200122 National Audit Office

RE: HIGHWAYS ENGLAND DAMAGE TO CROWN PROPERTY (DCP) RATES

The following relates to the concerns presented to the NAO when they were auditing Highways England in 2019.

  • Highways England have not been audited competently
  • The pain/gain share has not been explored
  • The lack (alleged) lack of a price list for DCP works not identified in 7 years
  • The inability of the NAO to keep accurate records
  • The failure to address my original complaint

16/04/2019, we approached the NAO being concerned about contradictory information we were receiving from Highways England and in turn, the audits of the company. Read more here.

14/05/2019 the NAO met the Authority and the meeting notes can be read here

What followed is farcical and the full history will appear here and be notified via posts.  In the meantime: 

01/2020update posted regarding Kier Highways & Highways England

22/01/2020 – furtherance of complaint to NAO:

My concerns remain:

  • Highways England have not been audited competently
  • The pain / gain share has not been explored
  • The lack (alleged) lack of a price list for DCP works not identified in 7 years
  • The inability of the NAO to keep accurate records
  • The failure to address my original complaint

29/04/2019, I approached the NAO being concerned about contradictory information I was receiving from Highways England and in turn, your audits of the company. A copy of my complaint appears at Appendix 1. 16/04/2019 to NAO

For years, the Authority has stated that the base rates or ‘defined costs’ used to bill them and Third Parties were commercially sensitive ergo, they exist. My attempts to acquire this ‘schedule of DCP works rates’ via FoIA caused me to be labelled ‘vexatious’. I progressed the matter to a Tribunal at which the Authority was heavily criticised when the Tribunal Judges dismissed their stance1. An extract and comment can be found at:
Appendix 2. 12/2018 Tribunal finding of NOT vexatious

The Tribunal remarked upon:

  • inadequate or inaccurate responses by the personnel within Public Authority.
  • he (Mr Swift) has received erroneous information.
  • Amongst other issues he requested information on three issues his business is concerned which include;
  • One of the contractors was inflating their costs on a scale arguably amounting to fraud;
  • Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold and
  • Transparency and an inability to check costs e.g. on Staff overtime and using false registration VRN number plates.

I find it remarkable the NAO has failed to identify any issues.

FoIA for DCP Rates

In 2017, I made an FoIA request:

“I ask to be provided from 01/07/2014 in respect of Areas with Appendix A to Annex 23 and damage to Crown Property:

  1. The Defined costs, those referred to in Appendix A to Annex 23 of the Contract.
  2. The Third-Party claims overhead.
  3. All information that relates to how the above are to be applied to claims.
  4. confirmation that the charge to Highways England comprises:
    1. the defined cost (at ’12 above)
    2. a fee uplift

The request was deemed vexatious and to support this stance, the Authority compiled a statement with over 300 exhibits setting out the approaches made by multiple people (on whatdotheyknow).  The statement of truth identified 175 rate-related requests or reviews between 2013 and 07/2018.  I have today placed the statement in the public domain[1].

To not one of the 175 submissions (above) did the Authority respond ‘not held’. Who is the vexatious party?

[1] https://www.englandhighways.co.uk/sian-jones-statement-07-2018/

I made the approach to HE for DCP rate related information in 2017.  The Judges found for me without understanding the Authority were arguing to protect the information they do not hold!  I believe the Authority’s stance to be false, that they hold the information.

However, it mattered not what the outcome of the Tribunal was, the Authority was in a no-lose position, I was destined for a pyrrhic victory.  The Authority threw money at they approach never once telling the ICO or Tribunal ‘we are arguing over something that doe not exist’!

This waste of public funds was never about keeping the rates secret, the intention as to label me ‘vexatious’ to undermine the evidence I collate and present of abuses; exaggeration, fraud and malfeasance.

If the Authority ‘won’, if I was deemed vexatious, my credibility was undermined, they succeed.  If they ‘lost’, they simply say ‘no such thing’.

It was in 01/2019, just after they were found against by the Tribunal, the Authority commenced the ‘not held’ stance.  However, despite this ‘no such thing’ approach, there is no mention of the situation in the Authority’s Grounds Of Appeal[1].

[1] https://www.englandhighways.co.uk/190211-grounds-of-appeal-on-behalf-of-highways-england/

11/02/2019, Counsel for the Second Respondent, Highways England makes a submission in which there is no reference to the Authority not possessing the information.

  1. Why has the public Authority engaged Counsel at tax-payers expense without disclosing that the arguments were in respect of non-existent information, or if they did, why was this not brought to the tribunal’s attention?

