Sub-Threshold Information

It appears that as part of the conduct to keep Third Parties from information which would reveal Highways England are aware contractors are not complying with agreements but over-charging Third Parties and making excessive lump-sum payments, the Authority are prepared to mislead those for whom they work … the public.

During 2015 and 2016, being concerned about the charges contractors such as Kier Highway were presenting Third Parties (drivers, fleets and insurers) we made Freedom of Information Act requests to Highways England seeking data about sub-threshold (below £10,000) claims.

Highways England relied that they hold no information about claims their contractors handle (those below £10,000).  However, since these replies, their contractor has contradicted the responses and the contract data uncovered also undermines the replies.

Extracts from some 2015 Highways England responses to requests for sub-threshold data are  as follows:

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.
I see no grounds for appeal.
Chris Barnes, Freedom of Information Officer
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT

and:

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.

As this information is not held for FOI we cannot compel our contractors to provide it. Highways England, therefore, has not intervened in this matter.

It appears, Mr Swift, that you do not accept my arguments and you are attempting to re-open an old issue. These are indicators that a request is vexatious. I am loath to quote section 14 of the Act but may be forced to do so if this conversation continues.

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

and:

“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.”

Tony Malone | Chief Information Officer (Exec Director responsible for FoI requests )
Highways England | Bridge House | Walnut Tree Close | Guildford | GU1 4GA

But the above appears false as, according to the contract and their contractor the information is provided regularly, contractually required and relates to every claim.


– CONTRACTOR CONTRADICTIONS –


By early 20017, matters were proceeding to Court and Kier Highways claims manager made a statement of truth:

24. In terms of the operatives’ time-sheets every month every person completes such time-sheet which we have to then send to Highways England

25. The details are then collated and allocated to the individual incidents although that is done retrospectively but where we have been able to obtain the worksheets for the individuals involved here we have done so and they are enclosed with this statement.

The statement can be read by clicking here, with a further example here (see paragraphs 25 & 26).  According to Kier, information is regularly sent to Highways England on EVERY claim.

In support of information relating to these claims being held, contradicting Highways England’s Chief Information Officer (above), Kier’s claims manager was forthcoming to a Judge explaining the existence of the electronic record, the Judge asking:

THE DISTRICT JUDGE: Is the electronic log exhibited?

A. No, it is not provided as part of the standard documentation that we went through when we redid the full amount of these packs with some insurers like Aviva and Admiral who specified what sheets they wanted as part of it and we were not asked for it as an extra piece of information, although we are always happy to provide it.

But the record is not provided by Kier Highways or Highways England.


At a Court hearing there was cross-examination, questions (‘Q’) and answers (‘A’) from Kier:

Q. All right. I am a bit confused. Do the people on the ground fill in both paper and
electronic logs?
A. They don’t fill in the electronic; they phone somebody to fill in electronic logs.
Q. All right.
A. Which is a contractual thing, yes.
Q. All right. Therefore, it did make its way to the electronic logs.
A. Yes, as part of our reporting to Highways England, yes.

What doubt can there exist that information is sent to, received by, Highways England on sub-threshold claims?


The witness further explained:

A. … Well, every single employee we have does complete an electronic timesheet because as part of our work with Highways England there is a transactional summary provided every month.

The time sheet was explained:

Any staff does an electronic timesheet broken down by what is called an annex 5 code which is contractual codes, different types of activities


– CONTRACT CONTRADICTIONS –


23/03/2017, an FoIA request was made:

What information do your contractors send you each month about under threshold claim incidents.

In response , Highways England provided an extract from the ASC (contract) – Annex 19 which sets out the information Kier Highways Ltd is to send Highways England; information relating to claims.

If Kier are complying with the contract, Highways England is receiving a great deal of information about every claim.  The FoIA response can be found here – FOI 748 674 (1) the content states:

For our asset support contracts (ASC), the ASC Service Information Annex 23 sets out the contractual obligations on the Provider with regard to information provision. The pertinent clauses in the Service Information annexes for this contract are Clauses. 23.3 and 23.4. I attach a copy of the Area 9 ASC, Annex 23 for ease of reference.

Below is an extract of the Conditions of Contract, Clause 43 (again, taken from the ASC for Area 9) which states:

The Provider keeps detailed records relating to the Area Network, the Traffic Technology Systems (Midlands) and the Services (including performance levels in the Area Network and the Traffic Technology Systems (Midlands), the Defined Cost of Providing the Services and records relating to Subcontractors) in the format and containing the details and for the period specified in the Service Information. The Provider makes the records available to the Employer and his representatives (including the Service Manager) on request.

