01/2019 to 12/2019 Time Line

From 2018

2019 – Kier stops issuing TP invoices following damage/repairs – General Counsel’s statement here:

From: tim reardon @ highwaysengland.co.uk 
Sent: 27 March 2019 16:25
In Area 9, Kier have withheld bringing new DCP claims since January this year.  Those outstanding claims will be taken forward on the basis of the new schedule of repair costs

Why; who said what? See below – Kier is still issuing invoices and again fails to do as they have apparently agreed with HE. Does the Authority have any control over their contractors or lawyers?

10/01/2019DCP Rates a myth … shame no one was told this 5 years ago! But then, why would they be – the rates existed until Patrick Carney removed HE’s ‘commercially sensitive’  FoIA exemption AND a Tribunal did away with their ‘vexatious’ claim.  Exposed … the Authority now claims ‘not held’.

For 5 years they existed – 175 requests/reviews but were withheld (118 by others).  Now, just weeks after a HE manager says ‘NOT commercially sensitive‘ AND the Authority is told a request for rates is NOT vexatious, Highways England employees sing from the same hymn sheet; there is no schedule of rates – examples here.

From Neil.Cook @ highways England Cc: Kevin.Mullaney @ highways England
Subject: FoIA request – DCP Rates for Areas 9 and 10 CRS number: 768,020

Each incident is treated on its own merits in line with the relevant contract and costs are built up from Defined Costs using the Schedule of Cost Components plus fees and third-party overheads where appropriate. Defined costs for individual DCP work are provided as part of the claims cost pack.

As each incident is treated on its own merits Highways England do not use or possess a Schedule of Damage to Crown Property Rates in Asset Support Contracts.

Kevin Mullaney, Head of Green Claims, The Cube, Birmingham B11RN

This reply is reiterated by others and the responses can be found here.

So much for all the effort HE’s CEO referred to:

21/11/2016. I also want to ensure that drivers only pay appropriately for the damage they do to Crown property. I’m sure the current process could be simpler and I know Tim and Nick will be working to achieve this. We are certainly putting a lot of effort into reconciling the past costs that you are talking about.

No one noticed there was no schedule of rates?

Note: 09/2018 FoIA request made for information about Coclaim approach and above ‘lot of effort’.  Request deemed ‘vexatious’ by Dana Bourne of HE General Counsel Office

25/01/2019Appendix A to Annex 23 (referred to in an FoIA request) now appears online – click here

It appears failing to place the appendix that protects Third Parties, the brief document that is Appendix A and sets out an equation to be followed was ‘overlooked’

Unfortunately, the Procurement Officer who placed the contracts online omitted to upload Annex 23.


In six years, most of it under chief executive Haydn Mursell who found himself pushed out last week, Kier moved from a company with a £95m cash surplus, to one that owed £410m. So what went wrong?


31/01/2019 – HE reiterates the schedule of base rates for above-threshold works, the schedule also referred to as ‘defined costs’, ‘DCP Rates’ or notional rates’ does not exist. Really?  Just what was withheld as ‘commercially sensitive’, the subject of public interest tests, objected to by contractors and seeking them results in a ‘vexatious’ label being applied … why not just say, years ago, ‘they do not exist’?  Could it be because as of 21/11/2018, Mr Carney states they are not sensitive?

We do not hold this information. The term ‘Defined Cost’ refers to the definition in the contract as previously provided. The contract does not contain a schedule of Defined Costs. The Defined Cost for each incident is calculated in accordance with the definition. [The overhead is not applied according to a schedule of rates. The overhead is calculated in accordance with the definition, as previously provided.]

The full reply can be found here and 190131 FOI 768 504 (6) similar responses can be found here.

07/02/2019 – the response of 22/01/2019 (above) is subject to an Internal Review which upholds the ‘do not exist’ response – request history here. For 5 years HE have been telling us these rates were ‘commercially sensitive’, public interest tests supported the decisions, the contractor objected to their release and ultimately requests are deemed ‘vexatious – yes all along, the schedule of costs did not exist … or do they?

19/02/2019. The Area 9 investigation is not concluded?  This contradicts the CEO’s email of 21/09/2018 (above). A WDTK response states:

I have established that the information you requested is not held by Highways England as the review into our service provider contract for Area 9, is not complete

The full response can be read here: 190219 FOI response Jacob Smith 768 553 investigation

12/03/2019. £50M of new debt revealed in Kier accounting error. Kier has revised its end-of-year financial statement for 2018, declaring an additional £50M of debt that went unnoticed due to an “accounting error”. More here.

19/03/2019 Kier Group plc has announced the appointment of Andrew Davies as its chief executive from 15 April 2019.  Mr Davies had been drafted in to help save Carillion but the troubled firm became insolvent in January 2018 before he could take over. Before that he was chief executive officer of Wates Group Limited – the construction, developments and property services firm – from 2014 to 2018.  More here.

25/03/2019 to Jim O’Sullivan re exaggeration to include Area 10. Read more here.

