190222 FoI ‘The Schedule of Damage to Crown Property Rates – Area 10’

Continuity:

  • 22/02/2019 – FoI Request
  • 26/03/2019 – No response, request for Internal Review
  • 15/04/2019 – FoI reply. HE ref.769 305 / 769305
  • 16/04/2019 – Request Internal Review
  • 16/04/2019 – response to 26/03/2019 IR 769993 / 769993
  • 04/06/2019 – IR response 770 246 / 770246
  • 04/06/2019 – Response to Authority
  • 05/06/2019 – Assistance/clarification to the Authority
  • 07/06/2019 – Authority reply 770,722 / 770722 and assign a new request
  • 02/08/2019 – Authority respond to 770722 and provide judgement
  • 09/08/2019 – Request for Internal Review of 770722
  • 12/09/2019 – to the ICO as no response received

HE assigns a new request to part of the response:


Dear Highways England Company Limited,

1. I ask to be provided, for Area 10, since the inception of the contract in 2012, the above-threshold (£10,000) rates which you have most recently referred to as a ‘Pricing schedule’ and/or ‘schedule of costs components’ but which also have been referred by various employees as:

• DCP (‘damage to Crown property’) Rates
• Defined Costs
• Nominal Rates
• Base Rates

For sake of clarity, it is the schedule of agreed tariffs which are used by your contractors in order to present ‘above threshold’ claims to Highways England for settlement under the terms of their contractual appointment to undertake such repairs to the public highway.

If, with regard to the contract the above terms are not synonymous,

2. please explain the differences, with reference to exact calculations which lead from one descriptive term to another.

By way of background, In 11/2018, a HE employee stated that the ‘DCP’ rates, being those list of rates used to calculate claims as presented to HE for direct payment, were not commercially sensitive.

3. Please advise what rates for above-threshold claims are held and describe same.

4. Are rates for incidents where a recovery against a Third Party (driver, fleet or insurer) is identified in any way subsidized or reduced by the lump-sum payment BBMM receives?

a. If yes, what is that subsidy / reduction, how is this calculated and applied.

5. Are rates for Third Part or culprit -unidentified incidents in any way subsidised / reduced by the lump-sum payment BBMM receives?

a. If yes, what is the subsidy / reduction, how is this calculated and applied.

6. Is any aspect of emergency incident attendance or repair covered by the lump-sum payment and if so?

a. what aspects


Authority reference 770,722 / 770722

26/03/2019 – Please pass this on to the person who conducts Freedom of Information reviews


12/04/2019 – no internal review response but a reply to the FoI request CRS 769 305 FOI Respone (769305)


16/04/2019 – response to 26/03/2019 Internal review. 769,993 / 769993

I note you initially submitted this request on 22 February 2019 as such the response was due by 22 March 2019. I note the final response to this request was provided to you on 15 April 2019. This is outside of the statutory 20 working day deadline for which I apologise.


25/04/2019 – to Highways England ‘clarification’:

I asked to be provided, for Area 10, since the inception of the contract in 2012

the above-threshold (£10,000) rates which you have most recently referred to as a ‘Pricing schedule’ and/or ‘schedule of costs components’ but which also have been referred by various employees as:

o DCP (‘damage to Crown property’) Rates
o Defined Costs
o Nominal Rates
o Base Rates

I anticipate there existing a schedule of rates as these have bene consistently charged above threshold to you by your contractor. At the every least, your contractor holds a set of these rates

1. Please provide all information held by your contractor.

I asked in respect of ‘above threshold’ claims to Highways England for settlement under the terms of their contractual appointment to undertake such repairs to the public highway.

This question does not refer to a number of different sets of information. I have no interest in the Asset Support Contract (ASC) rates tendered during the procurement process. I have bene absolutely clear; I am seeking rates relating to DCP, not pre-planned works. Your (continued) reference to ASC Rates and that these rates have been confirmed by the First Tier Tribunal (EA/2018/0104) to be commercially sensitive and therefore under section 43 FOIA will not be disclosed, is unnecessary, hackneyed and appears intended to divert form the real issue; that you are withholding rates I am entitled to by distraction.

DCP (‘damage to Crown property’) Rates – the ASC contract contains a schedule that is used for DCP rates.

You state Highways England does not hold information in the form of a set of rates that is used for third party claims. I have not asked for this and again question your response.

The recent Information Commissioner’s Office decision may support your our decision to respond under section 1 FOIA that this information is not held. However, this is the subject to Tribunal appeal and is contradicted by your contractor who has:

• Withheld the rates from us, said they will not release the rates i.e. they exists
• Appointed lawyers who have also withheld the rates i.e. they exists
• Informed a Court the rates exist
• Advised the Court that the rates are subsidised by the lump sum they are paid each month. Confirmation of this can be found at:

180215 Derby County Court BBMM for Highways England

Whilst you state you do not hold Schedules of DCP rates, in name or function, we and a Judge have been advised otherwise. Indeed, your response to this FoIA has contradicted the subsidy these DCP Rates (the schedule of costs) is said to attract; on the one hand a Court is told the rates you are charged are subsidised by the lump sum payment, on the other you state they are not. I have attached your relevant responses at 3 to 6 inclusive below which should be considered in relation to the Summary Judgement (above) which was provided to me by your contractor in support of their claims.

