150916 FoIA Request for New Green Claims Manual

16/09/2015 @ 12:00
To: ‘Highways England FOI Advice
Subject: RE: Your Ref: Z1516318/AXT/A5 Our Ref: S08B687/WV

Please provide:

• The date the HA GREEN CLAIMS PROCEDURES MANUAL ceased to be used
• A copy of the current HE GREEN CLAIMS PROCEDURES MANUAL and
• Whatever replaced the HE GREEN CLAIMS PROCEDURES MANUAL i.e. all training / information or similar information

If no manual (or similar information) is available, please advise why this is the situation and all correspondence relating to the consideration of removing a manual and not supplying such instruction. My understanding, from an email received form HE today, is that the original manual was intended to help new team members get up to speed with how you work. I am assuming in the absence of the manual (above) there exists a replacement that serves the function.

The above should be considered a Freedom of Information Act request and I ask to be provided your FoIA reference.

14/10/2015 from: Tim Peffers @ highwaysengland.co.uk
Subject: RE: Your Ref: Z1516318/AXT/A5 Our Ref: S08B687/WV

Please find you response to your recent FOI request attached.

14/10/2015 @ 16:57
To: Peffers, Tim
Subject: RE: Your Ref: Z1516318/AXT/A5 Our Ref: S08B687/WV

Dear Mr Reardon,

Re: FoIA request 16/09/2015 for Green Claims Procedures Manual

Thank you for your email of 07/10/2015, received today.

I am seeking an internal review of my request.

I do not accept that there is a public test to consider in respect of ‘commercial interests’. To enable me to correctly, comprehensively, document my challenge to your decision, please provided a detailed explanation in support of your decision.

Briefly and not exclusively, I cite the following in support of my position:

1. The former version of the manual which was used until a couple of years ago, was released to me without issue in 2012 following my exchange with the then Chief Executive of the Highways Agency, now Highways England (HE). There was no consideration given to ‘public interest test’ or similar.
2. The release has proved invaluable to me and to HE alike as it has meant we are ‘singing from the same hymn sheet’; I know what you require and can cater to this.
3. Unnecessary Court costs and claims handling time has been avoid by our understanding the process and either presenting the required facts or capitulating and moving o settlement.
4. The processes involved in the manual should be relatively straightforward and comply with UK legislation – much like the former manual
5. If the current manual describes inappropriate or unfair terms / conditions these need to be explored and practices changed
6. The process used by HE I will become familiar with over time; I handle many such claims and rather than be provided the HE stance piecemeal it makes sense for me to be aware of the approach sooner rather than later so that I can tailor my submission to HE.
7. The information I provide is being extended to the public who, unlike insurers, adjusters and HE have only one such matter to consider and need greater hand-holding. The manual will assist explaining processes to them – something that will be perceived as bias if presented by HE.
8. Disclosure will have no effect upon a correctly represented claim; the facts are the facts and will not be altered by a manual.
9. There is a concern that HE are seeking to prejudice the position of innocent motorists and insurers by keeping a process secret and preventing an open-hands policy
10. Adherence to the process is unlikely to be monitored and any observing cannot be discerned by ‘outsiders’
11. The manual represents your ‘rules’ for instigating a claim and engaging with us – why would HE wish to keep those rules from us?
12. Criticism of HE is avoided

I also question your reference to ‘negotiation’. Most HE letters indicate that there is no negotiation. We generally have issues with quantum or liability and the latter is an either-or approach and both sides are assisted by an exchange of ‘rules’ i.e. the manual.

Similarly, my ‘manual’ is known to HE; I use standard templates seeking specific data and wish to be able to restrict these to relevant questions to save time and effort on both sides.

I am very surprised to learn of the replacement. On 16/09/2015 I emailed a member of HE staff who handles Green Claims asking whether the claims procedure manual had been re-written and the response was ‘not to my knowledge’.

In hindsight it is possibly beneficial that I have written under this reference your claim Z1516318/AXT/A5. The claim was for over £10,000 and would have progressed to Court had we not, painstakingly, approached HE and in a teeth-pulling process slowly got to what was required of the innocent motorist who was being persecuted unnecessarily.

