200501 to Highways England re Deleted Rates Schedules

From email exchange here.

01/05/2020 to Highways England (This request was superseded by 28/05/2020 approach which can be read here)

Dear Mr Reardon

Thank you for your response.

As usual, I note that you are playing semantics with the careful use of language ‘schedule of rates for unscheduled damage repair claims’, whilst knowing there are agreed schedules of rates for maintenance and repair duties and that these same are applied to the defined costs basis of third party damage claims.

The decision of the tribunal of 12 December 2019 was based entirely upon the evidence presented to it; I was there and no witness statement evidence was presented by anyone within HE who actually handles the claims on a daily basis. Neither of the witnesses were familiar with the claims handling processes, and openly admitted same.

It is interesting to note that Kier, having been referred to a spreadsheet formula reference to another document, now acknowledge the existence of a schedule of rates but state that the document is outdated and they’ no longer have a record of it’. It appears this is deleting relevant evidence, such that it can fall within their latest ruse of ‘it doesn’t exist’ when faced with disclosure requests.

The fact is that in the tendering process HE sets out a very detailed procedure which requires schedules of cost components to be priced and model formulas agreed. The contractors then use this process to calculate if damage caused by third parties lies above or below the agreed threshold of £10,000. If above, HE pays them the costs in accordance with that agreed schedule and costs/rates. If below, the same tariffs are applied, but with a reasonable uplift. That is how it is supposed to work, but as we can demonstrate HE’s contractors frequently ignore that principle, and HE have allowed to continue without any effective governance. That is another issue which the Tribunal noted, but commented that it would be for other bodies to consider.

You state that the correct approach to recovery of damages in highways scenarios is as per Coles v Hetherton. I would point out that Coles dealt with motor vehicles as the damaged assets. With highways claims, the assets involved are relatively low value, it is the access costs which ramp up the claim values and this type of damage does not fall within the heads of loss involving Coles. Why do you ignore HH Godsmark:

It seems to me that the only sensible interpretation of the authority is that it relates to cost of repair to Highways England. Otherwise it would not reflect the measure of damages by reference to diminution in value. It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via BBMM (contractor).

You state that the cases before Cardiff are those in which we play no role. In fact 15 involve us directly, and again you draw an artificial distinction to deny open handedness and co-operation in settling these matters, which is all that we have always sought.

On the one hand you write ‘there is no schedule of rates for unscheduled damage repair claims which is used by either Highways England or its contractors.’ On the other, when confronted, you now acknowledge the existence of a schedule of rates used by your contractor.

1. Please explain the contradiction.

As base rates to HE and a TP are the same, this is also a schedule of rates pertinent to you.

2. Please provide a copy of the schedule and

3. Advise when the schedule was used; from what date , to what date

I understand the schedule I have referred to features in the S Wales claims i.e. current matters being progressed in the name of Highways England. I am therefore surprised to learn that a relevant business document of this nature has been deleted (beyond recovery?). I am all the more interested to understand what was disclosed via the Judge.

Kier have used the CBD until 2020. The rates appearing upon the document have remained constant.

4. What replaced the process that gave rise to identical rates being used to bill Third Parties?

The CBD is used above and below threshold in Area 3; the schedule is used to bill you. There is a schedule and this is captured by my FoIA. Indeed, the last Tribunal matter arose from an Area 3 claim with a CBD.

5. Please provide me with the original CBD, in excel format, used to bill Highways England HE 112/003/SG219, Kier references GC19599 / INC67003. The document provided did not display the reference, it appears they had been removed.

You state the list is of ‘equipment rates’.

6. To what equipment are you referring?

7. Please explain why this was not captured by my FoIA request that resulted in a Tribunal hearing that found for me, Appeal No: EA/2018/0088.

