210520 CMA Calls for Independent Inquiry into HE’s Mishandling of DCP claims (Damage to Crown Property)

20/05/2021 to Highways England acting CEO:

Dear Mr Harris,

For four years (2014 to 12/2018), Highways England repeatedly stated ‘damage to Crown property’ (DCP) rates were ‘held’. However, when an Information Tribunal required disclosure of the figures (12/2018), you decided to state DCP rates were NOT held. Whilst this was a misleading and inaccurate position, you stood by the statement preventing the release of rates which would have allowed efficient and prompt consideration of damage-repair claims as presented to insurers and third parties by your appointed contractors. We sought to settle on the terms you and your contractors had agreed.  You prevented this.

We asked Kier, you and your lawyers, Shakespeare Martineau, to comply with the terms of the ASC (contract) to no avail. Excessive demands of drivers, fleets, hauliers or their insurers (Third Parties) continued, Courts were misled, even when those same Courts advised you:

‘It would be odd if a tortfeasor (Third Party) 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)’
HHJ Godsmark @ para 25

In an attempt to address the stated lack of DCP rates (and possibly to bring your contractors into line), you engaged an internal team to create and implement the NSoRC (national schedule of repair costs), to be applied nationwide in such matters, following extensive research into actual and agreed rates for typical repair costs. Launched 24/06/2019, it ceased 31/10/2019 with your web site incorrectly advising (to this day):

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.
HE web site, repeated here.

But you did and do have schedules of rates for unplanned/emergency repairs (DCP rates), contrary to your ‘not held’ stance. Indeed, the manager compiling the national schedule disclosed (06/2019) possession of such data and information (line 34); he had utilised them and I could have them if your legal department agreed (line 163). They were withheld and you perpetuated the ‘not held’ stance.

The ‘the lack of transparency’ and ‘concerns in the insurance industry that drivers and insurers were not being correctly charged for repairs’ were real, yet your instructions to your litigation teams still persisted in historic denials. Why? Because you had no real interest in your contractors being exposed as making hidden profits, by pretending ‘reasonable costs’ were the inflated claims they presented to the courts.

  • You were not and are still not transparent.
  • Drivers and insurers were not and are still not being correctly (or lawfully) charged for repairs.

On 03/2021, an Information Tribunal (EA/2019/0390) was informed there ARE schedules of DCP rates. As a result of the hearing, the ICO wrote [06/05/2021, EA/2021/0048] ‘DCP rates exist for Area 9, as this was Judge Cragg’s finding’. Yet continue to display the above ‘we hold no rates’.

Additionally, in Area 10, your contactor, suing in your name, made an erroneous statement to HHJ Godsmark (judgement referred to above) concerning ‘subsidised’ rates (line 30). On 03/2021 the Tribunal (EA/2019/0390) sought ‘to deal with certain allegations’ (according to your Counsel), but that witness, to give evidence for you, failed to appear.

Accordingly, I am seeking:

1. an investigation of Kier Highways’, BBMM’s and Highways England’s conduct since 2014.

Multiple parties have made untrue representations to protect the financial interests of HE’s contractors, outside the scope of agreed contractual conditions, which can only have occurred through collusion at senior level.

2. a repricing of the sub-threshold claims we have handled and account to those who have suffered loss as a result

21/11/2016, your former CEO (Jim O’Sullivan) wrote to me:

Thanks for your note.
I also want to ensure that drivers only pay appropriately for the damage they do to Crown property.
I’m sure the current process could be simpler and I know Tim and Nick will be working to achieve this.
We are certainly putting a lot of effort into reconciling the past costs that you are talking about.

3. Please provide me with your email exchanges about the ‘effort’ and its outcome, and copies of the resulting reconciliation.

Your prompt attention to the disclosure would be appreciated, the issue is due to be reviewed by an Information Tribunal 07/06/2021

In 2017, you appointed KPMG to investigate my concerns about the charging methodology of Kier. DCP Rates were at the heart of the issue, there were schedules of DCP rates, yet you subsequently stated ‘none held’.

4. Please provide me KPMG’s report.

Yours sincerely,

P. Swift

Standard response by the ‘High Level Correspondence’ team who have already demonstrated a dismissive, unprofessional approach to submissions*:

From: CCC_HLC_Central@highwaysengland.co.uk
Sent: 20 May 2021 12:45
Subject: Highways England response – DCP Rates – Reference 21934274 HECCC:0651063

Dear Mr Swift
Thank you for your email of 20 May to our Interim Chief Executive, Nick Harris. Please accept this email as receipt of your query.
Our Chief Executive has asked for details of your query to be passed to the relevant business area for their investigation.
The maximum response time is 15 working days, however we will try to respond sooner.
Your reference number is CEO 21934274
Kind regards
High Level Correspondence Team
Highways England | National Traffic Operations Centre | 3 Ridgeway, Quinton Bus. Park | Birmingham | B32 1AF

*210310 Highways England’s Ineffective Correspondence Process & the Area 10 DCP Rates Scandal

Further reading: Area 9 relevant time line