• I ask that the file is reviewed in light of your decision with regard to my FoIA request

We were subjected to an unreasonably aggressive and intransigent approach. The diver, already suffering from the distress, inconvenience and financial hardship of a fire on the motorway was then accused of negligence.

Trying to illicit what HE required to satisfy themselves that the driver was ‘innocent’ nearly proved impossible. Had it not been for our perseverance, for our headstrong behaviour and reluctance to be bullied, the driver would have faced a Court before likely having he case dismissed.

Whilst we asked what HE required, effectively pleased to understand, the reply was:

As I said in my email of 4 September I am not going to try to resolve this matter in correspondence. We are too far apart for that.

If you will not nominate solicitors to accept service I will ask the insurers to do so; and if they do not I will have to serve Mr Jones personally with the proceedings and he will no doubt call on the insurers to defend the claim – and the insurers will then necessarily pass the matter to their solicitors. I would rather not trouble Mr Jones at this stage but if I must, I must.

I again call upon you to nominate solicitors without delay. If I have not previously heard from you I will approach the insurers directly on Monday 28 September.

The Green Claim procedure manual which you quote is not now in use and has not been for a considerable time.

We did not and do not believe further action on our part was necessary or the HE stance reasonable. The insured had negated the allegation of negligence to an extent that previous matters had been written off by HE.

We carried on regardless and obtained yet further information in support of the insured following which, HE abandoned the claim. This behaviour should be considered in relation to the intransigence conveyed above.

I subsequently wrote to the claims handler, a lawyer, afterward suggesting a process for future matters to avoid such situations but received a dismissive reply:

I think this is a matter to be discussed, if at all, with the insurance industry through its collective bodies rather than with any one claims adjuster, however experienced!

Clearly your lawyer felt it reasonable for the issue to be raised but apparently not with us!

It is the above matter that caused me to request the manual, the new version. I was working to the old one. I am very concerned the new one potential supports the behaviour encountered (above).

The concern from the unwillingness to be open about the manual to have a default position of withholding is that HE will be inappropriately aggressive or seek to demand monies where they would not usually be recoverable. We are concerned to ensure that the manual does not already define processes that are at odds with reasonableness.

12/11/2015 @16:18 from FOIAdvice@highwaysengland.co.uk 
Subject: RE: Your Ref: Z1516318/AXT/A5 Our Ref: S08B687. Response extract:

I am writing regarding your request for an internal review of our response to your Freedom of Information request dated 16th September 2015 relating to a ‘Green Claims Manual’. In that request you asked for:

• The date the HA GREEN CLAIMS PROCEDURES MANUAL ceased to be used
• A copy of the current HE GREEN CLAIMS PROCEDURES MANUAL and
• Whatever replaced the HE GREEN CLAIMS PROCEDURES MANUAL i.e. all training / information or similar information

Your request was refused citing the exemptions in section 43(2) of the Freedom of Information Act 2000 as disclosure would, or would be likely to, prejudice the commercial interests of the public authority.

As the Freedom of Information Officer for Highways England I have reviewed our response. My findings are as follows.

The exemption in Section 43(2) of the Freedom of Information Act 2000 allow a public authority to withhold information where a public authority can show that the prejudice claimed is real, actual or of substance; and show that there is a causal link between the disclosure and the prejudice claimed.

Highways England has explained in our responses that Green Claims are cost recovery. Highways England do not seek to make a profit from these claims. Any release which may prejudice our ability to sufficiently recover costs will lead to our commercial interests being prejudiced.

Any instance where Highways England is not able to fully recover costs will lead to public funds being used inappropriately to repair the network. My colleagues explained that the public interests lay in protecting the public purse and not laying the bill for these repairs with the tax payer.

I appreciate that there is a great need for transparency in dealings with public funds however I believe that Highways England is sufficiently transparent in these matters as our communications to insurance companies and loss adjusters do describe the information requested to disprove liability.

Yours sincerely

Chris Barnes
Freedom of Information Officer