04/06/2019 FoIA Review Area 10 Rates

769,305 / 769305 ICO ref: FS50856241

Clarification / Assitance to Highways England regarding FoIA request ‘190222 FoI ‘The Schedule of Damage to Crown Property Rates – Area 10‘:

05/06/2019 to Highways England:

Dear FOI Advice,

To assist you to locate the information and to and convey the existence of a schedule of rates, the following relates to an analysis of Area 10 VRMs (vehicle registration marks). Included are:

1. the VRM
2. the date of the VRM association with an incident
3. the charge rates on the specific date

Highways England has stated that it ‘does not hold Schedules of DCP rates. Each incident is treated on its own merits in line with the relevant contract. The reasonable repair costs are built up from Defined Costs using the Schedule of Cost Components (as defined in the contract) plus fees and third-party overheads, where appropriate. In other words effectively, the actual cost of undertaking the individual third party repair work.’

This suggests a build upon a case by case basis, using costs specific to a day, possibly week or month.

In respect of this request history, the following has been stated by Highways England:

‘Defined Costs – The term ‘Defined Cost’ refers to a definition in the contract, the contract does not contain a schedule of Defined Costs. The Defined Cost is calculated in accordance with the definition. This is based on actual costs incurred by the supplier and there is not pre-set schedule of defined cost, or other schedule that is used.’ 15/04/2019 above https://www.whatdotheyknow.com/request/t…

The rates below for various vehicles evidence the existence of a schedule of rates. BBMM are clearly charging by use of a schedule, a pre-set schedule, a set of defined (fixed) costs.

More succinctly put ‘For the most part, repair costs are built up on a case by case basis using defined or reasonable costs, plus third party overheads or a fee where appropriate’.

It stands to reason, each incident, repair and in turn claim, being unique, costs are built up on a case by case basis. However, to date, in the absence of a schedule of rates, you have failed to explain the source of the specific charges being used. It is apparent these are held by your contractor as they are used regularly (see below) for in excess of a year. Furthermore, it is difficult to imagine how this information was not ‘held on behalf of’ or ‘for ‘ Highways England given it is the very schedule of rates the contractor is using to bill you and in turn, your are seeking to recover from Third Parties.

If you are unable to find the rates, they can be obtained from your contractor.

The rates below are all for Area 10, BBMM and over threshold (£10k) i.e. billed to Highways England.

You will note that whilst many months apart, the rates in EVERY case are identical.

11/01/2018 £3.78
31/01/2018 £3.78
01/11/2018 £15.01
17/12/2018 £15.01
26/02/2017 £10.51
17/10/2018 £10.51
29/01/2017 £16.41
07/12/2018 £16.41
21/10/2017 £15.01
08/12/2018 £15.01
26/12/2017 £26.76
20/12/2018 £26.76
16/05/2017 £26.76
23/12/2018 £26.76
16/01/2017 £3.78
27/03/2017 £3.78
15/12/2017 £3.78
16/11/2018 £3.78
07/06/2017 £3.78
16/10/2017 £3.78
05/07/2017 £3.78
22/09/2018 £3.78
20/01/2017 £3.78
19/12/2018 £3.78
12/09/2018 £19.47
23/12/2018 £19.47
30/01/2017 £19.06
31/10/2018 £19.06
08/06/2018 £15.01
20/10/2018 £15.01
10/04/2018 £26.76
11/04/2018 £26.76
16/02/2017 £16.41
10/10/2017 £16.41
23/01/2018 £19.47
03/04/2018 £19.47
28/11/2017 £26.76
09/01/2018 £26.76
19/12/2017 £26.76
08/11/2018 £26.76
21/03/2017 £15.01
19/04/2018 £15.01
27/06/2017 £15.01
05/07/2018 £15.01
10/04/2018 £15.01
22/11/2018 £15.01
16/06/2017 £7.95
06/07/2017 £7.95
11/01/2017 £7.95
15/10/2017 £7.95
13/11/2017 £15.01
06/03/2018 £15.01
04/11/2017 £15.01
21/12/2018 £15.01

A further means by which to obtain the rates would be to approach Mr Ellis (see 07/05/2019 email at this request page on WDTK https://www.whatdotheyknow.com/request/t…

Mr Ellis has unequivocally been cited as explaining the existence of a set of rates to Judge Godsmark*. For more, see: https://www.englandhighways.co.uk/sin-sai… . However, Mr Ellis also stated the rates were subsidized by the monthly lump payment BBMM received from Highways England. Your 15/04/2019 entry (in the history of this request on WDTK) contradicts this. https://www.whatdotheyknow.com/request/t…

* I understand you are seeking a copy of Judge Godsmark’s judgement, C08YP765 Highways England vs. Mr Hughes Hearing dates: 15th February 2018 and trust I will be provided the copy you are supplied and an explanation for the contradictions i.e. all information relating to the concerns raised.

