Defined Costs Request

Request for ‘Defined Costs’ – FOS FS50703446 (EA/2018/0088; Swift v (1) ICO (2) Highways England).

This should not simply be considered in terms of what was sought, but also the conduct of Highways England (HE), their staff, Government Legal Department (GLD), their legal counsel and the ICO … if HE are to be believed, the information sought, that has involved all the aforementioned … does NOT exist.

Yet, Ms Sian Jones of HE will say that between 2013 and mid-2017, HE received 150+ requests or reviews in relation to contractor costs. It appears that in not one case did HE respond ‘sorry but we do not possess the information‘.  Instead, they cited ‘commercial sensitivity’, undertook reviews and ‘public interest tests’ that upheld the decisions, involved contractors who agreed the rates were ‘commercially sensitive’ and ultimately (as below) cited ‘vexatious’.

Then, 11/2019, shortly after a Tribunal was told ‘the rates are not commercially sensitive’ HE’s stance changes … the rates are ‘not held’, they are ‘mythical‘.


25/07/2017 To: Highways England FOI Advice
Subject: Highways England contractors Defined Costs

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

  • The Defined costs, those referred to in Appendix A to Annex 23 of the contract
  • The Third party claims overhead
  • all information that relates to how the above are to be applied to claims
  • confirmation that the charge to Highways England  comprises:
    • the defined cost (at ’12 above)
    • a fee uplift

I do not accept that the above is commercially sensitive.  I refer you to:

https://www.englandhighways.co.uk/commercially-sensitive/arguments-for-disclosure/
https://www.englandhighways.co.uk/allegations-evidence/
https://www.englandhighways.co.uk/commercially-sensitive/

Prior to their new pricing process (10/2015) Kier Highways were content to disclose a great deal of information about costs – a complete schedule / breakdown.
Highways England do not know  how much they are charged for some facets.
Kier Highways and Highways England are unable to price a claim – despite access to the rates, to the process, Kier have reached very different figures on a claim.
These charges are necessarily required by Third Parties, the public.


Highways England did not respond that the information sought ‘does not exists’ i.e. it is ‘not held’.  They acknowledge, between 2013 and mid 2018 receiving 150+ requests or reviews in respect of rates yet seemingly in not one instance did they say ‘there is no schedule.  Instead they:

  • have cited ‘commercially sensitivity’
  • undertaken Public Interest Tests (PIT) which upheld the decision – on occasions several HE staff considering the exemption used
  • received confirmation from their contractor that rates were commercially sensitive
  • claimed approaches were ‘vexatious’ (see below)

Then in 2019, shortly after a HE employee said the rates were NOT commercially sensitive, it transpires they do not exist! For more about the mythical beast that is the schedule of rates, click here.

The above request history is:

25/07/2017 – request made
23/08/2017 – vexatious response
29/07/2017 – To ICO as HE fail to undertake internal review
28/03/2018 – ICO Decision Notice supporting HE
24/04/2018 – I appeal to a Tribunal
20/07/2018 – Sian Jones of HE 15-page statement + 359 pages of exhibits.
13/12/2018 – Tribunal Decision – ‘We do not think that his is a request that has no reasonable foundation. The information requested has value for Mr. Swift and objective public interest. We have balanced his request against the resource implications of the request and all the other relevant factors. Taking all this into account, and our reasons as set out in the preceding paragraphs, we conclude that the request is not vexatious.’
11/02/2019 – HE apply for permission to appeal to the Upper Tribunal

21/02/2019 – permission refused

HE assisted by:

  • Matthew Atkinson @ governmentlegal.gov.uk Lawyer, CLGp A – Commercial Litigation Team, Commercial Law Group, Government Legal Department
  • Sean Kelsey @ governmentlegal.gov.uk Lawyer, CLGp A, Commercial Litigation
    Commercial Law Group, Government Legal Department
  • Christina Michalos (counsel for HE)

REQUEST & HISTORY


23/08/2017  FOI Advice [mailto:FOIAdvice@highwaysengland.co.uk]
To: Philip Swift
Subject: Highways England contractors Defined Costs

Dear Mr Swift

I am writing to advise you that the information you requested is being withheld in reliance on the exemption in section 14(1)  of the Freedom of Information Act 2000 because your request for information is considered to be vexatious. If you are unhappy with the way we have handled your request you may ask for an internal review. Our internal review process is available at:

https://www.gov.uk/government/organisations/highways-england/about/complaints-procedure

If you require a print copy, please phone the Information Line on 0300 123 5000; or e-mail info@highwaysengland.co.uk. You should contact me if you wish to complain. If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire  SK9 5AF

Yours sincerely
Layla Beckett, Freedom of Information Officer
Highways England | Piccadilly Gate | Store


14/10/2017: casework@ico.org.uk
To: Philip Swift <pswift@cmaclaims.co.uk>

Dear Mr Swift,

Information request to Highways England dated 25 July 2017

Thank you for your correspondence of 29 September 2017, in which you complain about the length of time it has taken Highways England to carry out an internal review.

Although under the FOIA a public authority is not required to carry out an internal review, the Commissioner considers it to be best practice for one to be completed and, in the case of environmental information (which may be relevant) it is a legal obligation. I have therefore contacted Highways England today and asked them to issue a response to your internal review request within the next 10 working days; that is, by Monday 30 October 2017. If you do not receive a response within this timeframe, please let me know by replying directly to this email.