My information about the above schedule (price list) being correct, I further understand there are other schedules, for example, ‘Area 9 DCP 35010 costs.xlsx’. Please:

8. Advise when ‘Area 9 DCP 35010 costs.xlsx’ operated (from what date, to what date) and

9. Provide a copy of the schedule and

10. The extract from your contract with Kier (Areas 3 and 9) that deals with information retention.

If the requests within this email are not to be addressed in the usual course of business, they should be considered a new FoIA request.

This request was superseded by 28/05/2020 approach which can be read here

ICO Case Reference: IC-44033-Q9Y5

11/08/2020 to Highways England

Dear Highways England Company Limited,

With regard to this request, the information should have been provided on or before 25/06/2020. It was not; Highways England is once again in breach of the Act – https://www.englandhighways.co.uk/200501-…

This matter refers to my response to a 30/04/2020 email from Tim Reardon. You acknowledged the request, provided reference 101124 but failed to comply with the Act. The request made is ‘FoIA request – ALL schedules’:

Mr Reardon had written:

‘there is no schedule of rates for unscheduled damage repair claims which is used by either Highways England or its contractors’

but when I presented Mr Reardon with no more than a reference, an Excel workbook file name of a price list, he wrote

‘the schedule would have contained a list of equipment rates from 2015.’

I have no interest in Mr Reardon’s excuse that this is a 5-year old schedule (yet it is in use currently). The fact is the workbook is a schedule of rates. It is utilized in cost breakdown documents (CBD )– spreadsheets, in their original format, by Kier for DCP repair matters and has been since 10/2015. The schedule may well contain a list of ‘equipment’ rates from 2015, but it cannot have been deleted because there are claims progressing to Court which rely upon those calculations. Please see (https://www.englandhighways.co.uk/kier-de…) and it existed as at the date of my 2017 request before a Tribunal.

However, following this initial ‘confession’, understanding I had been misled, that there are price lists, I sought further references understanding that the workbook was a commonly used reference process in Excel; that the presented CBD’s contained many links to other workbooks (spreadsheets) that contained the pricing data. I learned of many prefixed ‘TM’ used when billing Highways England and Third Parties in respect of DCP matters. Yet according to Highways England, there were no such schedules of DCP rates – there existed one and one only; the price list for pre-planned works which I have never sought and which I accept are commercially sensitive.

I was directed to other such file names:

• Area_3_equipment_Defined_Cost_latest_15.xls
• Area 9 DCP 35010 costs.xlsx’, a schedule of costs relating to the rates for operatives.
• mfoyle/Downloads/[Area 9 DCP 35010 costs.xlsx

additionally, source reference workbooks are used to populate rates for:

• Asset Inspection Watchman 1 Initial Incident’!B7) £65.75 Initial Incident’!I7
• Asset Inspection Vehicle Initial Incident’!B9) £36.91 Initial Incident’!I9

I have since learned of more spreadsheets, reference workbooks but, not seeking to confuse this request or complicate what is an obvious reference to schedules of rates, I have not further endorsed the FOIA approach.

The fact is that whilst Highways England was quick to respond (within 2 days) to my original approach about workbooks and volunteered that this was a schedule of rates, they have failed to address this latest approach that highlights further references, from a clearly reliable source to schedules of rates used for DCP matters.

I am also concerned the Authority claims schedules have been disposed of, are unavailable, being old. I much doubt this:

1. They appear in current matters before the Courts – they are potentially evidence that may need to be referred to
2. They are accountancy-related documents and should be retained 6 years
3. They are schedules of rates, which Kier and HE are aware I was seeking and should have provided, not destroyed
4. Highways England claim to have received 175 requests for rate-related information between 2013 and mid-2018 stating that the data was commercially sensitive – it is apparent this information (and likely more) is that to which they and their contractor was referring
5. Disposing of computer-managed/held files is unlikely to have caused all versions to be wiped from a system – and why would they have been? Such files take up little room, are small.

The information has been withheld, possibly destroyed

It will also be noted that the amended, superseding request, referred to Area 10 and the existence of similar schedules there.

Yours faithfully,

Mr P Swift