Annex 19 FoIA & The Public Purse

22/03/2019 To: casework@ico.org.uk
Subject: RE: New ICO complaint following Decision Notice[Ref. FS50831358]

Thank you for your email.  I believe the decision notice referred to is that of 16/08/2018 (attached)

This relates to my 2015/2016 requests of Highways England for sub-threshold (£10,000) information and their repeated response ‘no information held’  They were insistent that claims below the £10,000 threshold were retained and handled by their contractor and therefore:

  • They (HE) held no information
  • The information was not available via FoI

Ultimately I accepted this at that time being unaware there was a process set out in the contract (Area 9, as of 01/07/2014) which meant some information was common to above and below threshold claims, namely ‘defined costs’.  I learned of this 01/2017 (approx.).

Of greater relevance, I also discovered that, in accordance with Annex 19 of the contract (ASC) the contractor was to send information about every claim to HE – specifically every sub-threshold claim.  I have attached an FoIA response that refers to Annex 19 and can be found online:

https://www.whatdotheyknow.com/request/390849/response/955738/attach/3/FOI%20748%20674.pdf?cookie_passthrough=1

  • I am seeking all efforts by Highways England to discover the information I requested as clearly I was misled. In turn, I believe this will reveal the concerted actions of those who sought to keep me from the data.

It transpires that the need to send information (Annex 19 reports) is linked to monthly lump-sum payments a contractor receives; that there exists another threshold (calculation / figure unknown) related to recoveries from Third Parties.  As I understand, if the contractor exceeds the threshold, their monthly lump-sum payment for items such as grass cutting, pot-hole filling and debris clearance is reduced.

Highways England have written that no contractor has ever achieved this.  This further supports HE receiving information sub-threshold; unless the Authority receives the information, how could they know whether or not the threshold was attained and in turn whether the lump-sum should reduce?

I have attached a document (lumpsum payment) that may shed some light on the issue but relates to an ongoing FoIA request of HE which is currently the subject of review.  I am not asking you to consider this request (in-progress) rather that you note the information that HAS been (and is referred to below) provided.

The attached forms part of a submission I am making to Pam Clements at the ICO regarding the Authority in respect of an in-progress request,

Annex 19

The relevant extract from ‘Annex 19‘ is:

The report received is as required by Annex 19:

Third Party Claims handled by the Provider Service Information Chapter 1.9 & Annex 23 Report detailing, for each claim:

  •  the amount claimed from third parties,
  • a calculation of Defined Cost and resulting Third Party Claims Overhead,
  • the amount recovered,
  • an explanation of any differences between any of these amounts, and
  • explanation of why any loss greater than Defined Cost has been claimed.

Contractually Kier is to send this regularly to HE.  I am told it is sent.  A Court has been told this and a witness statement confirms this – attached, para. 24.  The statement is from Ms Sophie Granville, Kier Highways former claims manager who put their current process in place.

The in-progress FoIA resulted in HE sending me the following for a claim and it is this to which I refer in the attached.  Whilst the Authority will likely say ‘we requested this information from Kier for Mr Swift’ i.e. it is a one-off, I do not accept this.  The contract is clear (data is to be supplied on every claim), I am told this occurs and the information is needed to enable HE to gauge whether the lumpsum payment should remain constant or be reduced.

To reinforce the provision of data form contractor to Authority, I have attached a document (Lump Sum Payment) from an FoIA request (TPCO) that provides the recovery figures from 2014 to 2018.  It is evident substantial detail is provided.  The document is endorsed:

Sub-threshold claims are Damage to Crown Property Claims claims with a estimated cost of less than £10,000.00, for a fuller definition please refer to the attached Annex 23 document which set out the Contractual procedures for dealing with Green Claims (note the attached Annex 23 is from Asset Support Contract (ASC) 4 though is identical to the Annex 23 in ASC 9 and 12)

Furthermore, contrary to the 2015/2016 responses I received and about which this matter (with you) relates, it is evident the information is available and can be obtained via FoIA, it has been supplied:

As will be understood from the attached, I know more about the above claim (ref. GC27509) as we handled the matter for a client.

The figures cause me to refer to another aspect of the contract, namely the (until recently secret) Appendix A to Annex 23 which says the means by which to charge a TP is:

Defined cost (£) + Third Party Claims Overhead (%) = no more than (£).

The contractor (Kier) is to use ‘defined costs’ when charging a Third Party but does not, instead using higher rates.  Therefore the figure at ‘defined cost’ is exaggerated.  In turn the TPC Overhead total is overstated:

  • Defined costs are not used (as per the attached) but higher sums
  • The TPCO is 25.29% (math’ above confirms this is used)

‘Defined Costs’ are the subject of sperate FoIA requests indeed, between 2013 and 2018 HE will say they have received 170+ requests for rate related info’ – and have always refused this.  Then, 11/2018 an HE employee stated that the rates were NOT commercially sensitive  … I made a request for them to be told’ not held’; that the rates are calculated per claim.

Frankly, for many reasons, I believe this to be preposterous.  For example, how could Kier calculate their costs for the above / attached example incident and how could HE confirm them – but pertinently, the charge for a commonly seen AIW operative (of just over £70) can be seen to be a constant to Third Parties over many months (if not years) and as:

  • The TPCO is a constant and
  • Defined costs are the same to HE and TP’s

If follows defined costs must be a constant over a period.  Therefore, information about Defined Costs NOT being a schedule, calculated per claim, is absurd, false – this too forms part of my writing to Pam Clements, an ongoing request and demonstrates that much emanating from HE is either false or distorted.

As for the example above), the rates used to reach the ‘defined cost’ total above are NOT correct, but exaggerated.  In turn the percentage uplift (TPCO) is necessarily exaggerated.

  • I believe the amount recovered EXCEEDS what should be the total.
  • In turn, I suspect that this occurs on 3,000+ invoices / annum.
  • It appears Kier are falsely accounting to Highway England and in turn that the public purse is potentially suffering.

The Authority is aware I have concerns about contractor costs, they have stated I have made 57 requests / reviews for information about them.  I have met the Authority and conveyed the concerns, supplying documentation.

Highways England’s General Counsel has supplied me with false charge rates.

It appears the Authority has intentionally kept information from me about sub-threshold matters and ‘coincidentally’ Kier Highways are misrepresenting figures to the Authority, with or without their knowledge and agreement.

Simply put, Kier Highways are reporting that the ‘defined costs’ they have sought from a Third Party are greater than the amount they recovered which results in them reporting a deficit (amount recovered s less than amount charged) and it is suspected this is so as not to adversely affect the monthly payment they are to receive.  This appears to be a motive for HE keeping sub-threshold information from me and suggests they are acting in concert with Kier Highways.

Should any of the above require further explanation or evidencing, please do not hesitate to return to me.