2. Please explain the contradictions; provide all information in support of the statements being made by you and your contractor

The above Judgement was a claim pursued in the name of Highways England

I accept each incident is treated on its own merits. However, they are treated consistently with regard to pricing

3. Who holds the schedule; you, your contractor or another?

Whoever, please confirm they will be asked to provide a copy as clearly this information is held for your benefit, on your behalf, is pertinent to what you pay form the public purse and you require said schedule to determine the accuracy of invoices presented. It also appears you wish to possess the copy, expect to possess same

I have only asked about Area 10, the prevailing contract in that Area in line with the relevant contract.

You state:
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.

Obviously, the actual defined cost for incident response and repair work resulting from damage by third parties is calculated after the event depending on the work that needs doing. However, this is calculated in accordance with the defined cost definition (which you cite) which references

a) the schedule of costs components,
b) which specifies specific costs the contractor is allowed to include and
c) the cost of them.

4. I ask to be provided the above

It is noticeable recent responses from Highways England make no reference to ‘c’ above

Also, when responding, please:

5. Explain the calculation you believe is occurring

It is apparent you are of the impression ‘defined costs’ is a term, as opposed to a figure. I am asking to be provided the calculation behind the scenes, that results in the Sums you are (were) charged. I remind you, these are seen to be constant in claims presented to us i.e. they do not fluctuate from day to day.


17/05/2019 – HE responds to 16/04/2019 IR request 769993:

‘ … following receipt of your e-mail dated 25 April 2019 (attached) which was taken as a clarification of what you required reviewing a new 20 working day response date of 24 May 2019 was logged.We will therefore endeavour to provide the internal review response to you by 24 May 2019


29/05/2019 – to Highways England

Dear FOI Advice,

Please advise wen I can anticipate receiving the information sought.

The National Audit Office (NAO), your auditors, have clarified the situation with regard to ASC’s, such as Areas 9 and 10:

‘a schedule of rates is included, and this should be used as the basis for the calculation of costs for claims above and below the £10,000 threshold’

for more information, see:
https://www.englandhighways.co.uk/he-vs-n…


31/05/2019 -to Highways England

Please advise when I can anticipate receiving the information sought.


04/06/2019 – from Highways England, Internal review response.

Please accept my apologies for the delay in getting back to you. Please
find attached the internal review reference: 770,246 of your Freedom of
Information request reference 769,305.

Response here  – 190604 Internal Review 770 246 770246 – relevant text:

I looked at the points above, discussed them with colleagues from the team who handled the initial request and have taken the opportunity to address them below.

Point 1
As you have correctly indicated in your 25 April e-mail, the ICO decision notice supporting our use of Section 1 FOIA that the information is not held is subject to appeal. Therefore, whilst the appeal is ongoing, it would be inappropriate for Highways England to make any further comment on this matter including the ones made in our response to this Freedom of Information request.

Point 2
You have indicated that a court judgement contradicts Highways England’s position on DCP Rates however we are unable to make further comment on this without an original copy of the full judgement. We have requested this from the court. Once we have been received this and had chance to review it in completeness we will return to you with our comments.

Point 3
Again, relates to the ICO decision notice supporting our use of Section 1 FOIA which is subject to appeal. So, again, it would not be appropriate for Highways England to make any further comment on this matter.

Point 4
There is nothing to add to our 769,305 response on this point. You are in receipt of the Defined Cost definition, this is all the information held

Point 5
The Defined Cost is calculated in accordance with the terms defined in the relevant contract which in this case is the Area 10 contract.

Having reviewed the responses provided by my colleagues to the initial request and your subsequent submission on 25 April 2019 I have concluded that your request was handled correctly. I have found however and as indicated in Internal Review ref. 769,993 the response was provided outside of the statuary 20 working day period for which I apologise.

Again, as noted at point 2 above once we have received a copy of the full judgment from the court and reviewed it we will return to you with our comments.


04/06/2019 – response to Highways England:

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

Rates statement, in support of their existence, can be found here


05/06/2019Clarification/assistance provided to Highways England


07/06/2019 – response from Highways England – 770,722 / 770722

Thank you for your request for information about the schedule of damage to
crown property rates dated 4 and 5 June 2019 I am dealing with it under
the terms of the Freedom of Information Act 2000/Environmental Information
Regulations 2004.

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.

If you have any queries about this letter, please contact me. Please
remember to quote reference number 770,722 in any future communications.

Please note that the above does not affect your right to apply to the
Information Commissioner if you are not satisfied with IR 770,246


07/06/2019 to Highways England:

whist I do not understand the response:

‘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 am appreciate of your consideration and approach. Unless anything pertinent should arise to assist locating the information, I will remain silent. However, I shall not add to this request.


03/07/2019 – to Highways England Company Limited, request for Internal review

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited’s handling of my FOI request ‘The Schedule of Damage to Crown Property Rates – Area 10’.

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

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t…


08/07/2019 – chase response from the Authority

Dear Mr Dysdale,
You wrote,
The due date for issuing a response is 2^nd July 2019.
If you have any queries about this letter, please contact me. Please
remember to quote reference number 770,722 in any future communications.
I have yet to receive the information. Please provide an update.
Yours faithfully,
Mr P Swift


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.

Yours Sincerely

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD


02/08/2019Authority response to FoI ref: 770722.

Rsponse – 190802 response 770722

County Court Judgement – 190802 response 770722 Judgment


09/08/2019Request for an Internal Review.


12/09/2019 – Complaint re FoIA request The Schedule of Damage to Crown Property Rates – Area 10 my reference 190219A10