Rather than advise me or the many other requestors (the Authority has documented 175 rate-related requests!) there was no ‘schedule of DCP works rates’, seemingly without informing the ICO, Tribunal, Government Legal department or private Counsel employed, the Authority pressed ahead trying to have me deemed ‘vexatious’.

The Authority employed Counsel and challenged the 12/2018 Tribunal finding.  Their appeal was  dismissed.  Not content 02/2019, they submitted a further series of grounds to undermine the 12/2018 finding.  Every ground was dismissed[1], the Judge writing:

I wish to express my concern that the Information Commissioner was forced to expend resources, which I suspect are less than abundant, on requiring a public authority to do that which it should do as a matter of course, i.e. comply with the law.

[1] https://www.englandhighways.co.uk/wp-content/uploads/2019/11/20191008092310546.pdf

  1. What has the Authority spent from the public purse not complying with the law and trying to label me ‘vexatious’ rather than say ‘we hold no such schedule of rates’?
    1. HE time
    2. Government Legal
    3. Counsel

175 rates related requests or reviews handled and no one was told ‘not held, no such thing’ until the Authority was forced to disclose them by a Tribunal 12/2018. Why not say, from day-one, there is no such schedule?

The answer is obvious; there is a schedule of rates but they did not need to deny this.  For years the Authority could shield them using FoIA exemptions ‘commercially sensitive’ or ‘vexatious’.  Both fell away in late 2018, the price list was unprotected.  Disclosing the rates would expose the Authority and contractors to criticism, identify £millions in state enabled exaggeration and fraud.  The only refuge … they do not exist.

  1. Has the NAO seen any increase in the Authority’s FoIA staff expenditure since 2013?

The Process

The issues relate to a post-2012 process the Authority instigated, the ‘threshold’ approach to claims, not unlike the ‘excess’ you or I may have on a household or motor insurance policy;

  • over £10,000 the contractor billed the Authority who paid the invoice and sought recovery.
  • Under the £10k threshold, the contractor received nothing from Highways England but was to pursue recovery themselves.

It appears the Authority had a tacit agreement with at least one contractor; whilst there was a process to protect Third Parties (drivers, fleets, hauliers and insurers), ‘Appendix A to Annex 23’, no one would publish or mention this and the contractor could bill what they could get away with. 

It also appears no one monitored the data the contractor submitted to the Authority monthly.

In 2015, the Authority sought to convince me they received no sub-threshold information, this was the realm of contractors.  I have since learned the contract requires regular submissions.

Above threshold, the Authority was billed using ‘mates rates’, the correct process; costs plus an uplift.  Under threshold, an exaggerated process / rates saw massive profiteering.  Whilst the Authority now claims ‘we hold no schedule of rates’, I trust you will understand that not only is this ridiculous, it is also a situation they could change almost immediately; ask their contractors for the rates used to bill on a daily basis.  This information is held ‘on behalf of’ the Authority into whose shoes the contractor has stepped. 

The Authority and NAO failed to protect the public. Many £millions have been and continue to be strong-armed from Third Parties in the name of the Authority.

Cost Plus (Cost+)

The process that SHOULD have been engaged is simple, equitable:

  • Charge the Authority and Third parties the same (cost) per hour to which is added an uplift of about:
  • 10% to the Authority and
  • 25% to a Third Party

An operative costing about £24 / hour (this comprising salary, NI etc.) should therefore be charged, per hour:

  • £26.40 to the Authority
  • £30 to a Third Party

I am not going to argue the merits (or otherwise) of the uplift differences, I have ignored these, have been prepared to act in accordance with the contractually agreed process.  I suspect you are very familiar with this ‘costs plus’ process i.e. the actual cost for something (operatives, staff, plant and materials) plus an uplift.

But the charges presented were (are):

  • £26.40 to the Authority
  • £70[1]+ to a Third Party

[1] Currently about £65 / hour in Areas 6 & 8

This £70 / hour became £105 / hour after 5pm of a weekday and £140 / hour of a weekend buy use of 1.5x and 2x multipliers.   The contractor claims these were costs incurred, paid to their operatives, we believe otherwise i.e. this element representants a fraudulent claim.

Assuming the NAO looked at any claims, you will have noted the Authority is not charged these uplifts.

  1. If no uplift is paid, how is telling Third Parties and the Courts to the contrary other than a fraudulent misrepresentation?
  2. What is the Authority doing to address this practice?

Highways England claim to have explained my misunderstandings.  I have yet to have the above explained!

Standard rates were only being applied 8:00 AM to 5:00 PM weekdays – 45 hours out of a 168 hour week (7 days @ 24 hours / day).  Therefore more often than not multipliers are being charged.  An operative that should be charged to a third party at £30 per hour was more often than not being

To be continued …(24/01/2020)