Highways England vs. National Audit Office
11/2018, Patrick Carney of Highways England informed a tribunal DCP Rates are not commercially sensitive thereby scuppering Highways England’s ability to rely upon the FoIA’s ‘commercial interests’ exemption. For years the Authority had kept the rates secret. Those who pressed for the information were deemed ‘vexatious’. Highways England has stated (to a Tribunal) that between 2013 and 07/2018 they received 175 FoIA requests or reviews for rate-related information (118 from others).
However, since 11/2018, ‘post-Carney’, Highways England now claim their ASC (Asset Support Contract) does not contain a schedule of rates to charge drivers, fleets, hauliers and insurers (Third Parties). Even the ICO managed to get their head around the illogical stance being adopted by the Authority to DCP Rates writing:
- 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 Decision Notice, it was ruled that DCP rates do in fact exist but they are commercially sensitive;
Cut and dry; DCP Rates exist.
The approach to an FoIA request is straightforward; first see if the information exists and if so, address the request. Pre-Carney, we have found not one response to the stated 175 requests saying the requested DCP Rates ‘do not exist’.
- If Highways England does not possess the rates, how have they reconciled any invoice pre-payment? Is it really the case that for 5+ years they have rubber-stamped every contractor invoice over £10,000 for payment – £millions in payments had been made without the ability to ensure the contractor was using correct prices – because there were none!
- Furthermore, how could the Authority know whether a contractor was recovering more than the ‘defined costs’ (in the schedule) and therefore be liable to a reduction in their monthly lumpsum payment? 16/10/2016, Highways England had written:
This had become a more serious concern after we identified Kier Highways presenting exaggerated figures to Highways England – high prices (not defined costs) giving the impression Kier recovered less than the cost whereas, we believe if they conveyed ‘defined costs’ *the DCP Rates) these would demonstrate a profit. Why misrepresent other than to protect their monthly lumpsum payment and adversely affect the public purse?
16/04/2019, we wrote to the National Audit Office (NAO) explaining our concerns.
The NAO met with Ms Sharon Mccarthy, Highways England Director for Corporate Assurance only to be told … a schedule of rates IS included in the ASC.
A schedule of rates exists; it is nonsensical for contract after contract not to have an agreed list of costs, this is a fundamental requirement. Annual reconciliation of costs, audits, complaints, meeting with the Authority, raising the issue only for them to discover years later (after Patrick Carney removed the ‘commercial interest’ protection) there is no such thing! There is overwhelming evidence a schedule of rates exists.
The full responses from the NAO with Ms McCarthy’s accusation the NAO ‘misunderstood’ the response to a straightforward question ‘is there a set of rates?’, can be found here.