requests have been met with the response ‘not held‘ … ‘do not exist‘ followed by Highways England’s more recent (08/04/2019) implausible confession that after years (since 2012?) they  have just noted this lack of transparency, an absence of rates!  1,000’s of invoices presented to and paid by the Public Authority and Third Parties were incapable of being reconciled with a pricing schedule as … it is claimed there is none!  The various responses can be read here.


This does not ring true, appears absurd even without the further evidence we possess that such rates exist.

In respect of a 2017 request, the matter progressed to the ICO.  01/04/2019 the ‘not held’ response was presented to the ICO who accepted ‘on the balance of probabilities’ there is no such schedule of DCP Rates and 04/2019 issued a Decision Notice (DN) supporting the Authority’s stance.  However, in response to an appeal, the ICO appears less than comfortable with their decision writing in their ‘brief response & joinder‘:

19 b. ‘If indeed the Appellant’s request sought DCP rates as opposed to ASC contract definitions it would appear that HE’s response that such information does not exist is incorrect, as in a previous DN*, it was ruled that DCP rates do in fact exist but they are commercially sensitive’

A further statement by the ICO in the same DN (Decision Notice), addresses any doubt about what was asked for:

 ‘It is clear from the Appellant’s Grounds that he is seeking DCP related information.’ 

As it is clear the request was for DCP information, in accordance with the ICO’s statement (above), HE’s response appears incorrect i.e. DCP Rates do exist.  Furthermore, DCP Rates are not commercially sensitive.  So why is Highways England seeking to keep the rates secret?   Possible reasons stemming from the information uncovered to date are:

  • The rates charged by contractors, appearing upon 1,000’s of invoices since 2012 are exaggerated, misrepresented, excessive.  Highway England failed to protect the public they should have been serving and enabled, possibly permitted, them to be fleeced.  £millions is owed to Third Parties.
  • A contractor is uplifting charges inappropriately claiming the monies is paid to operatives whereas it is not.
  • The rates charged appear to be linked to the monthly lump-sum a contractor is paid.  But the contractor has been misrepresenting its charges to Highways England, reporting losses whereas in fact, they have profited. More about this can be found here.
  • Highways England’s witnesses are misrepresenting facts to the Courts

*The previous DN cited above that saw DCP Rates withheld is FS50684021  and more about this can be found here.

However, DCP Rates were again sought 12/2019, specifically for Areas 9 and 10.  The request was one of the first refused by use of ‘do not held’.  This matter is currently with the ICO and the history appears here.  Para 19 from the ICO’s statement (above) is pertinent:

19 b. ‘If indeed the Appellant’s request sought DCP rates as opposed to ASC contract definitions it would appear that HE’s response that such information does not exist is incorrect, as in a previous DN*, it was ruled that DCP rates do in fact exist but they are commercially sensitive’

The previous DN is just one of many in which the Authority cited ‘commercial sensitivity’.  Clearly there are 175 other requests or reviews where this will feature … it appears the ‘does not exist’ response is incorrect.

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