07/06/2019 from Highways England

I do acknowledge that you asked similar questions in your request for
internal review/clarification e-mail on 25 April, however I approached
these with respect questions that you asked in your original request in
February 2019 and the answers that you received in response to these
questions and this what my internal review response was based around. I
have now come to the realisation that I should have treated your original
request for an internal review on 16 April 2019 as such and that your
follow-up on the 25 April, whilst related to and using the same
WhatDoTheyKnow e-mail address, should have logged as a new request and
allocated to the relevant department/team at Highways England to address
away from the review. This was down to an error/confusion on my part and I
ask that you please accept my apologies for this.

As stated above we are now treating the e-mails that you sent on 4 and 5
June 2019, which are similar/provided in addition to those received on 25
April, as a new request and they have been allocated to the relevant team
for a response. I appreciate that in your 4 June e-mail at Q5 that you ask
for a response ASAP, however to avoid further confusion as to what has
been answered at what point in relation to these e-mails, I ask that you
please wait for a complete response to all of the questions raised i.e.
the final FOI response in which this question will be addressed.

The due date for issuing a response is 2^nd July 2019.

03/07/2019 – no response from Highways England, internal review request.

08/07/2019 – no response.  Request update

09/07/2019 – from Highways England:

Please accept my apologies that you have not yet received a response to your request. We will follow this up with the relevant team to ensure that you receive a response as soon as possible.

19/07/2019 From: ico.org.uk
Case Reference Number FS50856241

Freedom of Information Act 2000
Your information request to Highways England

I write concerning your complaint about the failure by Highways England to respond to the following information request:

“Dear FOI Advice,

with regard to the point, your responses (copied below):

1. Please provide all information held by your contractor. You have not supplied the information held by BBMM.

Please provide this information along with a copy of your request and their response

2. The Judgement to which I referred you was provided by your contractor. It is the document upon which BBMM have been and are relying. It appears BBMM could be approached for the information (and see ‘1’ above).

Why has this not occurred?
When will it occur?

3. An issue relating to Area rates is subject to appeal. This request stands on its own

Were it not, I feel sure you would have cited duplicity or repetition to exempt a reply. The request differs from others in that it deals with a set of rates stated to a Judge to exist and for above threshold only.

Please explain your stance given, as advised, your contractor states the rates exist. As at ‘2’ above:

have you approached your contractor for the information?
Please provide a copy of the approach and their reply

4. There is and must be more to add. A definition is one thing, the ‘numbers’ are another. You have specifically referred to ‘costs’ and it must surely be obvious that having agreed a definition, to output a charge, to apply the definition, there must be numbers. It appears Highways England are being deliberately obtuse in their hackneyed referral to the Defined Cost ‘definition’. I am aware of the definition, which provides a meaning, I am seeking the applied figures. The act of defining should make something definite, distinct, or clear. Your response appears intended to obfuscate and do anything but make matters transparent.

Please explain the reference to ‘costs’ and how the definition is applied.
Contractors have been invoicing using the methodology since 2012, at the commencement of any contract the compilation of a rate charged was clearly based on something; what?

This is clarified, progressed in point 5:

5. Please explain the calculation, form where the figures are obtained and how the output (sum) is arrived at.

If you are refusing to do so, as appears to be the case, please confirm asap.

I note you are awaiting the Judgement. This needs to be considered in relation to the following:

it unequivocally identifies the existence of above threshold rates, a schedule of costs. This flies in the face of your ‘no schedule’ reply
It states these are subsidized by the monthly lump sum. However a recent FoIA response states there is no such subsidy.

The Judge was informed of the subsidy seemingly to stop the schedule being used for comparison purposes.

A simple means by which to address the issue would be to take it up with Mr Ellis who I suspect has been TUPED over on or about 01/04/2019; he may well be in your employ. Mr Ellis has also withheld the rates from us i.e. they exist, he will just not hand them over.

Mr Ellis is referred to in the draft Judgement which can be found here https://www.englandhighways.co.uk/15-02-2…

Statement, in support of the existence of rates can be found here https://www.englandhighways.co.uk/sin-sai…

Yours sincerely,
Mr P Swift”

We note you also wrote to Highways England again on 5 June 2019 clarifying your request for information.

I have contacted the Highways England and asked it to respond to your request within 10 working days. If it fails to do this, a decision notice will be issued requiring it to respond to your request.

If I do not hear from you again, I will proceed on the basis that you are prepared to withdraw this case.

Thank you for your co-operation in this matter.



Additional & Supportive Information

Area 10 DCP Rates Unaffected by Lump-Sum Payment

17/12/2018 Area 10 BBMM Claims & CECA Rates

05/02/2019 To BBMM re CECA and Rates to Third Parties