Tribunal Dismisses Highways England’s ‘Vexatious’ Exemption to FoIA Request EA/2018/0088

The History of the 2017 request EA/2018/0088, is as follows:

2017, I sought information from Highways England (‘HE’ or ‘the Authority’) about the Defined Costs (or base rates, actual costs), the rates should be used by Kier Highways Ltd (‘Kier’) when billing drivers, fleets, hauliers or their insurers (Third Parties – TP)) for a very simple reason:

  • the contract between HE and Kier had a logical, simple and sensible section that said HE and TP’s were to be charged the same base-rates (defined costs).  To this Kier would add an uplift which would differ:
    • about 8% to HE and
    • 25.29% to a TP (in Area 9).

It appears someone at HE considered protecting TP’s from the contractor was necessary but: 

  • what was the point of this ‘TP Shield’ section if it was not to be employed? 
  • what was the purpose of calculating a 25.29% uplift and agreeing on this approach if it were not to be employed
  • who should have ‘policed’ this – ensure Kier complied (and the public were not abused)?

Possibly a recent development provides an insight; in 2020 HE changed Kier contracts, backdating this to 07/01/2019, to enable Kier to charge far more.

  • did Kier ever intend to comply with the ‘no more than’ section of the contract?
  • did HE agree to ‘turn a blind eye’ to monitoring and enforcing this?
  • is this why HE initially stated they receive sub-£10k claim data from their contractors (in accordance with the contract) but subsequently deny this occurs?

HE was being charged £23.71 for an operative (AIW) plus 8%, so a TP should be charged £23.71 plus about a 1/4 (25%), approx. £6 and the total would therefore be £30. But TP’s were being charged over £70/hour.  The math’ evidence this contract non-compliance, the exaggeration.  That HE was paying no uplift on this rate after 5pm of a weekday and a TP was paying 50% to 100% is another story – one of fraud.

Armed with the schedule of rates, we could demonstrate much:

  1. what a TP should be paying – I could calculate the cost accurately and ensure my clients were being charged the reasonable, accurate sum
  2. I could ensure HE was being billed using the correct schedule on the correct date
  3. exaggeration would be obvious
  4. contract non-compliance would be evidenced
  5. the submission by Kier of false costs to Highways England would be highlighted
  6. false information from the Authority could be established.
    1. provision of incorrect cost information
    2. false statements about Kier’s contract compliance

Briefly,  Kier’s contract non-compliance from the off (01/07/2014) in Area 9 is so obvious as to be worrying.  Having agreed the above ‘common base rate’ process with the Authority, Kier did their own thing (1153) and grossly overcharged TP’s raking in £millions (the rates are here) until we put an end to this 10/2015.  Kier were able to operate brazenly because they and the Authority kept the process secret, the Authority hid the ‘maximum charge’ equation section and did not enforce it.  The replacement 10/2015 process saw exaggeration in another guise, a different but still contract non-compliant process engaged all under the nose of Highways England.  Seemingly, the Authority did not find it peculiar that their ‘one charging process’ now saw Kier using a second?

The ‘charge no more than’ section of the contract surfaced (inadvertently) 01/2017.  This should have put pay to the profiteering.  But no.  However, understanding the basis of all invoices should be ‘defined costs’ we were able to target these. 

2017 FoIA Request for Defined Costs

The request was refused,  considered ‘vexatious’ by the Authority.

28/03/2018 The ICO supported the section 14 exemption FS50703446 – 280318 Decision notice

The ICO supported the stance and the matter progressed to a Tribunal. 

20/07/2018, in an attempt to support the vexatious label, Sian Jones (FoIA @ Highways England, a former ICO employee) made a statement for a Tribunal detailing 57 ‘rate-related’ requests of reviews I have made between 2013 and 2018.  To this Sian added 118 further requests/reviews I had annotated on the WDTK web site – a total of 175 requests/reviews for rate-related information received by the Authority over 5 years.

For many of these, the Authority followed the required process, in accordance with section 1(1) of the FoIA 2000:

  • firstly determine if the information is held
  • secondly, consider disclosure or an exemption

In multiple approaches for rate-related-data, the Authority responded ‘HELD’ i.e. the information was possessed – of course, if it were not, a response would be uncomplicated, final; ‘not held’, nothing to disclose. However, the Authority not only determined the information was HELD, but:

  • the information was ‘commercially sensitive’. 
  • Public Interest Tests supported this stance.

