210106 to the ICO: Highways England’s Secrecy about ‘Actual Costs’

ICO-39731-F9F7 Highways England FOI 100897

The request

25/02/2020 I requested information from Highways England:

“…please provide me these ‘actual costs’, those to which you are referring.”

31/03/2020 HE responded – this was a repeat request under section 14(2) of the FOIA and refused to
comply with it.

30/04/2020 – internal review (IR), HE confirmed that it was relying on section 14(2) to refuse to comply with the request.


06/01/2021 to the ICO:

The authority repeatedly refers to actual costs, for example – https://highwaysengland.co.uk/travel-updates/third-party-claims/ extracts from which read, 30/10/2019:

‘Contracts between Highways England (and in the past the Highways Agency) and maintenance contractors have often referred to the basis of recovery as “actual” or “defined” costs. We do not have schedules of rates for the unplanned/emergency repairs specified in those contracts. This lack of transparency led to concerns in the insurance industry that drivers and insurers were not being correctly charged for repairs.’

We will revert to pursuing claims based on the actual cost of carrying out the repairs and will continue to explore options for a transparent and equitable set of rates.

I have noted the Authority’s position since 01/2019; that there are no schedules of rates (stated above) and that this led to a lack of transparency. The NSoRC, of 2019, sprung from the stated ‘discovery’ of the absence of rate; that the Authority appeared concerned (surprised?) that they had no agreed pricing for damage to Crown property (DCP) matters in an ASC (contract) since 2012.  Staggering, if true (which it is not) given we had been raising the issue of rates since 2014.  But the NSoRC was intended to address this lack of transparency and gave rise to a schedule – more about the NSoRC can be read here.

As for this request for the ‘actual rates’, 31/03/2020, I received an anonymous response:

We are refusing this request in accordance with the exemption contained at Section 14(2) of the Freedom of Information Act 2000 (FOIA) on the grounds that it is identical, or substantially similar, to a request you have previously made.

Our response, to your previous request received on 11 December 2018, (reference 768,020) covered this point and was further explained in the internal review dated 7 February 2019 (reference 768,416). I attach a copy of this review for your reference.

In accordance with Section 17(6) of FOIA, we do not intend to send any further refusal notices for any additional requests you make for this information

As I explain below, citing an 11/12/2018 response 9to an obviously earlier request) when addressing a request about a 10/2019 process is clearly wrong.  I set out the continuity in more detail below but it must surely be obvious to the Authority that any request/response that pre-dates their 01/2019, ‘not held’ stance issued following a Tribunal decision of 13/12/2018 (just 2 days before the ‘similar’ matter response above of 11/12/2018) is erroneous; not applicable, irrelevant.

It is the post-2019 activity and information that is the subject of this request i.e. it is new. I conveyed this to the Authority following their initial decision when I wrote 31/03/2020:

Whilst I thank you for your email/letter, this request is not the same as before, far from it.

My previous requests, as you have identified, seek information about ‘defined costs’ or the various descriptions you use for this, rates which you state do not exist as a schedule, or ‘price list’.

This request uses your phraseology for the rates, specifically ‘actual costs’ an example of which appears here – https://highwaysengland.co.uk/thirdpartyclaims/ it is these I am seeking.

I also understand you have submitted DCP rates to Cardiff Court, or via the Court, in respect of ‘stayed’ matters. Apparently, I am the subject of semantics by you, seemingly I need to be more precise. You will appreciate, I am only able to request information by reference to phraseology known to me. To date I have used various descriptions, ‘actual costs’ being the latest.

I am asking that your obstructive conduct stop. You know to what I am referring, I am seeking the costs being used to bill Third Parties and Highways England following damage to Crown property (DCP ) incidents in this instance, those you refer to as ‘actual costs’, amounts you are charged consistently by contractors.

The Authority remains keen to keep costs/rates from Third Parties; drivers, fleets, hauliers or their insurers.

The history of my requests is likely known to the ICO and the Authority (who catalogued much) and should be considered in relation to the Authority’s stance:

  • 2013 to 07/2018
    The Authority catalogues and makes a statement of truth citing 57 requests/ reviews and annotations on another 118 requests/reviews about rates that were HELD but commercially sensitive – Sian Jones (of HE, former ICO staff) statement
  • 13/12/2018
    a tribunal (APPEAL: EA/2018/0088) finds against Highways England and the ICO; my request for rates is not vexatious. I expected the rates to be released.

I seek the rates, in accordance with the Tribunal finding. Highways England volt-faced; they now state the rates are not HELD and do not exist. 175 false responses? No action by the ICO!

