National Highways has refused to comply with the ICO’s Decision Notice and is withholding Third Party charging information they were directed to disclose, appealing the ICO’s decision such that, in the meantime, they are not required to disclose what is held by their contractor. For years, the Authority failed those they were to serve and permitted their contractors to fleece drivers, fleets, hauliers or their insurers (Third Parties). It is unsurprising they wish to keep the costs and facts secret.
But can an Authority dilute the FoIA by cowering behind a contractor and hide their failure to monitor a contract, enable profiteering and keep agreed rates secret? So much for transparency!
The withholding of ‘commercially embarrassing’ information:
02/09/2021, the ICO ordered the Authority to disclose information. The ICO concluded charging information relating to repairs to the SRN (strategic road network) was held by contractor Kier Highways ‘on behalf of’ the Authority. This is common sense. For example, Kier:
- purse claims from Third Parties (drivers, fleets, hauliers or their insurers) in the name of Highways England
- were to charge Third Parties using rates agreed with the Authority and the same as those they charged the Authority* and
- should apply an agreed 25.29% uplift to these agreed rates
Kier’s Contract Non compliance & Highways England’s Failure (or Inability?) to Act
Kier ignored the contract from the ‘off’ in Area 9, (01/07/2014), the methodology (Appendix A) equation that was to result in the ‘maximum’ charge to a Third Party was not utilized. Instead:
- Kier did not use the agreed rates** when billing Third Parties instead charged by use of far higher figures and a profiteering process.
- Highways England / National Highways failed to identify/stop this and even when alerted, the process continued
- Kier did not set out the uplift*** being applied to the rates when billing a Third Party – unsurprisingly given they were not using the agreed amounts!
- Highways England denied the existence of agreed rates but ultimately was forced to provide them to us
Kier ‘Kept the Authority Sweet’
When billing the Authority, Kier engaged the process; billed Highways England the (far lower) agreed rate plus the agreed percentage uplift. Highways England knew the process, were party to the contract, knew the ‘rules of the game’. Third Parties were not only uniformed, the section that set out the process by which they were to be charged ‘no more than’ (Appendix A) was hidden from the very people who needed it; never spoken about.
Kier did not comply with the process when billing Third parties and National Highways kept it secret. Coincidence?
For years Highways England has protected the rates thereby preventing us understanding the true extent of the profiteering they enabled, permitted.
It appears the Authority may be so compromised as to be ineffective.
The above process, Appendix A, no longer applies. The Authority could simply have instructed Kier to stop fleecing Third Parties and comply with the public-protective, contractually agreed process. But instead, they changed the contract to enable Kier to charge higher rates than the Authority is presented (odd*).
The information we have sought, would further support the misconduct that has occurred, the contract non-compliance and excessive charging. It would also identify the misrepresentations by the Authority and contractor to Third Parties, Courts, the ICO and Tribunals.
22/09/2021 to read the ICO’s notification of National Highway’s appeal, click here
- *also conveyed by HHJ Godsmark @ Line 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 (contractor)’
- **we now possess the rates; the sums Third Parties were charged are significantly higher. They should not differ
- ***Kier was applying ‘uplifts for which he (Kier’s employee) was unable to find authority within the contract. Line 36 HHJ Harrison
EA/2021/0257 & IC-48280-N2N3 – National Highways v Information Commissioner