12/04/2021 an Information tribunal upholds our appeal, the judge writing:
‘I am unable to agree with the Commissioner that HE was correct when it said there was no further information held within the scope of the request.’
Years of seeking the information, six Highways England witnesses, their lawyers and counsel all to try and hide information that obviously existed but the disclosure of which identifies the extent of contractors overcharging drivers, fleets, hauliers or their insurers, by £millions. Having first raised concerns in late 2015, rather than address them, the Authority enabled and permitted the abuses to continue. It is questionable what, emanating from Highways england can be believed.
To Highways England;
I am writing you as Mr O’Sullivan’s successor, who, as it now transpires, was given poor legal advice concerning legal obligations upon Highways England Company Ltd concerning FoIA requests.
For approximately 6 years, I have sought DCP (’damage to Crown property’) rates having evidenced your contractors over-charging Third Parties for incident attendance and repairs.
Under the previous ASC contracts with Kier Highways, they were in fact only permitted to charge actual costs plus an agreed mark-up. The ‘defined costs’ formula (Appendix A to Annex 23).
This was used as a pretext to claim ‘there are no agreed schedules of DCP rates’. Mr O’Sullivan did tell me that there were schedules which gave the appearance of agreed DCP rates but did not identify what they consisted or the circumstances under which they were formulated. He was to provide me the information but failed to do so.
Now, before a High Court Judge in the Upper Tier Tribunal, his view is such schedules are disclosable and were within the ambit of my FOIA requests.
Having been repeatedly told that such issues should be decided by the Court, can you now please confirm to me that HE will no longer dispute the existence or relevance of such schedules to my requests for information? The previous advice under which Mr O’Sullivan was acting was incorrect, and there is now an opportunity to correct historic wrongs and bring your contractors into line.
For example, in Area 10, the contractor BBMM advised the Court that above-threshold rates were subsidised and should therefore not be relied upon as given a market costs rate. Before the recent hearing, a senior HE witness and former BBMM manager, confirmed that this was incorrect.
To summarise the point, for third party recovery claims, HE is entitled to recover the diminution in value of the damaged asset, often being assessed by reference to the reasonable costs of repair, being a market rate. Since motorways have monopoly contractors, only HE holds analytical information concerning what market rates consist of.
As it transpires, extensive analysis of ‘people costs’ is carried out to assess whether the bills presented to HE for above threshold claims are reasonable. It is this information which I have been requesting for almost 6 years, where I have been accused of being ‘vexatious’ (which another Tribunal held was not true), or that the information is ‘commercially sensitive’ (which was twisted to encompass tender rates, rather than averaged people and plant costs). Since 2019, following my Tribunal Appeal which should have resulted in disclose of the ‘held’ rates, HE volt-faced, your stance became ‘such rates are not held’ (which the Court has now struck down as being incorrect).
It appears to me that HE has now run out of arguable exemptions under the FOIA, and you now need to obey the law.
I look forward to hearing from you
12/04/2021 following the Judgement further rates were disclosed.
For a brief history of the antics we have had to endure, click here