  • 01/2019
    The Authority’s CEO explains I will receive, at the very least a schedule of Kier rates. I do not.

The Authority’s CEO advised that a national schedule is to be created (the NSoRC)

  • 24/06/2019
    After months of interrogating rates, multiple sources/schedules, the Authority issues the NSoRC
  • 31/10/2019
    The NSoRC is abandoned.  The above ‘actual costs’ quotes are issued

The term ‘actual costs’ appears to be uncontentious straightforward and yet to date the Authority has failed to provide these despite understanding the need to do so.

Repeat Request s14

The ‘repeat’ cited is:

‘… previous request received on 11 December 2018, (reference 768,020) covered this point and was further explained in the internal review dated 7 February 2019 (reference 768,416). I attach a copy of this review for your reference.’

768,020 relates/refers to a request for information, DCP costs in Areas 9 and 10 made in 2018.  This is BEFORE I was aware the Authority would contradict its 175 responses and claim the previously HELD information was not held, rather than disclose it.  This is BEFORE the Authority explained henceforth it would use ‘actual costs’. Citing 768,020 is therefore clearly inappropriate irrelevant and further evidence of an obstructive, vexatious stance.

When considering the above history, I believe you will find that the exemption (s14) is once again, adopted inappropriately. The request is not a ‘repeat’, it is clearly a new request about a new process, a new phraseology, the post 31/10/2019 methodology, a late 2019 process disclosure.

This request is singularly aimed at the new process, the usage of the ‘actual costs’ that are said to be used when billing third parties following damage to Crown property.  I am struggling to understand how the Authority, with its history of contentious responses to rate-related requests, its discovery of no rates, a desire for transparency etc., would convey the new engagement (10/2019) of ‘actual’ costs if these were unknown, unavailable or did not exist!

The claims to which the methodology apply do not necessarily post-date 31/10/2019 matters, they could be any incidents within the past 6 years. However, the Authority has made its position clear – the lack of rates was a mistake, overlooked and needed to be rectified. The NSoRC looked at many aspects of rates and resulted in a schedule of ‘reasonable’ rates.  For reasons as yet unclear, the Authority abandoned the use of the NSoRC ‘Reasonable Rates’ and elected to use ‘actual cost’.

I possess the NSoRC rates. I wish to be provided the ‘actual costs’ being utilised, the costs that would appear on any claim i.e. would be in the public domain and which Highways England appear to accept are therefore not commercially sensitive.

It appears the Authority is hiding the rates once again to enable contractors to overcharge Third Parties, to keep from Third parties and the Courts a set of comparison rates.

Transparency

‘Actual Costs’ provide for transparency.  To quote Jim O’Sullivan

” … as a result of the judgment (APPEAL: EA/2018/0088) … we will have a, a schedule of rates published by Kier, so that this thing is transparent

But they did not publish the ‘schedule of rates’, The Authority’s CEO was not true to his word, the thing is not transparent and it now appears this is the intention; to keep the environment murky.  Jim had clearly reviewed the methodology advising 15/02/2019:

And having looked at it, I would describe it as incredibly messy, and it is not a transparent world-class process, that’s for sure.

After this statement, the Authority engaged ‘actual costs’; a transparent, clear process that addresses the CEO’s discovery and understanding.  It is this post ‘not schedules fo rates held’ methodology that my request seeks to address – the post 01/2019 ‘not held’ situation – I am seeking the outcome of almost a year of consideration that resulted in the ‘actual cost’ process – the actual costs.

Vexatious

It appears incredible the FoI Act, some 20 years into ist existence, only allows for an Authority to make throw-away accusations of ‘vexatious’, to label (or cause to be labelled) a requestor as ‘irritating’, ‘aggravating’ or ‘troublesome’.  I requestor must sit back and take these accusations on the chin whereas the Authority can be as deceptive, obstructive and annoying as they see fit without any recourse.  For example, a Public Authority cannot be found to be ‘vexatious’ – even when (as they somewhat ironically catalogued to support a previous/failed vexatious stance) they catalogue 715 requests/reviews for rate-related information to which they acknowledge were ‘held’ (either directly or by compliance with s.1 of the Act).  The Authority has taken no action against Highways England.