The report received is as required by Annex 19:

28 Third Party Claims handled by the Provider Service Information Chapter 1.9 & Annex 23 Report detailing, for each claim, the amount claimed from third parties,
a calculation of Defined Cost and resulting Third Party Claims Overhead, the amount recovered,
an explanation of any differences between any of these amounts, and
explanation of why any loss greater than Defined Cost has been claimed
As
required
by the
Employer

Annex 19 reports are usually required on a quarterly basis.

By reference to the above, Kier are to submit, on EVERY claim:

  1. the amount claimed from third parties,
  2. a calculation of Defined Cost and resulting Third Party Claims Overhead,
  3. the amount recovered,
  4. an explanation of any differences between any of these amounts, and
  5. explanation of why any loss greater than Defined Cost has been claimed.

Th process is simple, a Third Party is to be charged NO MORE THAN:

Defined Cost (£) + Third Party Claims Overhead (%)

A defined costs is a base rate and both Kier and Highways England tell us it is the same figure, a constant, whether the bill is submitted to Highway England or a Third Party. The Third Party Claims Overhead is a percentage; about 7.38% to Highways England, about 20.58% to Third Parties.

As Kier are not complying with the Appendix A to Annex 23 contractual process, are not using ‘defined costs’ and applying the ‘TP Claims Overhead’ (or a combination of the two), on EVERY sub-threshold claim, Kier should be submitting a report to Highways England displaying:

  • the amount recovered
  • an explanation of any differences between any of these amounts, and
  • explanation of why any loss greater than Defined Cost has been claimed.

We have not been provided one of these reports.

Kier were, from 07/2014 to 10/2015, using their 1153 process and since 10/2015 have used a ‘cost breakdown document’ process which sees charges significantly higher than the Appendix A process sets out – for the effect on charges to Third Parties see – Appendix A examples –  an operative that would be charged at £27.41 / hour if the process was applied, was billed to Third Parties at £70.32 / hour and this could increase to £105+ / hour if they attended an incident after 5pm of a weekday.  Highways England would be billed £22.73 / hour for the same person.

Highways England should therefore be very aware Kier are not acting in accordance with the process (Appendix A to Annex 23), that Kier were recovering substantially more than defined cost + TP claims overhead and in turn Kier should be explaining why.

But  with regard to the FoIA requests and Highways England claiming to hold no sub-threshold data, according to the contract and the contractor, substantial sub-threshold claim data is submitted regularly.

  • On the one hand Highway England state they do not receive information from their contractor, on the other their contractor states they send information.
  • Who is telling the truth and why is there a contradiction?

Annex 23 to the contract states:

23.4 Green Claims where the claim is the responsibility of the Provider –
Action by Provider
23.4.1 The Provider issues a letter of intent to claim to the responsible third party
(or their insurers).
23.4.2 The Provider conducts such further correspondence with the third party (or
his insurers) in pursuit of the claim as is required.
23.4.3 When requested by the responsible third party (or their insurers as the case
may be) or instructed by the Service Manager, the Provider provides the
responsible third party (or their insurers as the case may be) with a
calculation of Third Party Claims Defined Costs and resulting Third Party
Claims Overhead.*
23.4.4 The Provider does not seek to claim more than the amount calculated in
accordance with the principles set out in Appendix A to this Annex.
23.4.5 The Provider keeps records and submits statements in accordance with
clauses 87.4 and 87.5 of the conditions of contract.

But the provider (Kier) claims more than the amounts calculated in accordance with Appendix A to Annex 23, has done so since 07/2014 and Highways England are aware of this.

*Kier cannot provide this calculation – they do not comply with the process.


The need to supply information to Highways England also appears within the Area 9 ASC Conditions of Contract Contract Rev 0 – specifically, at section 87.4:

The Provider keeps detailed records relating to the Third Party Claims Defined
Cost in accordance with clause 43. No later than 4 weeks after the end of each
Contract Year and each successive period of 12 months following the final
Contract Year, but finally after the earlier of

 the third successive period of 12 months following the final Contract Year
and
 the successive period of 12 months in which all claims made under clause
87.2 have been resolved and all recoveries paid in respect of those claims,
the Provider submits a statement to the Service Manager showing
 the total amount recovered in that year from third parties in respect of
claims made against them under clause 87.2 and
 the amount, if any, by which that amount exceeds the total of
 the final Third Party Claims Defined Cost for the repair or replacement
work relating to those claims and
 the resulting Third Party Claims Overhead

It appears the amount claimed and received from Third Parties must be conveyed to Highways England. We understand this has a bearing upon the lump-sum payment the contractor receives.