27/03/2019 tim reardon @ highwaysengland.co.uk
Subject: FW: DCP Rates

As you note from your discussions with Jim, Highways England is working on a schedule of repair costs for typical instances of damage to the strategic road network, or DCP. This new schedule of costs, which we intend to publish on Highways England’s website in April this year, will be piloted in Areas 3, 7 and 9 with a view to national roll-out. The new schedule of costs makes no distinction between above threshold and below threshold claims. All future claims in those Areas will be taken forward on the basis of the new schedule.

In Area 9, Kier have withheld bringing new DCP claims since January this year. Those outstanding claims will be taken forward on the basis of the new schedule of repair costs.

Kier has not withheld bringing new claims.

Why has HE only just realised there is a problem with ASC’s, rates and a lack of transparency?  How did the numerous concerns we raised, the 2017 investigation and additional ‘effort’ HE was putting into the issue, fail to identify a lack of rates … for many years?

Could it be that as they start to take on all claims handling in-house, Highways England is concerned the rates will cause them disputes … that their 20% recovery is going to cause serious problems … particularly as incidents are on the increase – 5% up on last year?

08/04/2019 Highways England … unable to price a claim:

Following complaints from loss adjusters, Highways England commissioned an
independent investigation into the pricing in Area 9 of below threshold (i.e. below £10,000)
claims for damage to the strategic road network (sometimes referred to as Damage to
Crown Property (DCP) or Green Claims). The investigation revealed a lack of
transparency in the pricing of Green Claims in Area 9, citing the lack in the Asset Support
Contract of any schedule of rates (labour or materials) for third party repairs.

As none of the ASCs contain schedules of rates, and Highways England considers that
the lack of transparency applies equally to above threshold claims (i.e. those above
£10,000) claims as well as claims below threshold it was considered that a review
covering all areas was required.

Whilst the investigation into Area 9 in isolation was concluded it was widened into a root
and branch review to improve the end-to-end process for the recovery of Green Claims
generally. This review is ongoing and a final report has not been produced

16/04/2019complaint to NAO

30/04/2019 – a new process and set of rates was to have been unveiled by Highways England during 04/2019 …

  • where are the rates and
  • with which insurers did Highway England liaise to compile / agree the process
  • what did Highways England tell the participating insurers* about costs and
  • how do these rates accord with Appendix A to Annex 23 and
  • why not in Areas 6&8?

*are any involved?

16/05/2019 – National Audit Office contradict Highways England and state a schedule of rates is included (does exist) and this should be used as the basis for the calculation of costs for claims above and below the £10,000 threshold.  This contradicts 31/01/2019 statement by HE – above).

05/2019 – still no new process or schedule of rates but … see 24/06/2019 (below)

10/06/2019 – from:
Highways England response – Your complaint about Highways England staff – Reference 19104221

Thank you for your email of 10 June to our Chief Executive Jim O’Sullivan and Chairman Colin Matthews. Please accept this email as receipt of your complaint.

Our Chief Executive has asked for details of your complaint to be passed to the relevant business area for their investigation.

The maximum response time is 15 working days however, we will try to respond sooner.

Highways England High-Level Correspondence Team
National Traffic Operations Centre, Quinton Business Park, Birmingham, B32 1AF.

Note: 15 working days expired 01/07/2019 – no response received

    • chased 04/07/2019 – see below
    • chased 08/07/2019
    • chased 12/07/2019

07/2019 – Highways England innovative incident response vehicle geared up to reduce traffic delays – and costs?

Date Subject Relevance
10/06/2019 Higher Level Correspondence Team to respond in 15 days – but fail to do so. complaint
Highways England introduce a ‘national schedule of repair costs for network damage‘ (Green Claims) initial comment. Coincidentally, that same day … NSORC
AOne+ issue their new pricing model which sees increased costs to Third Parties – FoIA below (07/09/2019). Area 12
04/07/2019 an hour-long conversation with Tim Reardon re Introduction of a national schedule of repair costs for network damage (Green Claims) NSoRC
Highways England’s High-Level correspondence team fail to respond as stated (10/06/2019).  Chased reply with an overview of current concerns. complaint
07/09/2019 FoIA request to Highways England re AOne+ rates (24/06/2019).  History @ EnglandHighways Area 12
07/09/2019 Request complaints are passed to ICA complaint
18/09/2019 Seek update re complaints passed to ICA complaint
18/09/2019 Kier AIW Employment Terms & Conditions / Salary DCP Rates
20/09/2019 Kier chairman Phil Cox quits after £245m loss (Guardian) Kier News
 04/10/2019 Highways England are refused permission to appeal (again) and abandon their appeal – a 2017 request is NOT vexatious but the result of the Authority’s poor conduct. FoIA
 31/10/2019 NSoRC is a failure and is suspended – did Highways England even understand the problem NSoRC
11/12/2019 To Highways England re Exaggeration & Misrepresentation – Kier Highways / Areas 6, 8 & 9 Rates
 16/12/2019 Highways England’s Response to Areas 6, 8 & 9 Rates email
 28/12/2019 to Highways England re state enabled exaggeration and fraud