The Tribunal (APPEAL: EA/2018/0088) reached their ICO/HE contradictory stance without knowing the Authority would volt-face, complete a U-turn on the 175 ‘held’ responses and state ‘not held’.  In the absence of understanding their time, mine and that of the ICO was being wasted (the Authority even running appeals), the Tribunal did not simply ay ‘not vexatious’, they set out numerous concerns:

  • SERIOUS PURPOSE: ‘We have considered the motive of the requestor and in particular his detailed Reply and exhibits. These submissions supported by the documents provided and annexed have persuaded us not only that the motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest.’
  • PROPER USE: On the evidence before us we could not find the request were manifestly unjustified, inappropriate or improper use of FOIA.
  • NO HARASSMENT: Again looking at the evidence before us we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal. They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.
  • AUTHORITY INADEQUATE / INACCURATE RESPONSES: We find that the failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority.
  • NOT UNREASONABLE: we find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor, which in our view, in all the circumstances was not manifestly unreasonable.
  • AUTHORITY PROVIDES WRONG INFORMATION: We have been persuaded that he (Mr Swift) has received erroneous information.

But the ICO is not a deterrent; no action was taken about any of the above to which add ‘the Authority provided 175 erroneous responses). The above factors have not changed Indeed, it is reasonable to believe, having been berated in this fashion, the Authority would look to itself, seek to address the situation and stop conducting itself in this vexatious manner.  However, why would they, the above criticism was not acted upon

Actual Costs

I ask that you consider the logic of the situation. With regard to, for example, Area 9 (Kier Highways), their contract set out, from day-one (01/07/2014) that they were to use ‘cost’ plus an uplift. Do you really believe that they do not know their costs, that they had not ensured these were collated, available, ready to be utilised when the contract commenced?  I am mindful Kier Highways failed to comply with the contract from day one, The Authority hid the extract from the contract that set out how Third Parties were to be charged ‘no more than’ using ‘cost’ and failed to ensure compliance – or turned a blind eye to the behaviour. Drivers, fleets, hauliers or their insurers are owed £millions.

Do not take my word for this abuse, that the Authority ignored our valid, accurate concerns since 2015, a Judge was informed by the Authority’s own witness that Kier was making unaccountable/unauthorised uplifts, para. 36 of the 08/2020 Judgement reads:

Furthermore, for the purposes of assessing the extent of Kier’s authority within Area 9 (Area 6/8) the court cannot ignore the evidence given on behalf of the claimant by Mr Cairns. In summary, on this issue his evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract.

In 08/2020, a Court was told (above) by the Authority’s own witness there are unauthorised uplifts – we have been telling the Authority this since 2015 and yet all their audits, reviews, enquiries (to include the appointment of KPMG) failed to uncover this … then their own witness, a Kier employee who they put forward to give evidence to SUPPORT a claim, ‘confesses’ … unauthorised uplifts! Please excuse my exasperation but there must be a reason why the Authority either failed to uncover this conduct or enabled and permitted it, turned a blind eye.  The conduct is scandalous and, as we have conveyed, acknowledges ‘gross exaggeration permitted/enabled by the Authority on an industrial scale’; 1,000’s of invoices have seen demands for payment made in the name of the Authority for sums which are unjustified – on occasions with Courts being misled about the appropriateness of said uplifts.

I do not accept these unauthorised, inappropriate or excessive uplifts have stopped.

But this request is for the rates an educated (they must understand the issues) Authority is now utilising, the pricing Highways England, having learned of the abuses, the concerns, the lack of transparency and fraud, now considers appropriate. This request is not for the secret schedule the Authority is concerned to disclose as it would highlight the extent of the abuses and misrepresentations, even to the Courts.  I am seeking the rates they are currently using, the ‘actual costs’ which they refer to.  These are NOT commercially sensitive. In a Tribunal hearing it was put to Patrick Carney (Highways England) documents about rates I possessed were not commercially sensitive. Mr Carney agreed that that must be the case as I would not have these documents otherwise – Cost Breakdown Documents (Kier Highways) etc.

It appears the contractor still utilises one set of (lower) rates for the Authority and another (higher), schedule of rates when billing Third Parties; a reasonable set of rates to Highways England and an unreasonable set for Third Parties. This flies in the face of a Judgement both Highways England and a contractor cites, that of HHJ Godsmark. I refer you to para.25:

‘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 (a contractor).‘

Furthermore, having had their knuckles wrapped for adding a 10% ‘admin’ fee to claims, we now note Kier Highways has adopted a new stance, adjusted their charging methodology. Advised by a Judge they could not add a 10% claims handling charge, they have replaced the uplift with a new one and are charging more! Third Parties can now expect to see a ‘Planning and Permanent Repair (Fixed Cost)’ an as yet unexplained fee – read more here.