02/12/2018, It is important to stray a little here from the ‘vexatious’ matter to touch briefly upon another Tribunal hearing Appeal Reference: EA/2018/0104 (Full Decision).  This involved Highways England and TP repair rates the relevant aspect being:

  • ASC (planned) rates were differentiated from
  • DCP (emergency) rates. 

The former were considered ‘commercially sensitive’, the latter not.  This hearing undermined the ‘commercially sensitive’ exemption the Authority had cited in many (or the 175) requests/reviews; one of the Authority’s defences had fallen away.  the ‘vexatious’ obstruction was all that stood between me and the information:

13/12/2018, a Tribunal dismissed the vexatious allegation despite being unaware that the Authority was in fact protecting … nothing! I was found NOT to be vexatious (read more here).  The Decision can be read in full here.  The Tribunal commented: 

  • SERIOUS PURPOSE: … the documents provided and annexed have persuaded us not only that the motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest.
  • PROPER USE: … we could not find the request were manifestly unjustified, inappropriate or improper use of FOIA.
  • NO HARASSMENT: ‘ … we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of Highways England
  • AUTHORITY INADEQUATE / INACCURATE RESPONSES: … inadequate or inaccurate responses by the personnel within the Public Authority.
  • NOT UNREASONABLE: … the requestor was not manifestly unreasonable.
  • AUTHORITY PROVIDES WRONG INFORMATION:  he has received erroneous information.

12/2018, whilst the Authority was now required to provide the information, they responded ‘NOT HELD’; that no schedule of DCP rates existed, therefore they had nothing to disclose!

At no time since 2013 had the Authority ever indicated the rates did not exist.  This appears nowhere in their submission to the ICO or to the Tribunal.  There was no suggestion our time, was being wasted, spent arguing about something that would/could never be released, that at best I would achieve a pyrrhic ‘victory’.

11/02/2019, CHRISTINA MICHALOS Counsel to Highways England compiled the grounds of appeal on behalf of Highways England –  190211 EA_2018_0088 Grounds of Appeal on behalf of the Second Respondent.  No mention was made that the information did not exist.

13/02/2019, despite taking the stance there was no information to disclose, the Sean Kelsey Lawyer, CLGp A, Commercial Litigation, Commercial Law Group, Government Legal Department
(GLD), for the Authority, appealed the decision – EA_2018_0088 Second Respondent_s Application for Permission to Appeal to the Upper Tribunal.  No mention was made of the appeal (and associated costs) related to information that it was now claimed did not exist. 

19/02/2019 permission to appeal was refused by Judge Brian Kennedy QC – Swift, Philip EA.2018.0088 (190219) PTA Ruling

  • the Judge was not satisfied that there was an error of law in the Decision.
  • It is not possible to appeal simply because you do not agree with the Tribunal’s decision.
    the Judge concluded that the grounds are not arguable

Nevertheless, the Authority wasted yet more taxpayers money on progressing an appeal – seemingly desperate to have me deemed ‘vexatious’ in the hope of undermining my submissions and allegations.

20/03/2019, Sean Kelsey submitted an appeal to the Upper Tribunal and CHRISTINA MICHALIS QC
Counsel for Highways England presented the second set of ground to appeal – Swift Appeal 0088 Grounds of Appeal (UT permission application).  Once again, there was no mention that my request was being argued as ‘vexatious’ yet the Authority could have avoided the request ifs they could had, on receipt of the first request/review (of 175?) about rates, advised ‘not held’ as opposed to ensuring there was son doubt as to their existence; the Authority had been clear, on multiple occasions; Third-Party repairs costs were HELD but Commercially Sensitive’.

13/09/2019 the Upper Tribunal (GIA/793/2019) dismissed all appeal grounds. The decision was issued 04/10/2019 and can be read here

The rates I was seeking should have been provided (read more here) but of course, after the 13/12/2018, the Authority had taken the ‘not held’ stance … I received nothing.

It appears the Authority’s intentions were to have me deemed vexatious in the hope of putting an end to my investigation of their complicity in state-enabled exaggeration, contract non-compliance and fraud.  The Tribunal removed their options, the one remaining exemption … ‘not held’; that they would rather face the ignominy of failing to agree on any costs with a contractor since 2012 than release the data that would demonstrate their misrepresentation, protection, impotence and potentially malfeasance.

But obviously schedules of rates existed and it is difficult to keep their existence secret as evidenced by recent disclosures that have the above request to be resurrected – read more here