In 2016, we wrote to Jim O’Sullivan, Highways England’s CEO who assured us Highways England was putting ‘a lot of effort’ into reconciling the costs about which we raised concerns – two top men were appointed; Tim Reardon (General Council) and Nick Harris (current acting CEO). But no change occurred, the gross overcharging we raised 21/11/2016, continued:
- the Authority, at the time, kept Appendix A secret – no one mentioned this small section of the contract that protected drivers, fleets, hauliers or their insurers (Third Parties)
- Third Parties continued to be charged over £70/hour for a Kier operative whereas Highways England was charged about £25/hour
- Third parties would see 1.5x uplifts on the £70/hour after 5pm of a weekday yet the Authority was not subject to this multiplier – an uplift Kier stated they paid their operatives but which operatives denied
- it appears Nick and Tim’s efforts failed to uncover the absence of agreed rates in any ASC which, at that time were said to be ‘held’ but ‘commercially sensitive’ but, when required to be released following a Tribunal hearing (12/2018) saw the Authority U-turn, they did not exist … only to surface for a 03/2021 Tribunal matter!
Therefore, 09/2018 a Freedom of Information Act (FoIA) request was made of the Authority for Tim and Nick’s efforts. The response; ‘vexatious’; nothing will be released. However, this was subsequently withdrawn – unsurprisingly as they had used this trick but 12/2018 a tribunal was scathing of the Authority’s conduct. The Authority therefore had a second bite at the cherry utilising s12 of the FoIA; exceeds the cost limit (£450 – 18 hours @ £25/hour). Odd … the work between these 3 top managers at HE could not be located, provided with ease? The matter passed to the ICO …
The ICO makes no secret of being over-worked, unable to consider complex matters – they expect Tribunals to consider such issues. Sadly, ICO Decision Notices (DN’s), legal documents which may well be regarded by some as well-researched, considered findings, do not carry a caveat that they are a superficial, formulaic output. Many, subject to a dismissive blow from the ICO hurdle, may well have thrown in the towel. It is of concern Tribunals may attach weight to a DN, unaware of the ICO approach.
As for the above request from 09/2018, the prevarication and ICO resource issues saw the matter aired before a Tribunal 06/2021 (EA/2020/0338) ; over 2.5 years after the information was sought. 1,000’s of Third Parties were fleeced in the name of the Authority during the period, a judge found a lack of authority for Kier to apply some uplifts (para 36 – HHJ Harrison) and whilst the Authority states they ‘play no part in sub-£10,000 claims’ this appears to be selective; in 2020 the Authority changed Kier contracts to remove the protection for Third Parties (Appendix A – above). By Deed of variation, Kier was released from this reasonable charging methodology – which they had never complied! Rather than have Kier comply with the contact and adopt the ‘same rate to you and us’ approach, Highways England enabled Kier to bill Third Parties using much higher rates than they themselves are charged; how ‘odd’, to use HHJ Godsmarks’ word (para 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).
The ‘lot of effort’ must surely have uncovered the overstatements, the profiteering and presumably, the existence of rates (subsequently stated to be ‘not held’)? But the conduct continued.
We will shortly report further on the ICO and the above Tribunal matter (heard 07/06/2021). However, as the Authority appears not to have understood the request and struggles with search terms and process*, the exemption (s12) is unsurprising; it appears that until Authority staff are trained how to use search facilities within ‘Share’* and ‘Sharepoint’* attempts to locate information will frequently be met with the ‘too costly’ rebuttal.
*it is not the first time we have had to explain to Authority staff the niceties of ‘boolean’ expressions – Goggle assistance here.
**Highways England document management / software programs