Defined Costs … a Myth
In a ‘Statement of Truth‘ Highways England explained that between 2013 and 07/2018, they received 175 FoIA requests & reviews for ‘rate related’ information. Of these, 118 were from others. Highways England knows precisely what I have been seeking, explaining (n the statement) the majority relate to a specific issue or related issues, namely the rates that contractors charge third parties for the costs of repairing damage to highways resulting from accidents/negligence under Asset Support Contract i.e. DCP (Damage to Crown Property) rates.
There has been no suggestion these rates did not exist – had that been the case it is reasonable to believe this would have been conveyed in response to the first request! Instead, Highways England kept their contractors DCP pricing schedules from the public, secret, by:
- citing ‘commercial sensitivity’:
- undertaking ‘public interest tests’
- seeking contractors opinions.
- refusing persistent requests by use of the ‘vexatious’ exemption of the FoIA
- convincing the ICO how the above exemptions were appropriate
- engaging Government Legal Department (GLD) when a decision was appealed
- Obtaining Counsel’s opinion
- 12/ 2018, seeking the support of a Tribunal and when this failed,
- appealing the finding …
- 2019, when the appeal was dismissed … Highways England continue to seek to have the matter reconsidered.
Most requests do not progress beyond ‘1’ or ‘2’ above. A few made it to the ICO and one matter commenced in 2017 is currently (05/2019) at ‘8’. This request, that has run the entire above process, is for … DCP Rates, defined costs. Highways England and the ICO considered the approach (seemingly one of the 175) vexatious i.e. annoying, irritating, irksome, exasperating. A Tribunal Judge disagreed.
- But who, of those making the requests, ICO, Tribunal, GLD or Counsel have been informed they are arguing over nothing?
Who is the vexatious party; those making requests who have been told that the information will not be released and are given to believe it does, or Highways England for failing, when presented the first request, to say ‘no such information’? At what cost has this obstructive conduct come at to enquirers and the Authority, to the public purse? What a waste of everyone’s time! A Public Authority brings requests upon themselves then has the audacity to make accusations against those who pursue data which, by Highways England’s own admission, should be available.
So there are no rates against which Highways England can check a bill from their contractor pre-payment? There is no schedule of rates used by contractors to bill Third Parties (drivers, fleets, hauliers and insurers)? Why was this not the response to the first request any years ago? Possibly this latest response is untrue?
Why the change of stance …
2013 to 07/2018. 175 requests refused.
11/2018, another Tribunal found was informed by Highways England employee Patrick Carney, the rates are NOT commercially sensitive (11/2018). This came as a surprise as Patrick’s name was seen just a few months earlier conducting a public interest test that found the rates were commercially sensitive.
12/2018. The ‘commercially sensitive’ exemption having fallen away, we made another approach to the Public Authority for the rates. The reply … the rates do not exist, not held!
For 5 years Highways England have been arguing to protect and keep secret something which they now say does not exist! Just what have they been considering at 1 to 8 above?
Are the ICO, GLD, Counsel or Tribunals aware what they are considering … nothing?
Or is the change of approach, they ‘do not exist’ response, false?
Evidence that this latest response is just another means by which to keep the public from the rates can be found here:
- An example of the ‘commercially sensitive’ exemption being used – twice; 2016 & 2018 – supported by Patrick Carney (whose approach changes 6 months later -see above)
- Responses and information supporting the existence of a pricing schedule, the ‘defined costs’, ‘base rates’, ‘nominal rates’, ‘DCP Rates’, ‘notional rates’, ‘pricing schedule’ … call them what you will.
Why keep the rates secret? Possibly ….
- Drivers, fleets, hauliers and insurers would be able to ascertain what they should have been charged and understand they have been overcharged £millions
- 1,000’s will realize that the Public Authority whose role is to ‘serve them’ has actually thrown them to the wolves; enabled and permitted contractors to act other than in accordance with the contract and over-charge
- Highways England are concerned that they failed to monitor contractors appropriately (intentionally?) and having the issues fully documented to them in 2017, they are complicit, liable?
- Some aspects amount to the making of false statements of truth, misrepresentation to Judges and fraud
- They have failed to monitor contractor recoveries. If a contractor recovers in excess of a threshold sum their monthly lump-sum payments are reduced. Given the exaggeration occurring, how could a contractor not achieve this goal – yet the Authority says it has never occurred. Are contractors misrepresenting figures to Highways England?
- Highways England is seeking to agree rates with Insurers (in the hope of avoiding a scandal and brushing the matter under the carpet?) … by keeping prices to themselves it is likely easier to negotiate a higher set of figures for contractors
Take emergency incident attendance at 8pm of a weekday … an operative should cost less than £30 / hour … at present, some have charged over £100 / hour … and some insurers are paying this.
It is important to be aware that in some Areas, the base rates to Highways England and Third Parties (drivers, fleets, hauliers and insurers) are to be the same. It is the uplift that causes differences … a ‘fee’ to HE of abut 8%, a ‘TP Claims Overhead’* to Third Parties (generally no more than 25%)
If there is not pricing schedule, no set of agreed rates, how do Highways England ensure bills presented to them by contractors (about 5 / day) are correct?
*the name conveys its purpose – the uplift to be applied (to base rates) when the claim is pretested to a Third Party.
25/02/2019 – FoIA request for an explanation of the contradiction
04/2016 – What increases in charges have been agreed year on year? ‘In accordance with the contracts, the prices are adjusted by the contract price adjustment for inflation on an annual basis.’; so not claim by claim changes to rates but an annual adjustment.