Yours sincerely,

Case Officer
Information Commissioner’s Office


Highways England have not responded by 30/10/2017

21/11/2017 casework@ico.org.uk

Dear Mr Swift,

Freedom of Information Act 2000 (FOIA)
Case Reference:  FS50703446
Your ref: A03A001/L560492
Information request to Highways England dated 25 July 2017

Thank you for your email. Following your correspondence of 13 November, I asked Highways England to carry out its internal review without further delay, and in any event, to update me by Friday (17 November) as to the progress of the review. I have not received a response. In the circumstances, the ICO will accept the case for further investigation. It will be allocated to a case officer for this purpose in due course.

Yours sincerely,
Case Officer
Information Commissioner’s Office


19/12/2017 – ICO confirms copy ICO letter here:  Initial letter to Mr Swift


12/02/2018 – From: casework@ico.org.uk

Dear Mr Swift,
Thank you for your email. As you are aware, Highways England has sought to apply section 14 – vexatious request – to your request in this case. I am currently waiting for a response from HE to my letter of investigation. The letter was sent to it at the end of December, and a response is now overdue. I chased HE for a response last week. If nothing further is heard by mid-week, I will telephone HE to ensure that progress is made.
Yours sincerely,

Information Commissioner’s Office


16/02/2018 From: casework@ico.org.uk

Dear Mr Swift,

Thank you for your message this afternoon. Unfortunately I have not yet received a response. I telephoned this morning and left a voicemail for the relevant officer, but it has not been responded to. I have discussed the situation with the Group Manager here, and we will decide next week whether to take more formal action against the authority. Thank you also for your additional submissions regarding the background to the case. I hope to have a more substantive update for you in the near future.


01/03/2018 – From: casework@ico.org.uk
Subject: Your complaint – Your ref A03A001/L560492[Ref. FS50703446]

Thank you for your message. Unfortunately I have been out of the office this week, unwell, until today, and I apologise for the delay in responding.

It appears that I have not received a response to date from Highways England and in the circumstances it is very likely that the ICO will issue an information notice to them. This is a legally binding document which will require that a response is issued to our enquiries.

I will confirm to you whether this action is being taken, in the next few days.


11/02/2018 – From: Sean Kelsey @governmentlegal.gov.uk
To: grc@Justice.gov.uk
Cc: Viv Adams @ico.org.uk; Louisa Lansell @ico.org.uk; Philip Swift @cmaclaims.co.uk
Subject: EA/2018/0088 Philip Swift v (1) ICO (2) Highways England

Dear Tribunal

Please see the attached:

– Second Respondent’s Application for permission to appeal to the Upper Tribunal (pdf),
Grounds of Appeal on behalf of the Second Respondent, (pdf) and
– the Decision of the First-tier Tribunal dated 13 December 2018 (pdf).

Yours faithfully

Sean Kelsey
Lawyer, CLGp A, Commercial Litigation
Commercial Law Group, Government Legal Department

One Kemble Street, London WC2B 4TS

DX 123242 Kingsway 6
Tel: (020) 7210 1369
BB: 07590 827 130


21/02/2019 from grc@Justice.gov.uk
Sent: 21 February 2019 12:11
To: Sean Kelsey @governmentlegal.gov.uk
Cc: Louisa Lansell @ico.org.uk; Philip Swift @cmaclaims.co.uk
Subject: EA/2018/0088; Philip Swift v (1) ICO (2) Highways England

Dear Mr Kelsey

PERMISSION TO APPEAL RULING
Permission Refused

Your application for permission to appeal to the Upper Tribunal (Administrative Appeals Chamber) has been considered by a Judge and has been refused. Please find the decision attached (Swift, Philip EA.2018.0088 (190219) PTA Ruling as pdf & here as text).

If you wish to apply directly to the Upper Tribunal for permission to appeal, your application must to be received by the Upper Tribunal no later than one month after the date this Tribunal’s decision was sent to you. You will have to complete a further appeal notice form – UT11 or UT13 specifically for Information Rights cases. Completing that form will give the Upper Tribunal the information they need to process your appeal. Further information on how to do this is available on the Upper Tribunal (Administrative Appeal Chamber) web site at: https://www.gov.uk/administrative-appeals-tribunal.

Or by writing to:

The Upper Tribunal (Administrative Appeals Chamber)
5th Floor, Rolls Building,
7 Rolls Buildings, Fetter Lane,
LONDON EC4A1NL

Tel: 020 7071 5662
Fax: 020 7071 5663
DX: DX160042 STRAND 4

Email: adminappeals@hmcts.gsi.gov.uk
Website: https://www.gov.uk/administrative-appeals-tribunal

Yours sincerely,

Admin Officer
General Regulatory Chamber (GRC) | HMCTS | PO Box 9300 | Leicester | LE1 8DJ


 

 


Notes:

  1. claims correspondence relating to the same issue has been raised – Highways England reference: 757 609, my ref: A03A001/L566166.ps – S07B517/PBS request for information – L566166 Defined Costs
  2. With the MACs, the Service Provider was required to provide such breakdowns and supporting information to justify the cost of repairs, as may be reasonably expected by the third parties insurance company (Highways England). With the ASC the emphasis is again on the Service Provider justifying the costs, though the approach in how the costs were compiled changed from the predominant use of Civil Engineering Contractors Association (CECA) rates under the MAC to Defined Cost plus Fee under the ASC. The
    principle’s behind both are or were standard practice and significant information is freely available on the internet.
    Price adjustment factors and discounts are set out under the specific contracts, though I believe your question is framed with regard to Damage to Crown Property by third parties. With regard to the latter, as stated above, this is claimed upon either CECA rates or the principle of Defined Costs using Notional Rates. The latter, in essence, are the average costs of a person, plant or equipment captured over a time period to provide an average hourly cost. Given the rolling nature, the costs will vary over time though and this should not be confused with price fluctuation flowing from discount or inflation. As stated, the principles and rationale behind Defined Cost plus Fee is freely available on the internet. – source: HE FoI – 752,875