210106 Highways England’s Spin on a Judgement citing ‘Contractually Agreed Rates’ – of course they exist!

The linked FoIA request relating to the following can be read here. The request stems from the judgement in Case No: E47YJ407 & E82YM832 IN THE COUNTY COURT AT CARDIFF 21st August 2020 and the Judge’s statement in the ‘approved Judgement’ at para 6(iv):

For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed rates.

The above is clear; for REPAIRS, not ‘pre-planned’ or ‘scheme’ works, Kier charged the Authority using AGREED RATES

Yet when asked for said agreed rates for DCP works above-threshold, the Authority responded:

  1. There are no contractually agreed rates for damage repair claims above £10,000 and this has been covered in numerous responses, decision notices and in the First Tier Tribunal decision EA/2019/0119 which found no such rates are held.
  2. Our interpretation is that the Judge’s reference to such agreed rates at Para 6 (iv) is a reference to the pricing schedule for target costs for schemes and these have been found to be commercially sensitive both by decision notice and First Tier Tribunal EA/2018/0104. In this aspect it is considered that the information is held but is being withheld under Section 43 of the Freedom of Information Act 2000.

‘a’ contradicts the Judge’s writing and the issued judgement, which was ‘approved’ i.e. sent to the parties involved for review/correction pre-issuance.

‘b’ is a bizarre interpretation as the Judge was:

  • considering DCP incidents i.e. DCP rates (the pricing of DCP events),
  • sufficiently well informed to understand there is a threshold (£10,000) above which Kier bills the Authority (as opposed to retaining and pursing recovery themselves)
  • makes reference to a threshold (£10,000) which doe snot occur in pre-planned matters
  • describing how REPAIRS are charged using AGREED RATES

Once again, Highways England looks to confuse matters, to obfuscate by use of a red-herring, raising the irrelevant ‘ASC rates‘; those for pre-planned or scheme works.

ASC (contract) Rates

We are fully aware of these ‘ASC Rates’, a schedule used for pricing PLANNED (organised, arranged) works.  This price list is utilised for what are often major projects.  They have no threshold, there is no consideration of who to bill subject to the costs – no Third Party to approach for reimbursement.  These events, subject to ASC rates, are billed to the Authority and we accept that there will be a price list for such works, one we have never sought and have little interest in – save that it is begging to seem as though the ASC rates are in fact the same as DCP rates, something the Authority has denied to us and a tribunal.

DCP Rates

Damage to Crown Property (DCP) rates are applied when an incident (collision, fire or spill) occurs.  By their nature, they are UNPLANNED and just as in the case of HHJ Godsmark’s judgement, the Court was looking to the rates seeking to understand whether those utilised were ‘reasonable’. DCP events followed one of two routes, generally (with some exceptions):

  • above £10,000, Kier bill the Authority.  The Authority pay Kier and the Authority then approach the at-fault Third Pary for reimbursement – as per the judgment, they do so using contractually agreed rates
  • below, £10,000, Kier does NOT bill the Authority.  Instead, they retain the claim and must pursue the at-fault Third Pary for reimbursement

It appears likely that Kier, not benefitting from the above-threshold rubber-stamping for payment of their invoices engaged by Highways England and encountering some sub-£10,000 claims with no culprit, they elected to ignore the contract and charge as much as they could – to profiteer.  The Authority kept the contractually agreed process secret, did not mention it and Kier did not comply and was also silent on the issue – until we uncovered it.

It has long been evident that For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed ratesI have asked to be provided with these and encountered the lame obstruction, a delaying tactic; the Authority appears to believe their potion cannot be any worse by denying the existence of the rates and that at worst, they may have to disclose them (by which time they will have diluted their relevance) or they may get lucky and be able to bamboozle parties (adjusters, insurers, the ICO and Tribunals) and ‘get away with it’.  However, the concerns go well beyond just the rates:

  • it appears the Authority is so compromised as to be ineffective giving rise to concerns about projects such as Smart Motorways and the Stonehenge Tunnel
  • the public purse also appears to have been ransacked

We have therefore responded to the Authority and the reply can be read here.