  • As Kier Highways are not charging Third Parties in accordance with the contract but much higher figures, it would seem their recovery must always exceed the TP ‘defined cost’ and ‘claims overhead’. However,
  • we understand no contractor has ever reported exceeding the amounts and in turn, none has had their lump sum payment reduced.

– THE EFFECT ON THE PUBLIC PURSE –


Whilst, at first, it may appear only Third Parties (drivers, fleets and insurers) are penalized as a result of Highway England’s failure to ensure Kier Highways complies with the contact, it seems the public purse is also suffering.

A contractor is paid a lump-sum each month by the Public Authority for ‘a multitude of activities’ but the sum they receive is affected by the recoveries the contractor makes.

  • For Highways England to ascertain how much the contractor is receiving form Third Parties and in turn whether this should affect the lump-sum payment, it follows the public Authority MUST receive detailed information about EVERY claim.

Yet Highways England have repeatedly denied this is the case.

  • If Highways England are not receiving the information, how are they safeguarding the public purse and ensuring the lump-sum payment is correct, not excessive?
  • If Highways England are receiving the information, why are they stating otherwise and making false FoIA responses?

At Court, Kier’s claims manager stated to the judge, with regard to the lump-sum payments that Highways England ‘go through all the actuals to make sure that you aren’t getting paid too much for it or over recovering through a combination. So they would look at the Revenue receipt from the under thresholds and the over thresholds, and make sure that you’re not, effectively, making more that you’ve spent out, because you can assess your costs overall, okay.’

Once again, it is being said by a party to the contract, the ‘provider’ that they send sub-threshold data to Highways England.

  • Just what are Kier sending Highways England

Kier are making more than they have spent out on their under-threshold claims, they are charging substantially more than the defined costs (£) and charging a Third Party Claims Overhead (%) – that neither Kier nor Highways England have evidenced as correct at 20.58%.  It therefore appears the lump-sum payment should have reduced but we understand this has not occurred.

Whilst it is possible Kier were misrepresenting facts to Highway England since 07/2014 when the process commenced, we have raised the issues with Highways England and in 06/2017 met with them and conveyed the anomalies.  To date (08/2018) no action has been taken to our knowledge and the process continues.

It appears that, by failing to act upon the information they receive, Highways England are enabling the public purse to be abused. It would seem Highways England are less concerned about what their contractors charge and more concerned to ensure that their failure to monitor this and not acting upon the information is kept from others.  In the meantime, Third Parties not charged in accordance with the contract by Kier but by use of higher rates AND Kier is receiving substantial lump-sum payments from the Public Authority.


– AN FOIA RESPONSE ON SUB-THRESHOLD CLAIMS –


An FoIA reply reveals Highways England do hold sub-threshold information, such as the VRM (vehicle registration marks) associated with contractor plant:

In 04/2017 an FoIA request was made of Highways England asking for Vehicle Registration Mark data. The Act allows 20 working days for Highway England to provide a response.  After 5 months the information was not forthcoming and in 09/2017 the request was placed on the WhatDoTheyKnow web site seeking a ‘review’.  After a further month, Highways England had still not responded and a reply requested.  No information had been received in February 2018 and the matter was referred to the ICO (Information Commissioner).

In 03/2018, 11 months after the request, information was provided:

Our Ref: 756307
I refer to your request for an internal review where you asked for the following information:

I am informed your contractors Kier Highways Ltd submit records to Highways England regularly about their attendance at DCP incidents.  For the period 01/01/2015 to 01/04/2015, I ask to be provided all information held relating to incidents which the following VRM’s were associated:

WR14FNA
WP14XHZ

Highways England provided information in relation to WR14FNA and WP14XHZ. That is to say they DO hold information about sub-threshold claims furthermore, this information is held in a format such that it can be searched, retrieved and provided.

The importance of this should not be underestimated and is explained here:- VRM Data Held by Highways England

With regard to information relating to KN15RKA & KY15RKA for the period 01/08/2015 to 01/01/2016, Highways England held no data – possibly unsurprising as these vehicles, charged to Third Parties, are unlikely to have been involved – the VRMs are believed to be false i.e. not associated with  a Kier owned vehicle but charged for by Kier when claiming from Highways England and / or a Third Party!