Defined Costs … a Myth

For 5 years, 170+ FoIA requests & reviews (according to the Authority), Highways England (HE) have kept their contractors pricing schedules for Damage to Crown Property (DCP) from the public, secret, by:

  1. citing ‘commercial sensitivity’:
    1. undertaking ‘public interest tests’
    2. seeking contractors opinions then …
  2. using the ‘vexatious exemption of the FoIA
  3. convincing the ICO how the above exemptions were appropriate
  4. engaging Government Legal Department (GLD) when a decision was appealed
  5. Obtaining Counsel’s opinion
  6. 12/ 2018, seeking the support of a Tribunal and when this failed,
  7. appealing the finding …
  8. 02/2019, when the appeal was dismissed … we shall see.

However, 11/2018, another Tribunal found was informed by HE employee Patrick Carney, the rates are NOT commercially sensitive (11/2018).  Another approach was made to the Public Authority for Area 9 & 10 rates.  The reply …

the rates do not exist, not held!

Really? 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’ … 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
  • 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

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