Area 9 Rates for Below £25,000 claims

Roedd y cais yn rhannol lwyddiannus.

Dear Highways England Company Limited,

I have been supplied what I understood were the only DCP rates held by Highways England, the 'people rates' (see tribunal EA/2019/0390). However, your lawyers Shakespeare Martineau have explained these rates do not represent the extent of people rates for DCP works, rather that the disclosed rates:

i. have no bearing on claims against third parties
ii. are the contractually agreed rates for repairs over £25,000.00

This is at odds with my understanding, with the evidence presented to tribunal EA/2019/0390, it is a new disclosure.

1. I am seeking all information in support of the above position ('i' and 'ii' above).

2. If the above is incorrect, please clearly acknowledge this - action that could have occurred between my originally raising this with you (03/09/2021) - and confirm the people rates apply to all claims in Area 9.

3. If the above is correct, I am seeking the people rates (and those for plant, TM and materials) that differ from those disclosed for tribunal EA/2019/0390 which it appears will comprise:

a. The rates for sub £10,000 claims and if they differ:
b. The rates for £10,000 to £25,000 claims

Please also advise:

4. Whether any of the above schedules of rates (supplied for the Tribunal, sub £10k or £10k to £25k), are subsidized in any way and if so:
5. How the subsidy is applied – in a format that I may reverse engineer said subsidy

Yours faithfully,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr P Swift

Thank you for your request relating to Area 9 Rates for Below 25,000
claims dated 08/09/2021 16:45:03. 

The due date for issuing a response is 06/10/2021.

Please feel free to contact our team if you have any queries quoting
FOI/2401 in any future communications

Kind regards

 

FOI Advice

foi@highwaysengland.co.uk,

 

Dear Mr P Swift

Area 9 Rates for Below 25,000 claims

Thank you for your information request dated 08/09/2021 regarding Area 9
Rates for Below 25,000 claims. We have dealt with your request under the
provisions of the Freedom of Information Act 2000.

You asked -

 

Dear Highways England Company Limited,

I have been supplied what I understood were the only DCP rates held by
Highways England, the 'people rates' (see tribunal EA/2019/0390). However,
your lawyers Shakespeare Martineau have explained these rates do not
represent the extent of people rates for DCP works, rather that the
disclosed rates:

i. have no bearing on claims against third parties

ii. are the contractually agreed rates for repairs over £25,000.00

This is at odds with my understanding, with the evidence presented to
tribunal EA/2019/0390, it is a new disclosure.

1. I am seeking all information in support of the above position ('i' and
'ii' above).

2. If the above is incorrect, please clearly acknowledge this - action
that could have occurred between my originally raising this with you
(03/09/2021) - and confirm the people rates apply to all claims in Area 9.

3. If the above is correct, I am seeking the people rates (and those for
plant, TM and materials) that differ from those disclosed for tribunal
EA/2019/0390 which it appears will comprise:

a. The rates for sub £10,000 claims and if they differ:

b. The rates for £10,000 to £25,000 claims

Please also advise:

4. Whether any of the above schedules of rates (supplied for the Tribunal,
sub £10k or £10k to £25k), are subsidized in any way and if so:

5. How the subsidy is applied – in a format that I may reverse engineer
said subsidy

Yours faithfully,

Mr P Swift
 

Please see below for the responses to the questions you have raised.

With regard to question 1, 2 and 3, which relate to items (i) & (ii), the
people rates are intended to provide a forecast of defined cost for the
cost of people charged to the contract where the recovery is on a Cost
Reimbursable and Defined Cost basis, this includes above threshold third
party claims, which is determined by Annex 23 of the Contract. The people
rates reconciliation does not contractually change the entitlement to full
recovery of Defined Cost at Final Account, the purpose of the exercise is
to establish a forecast of defined cost values which represent an
ongoing Defined Cost of people as set out in the Schedule of Cost
Components.

Furthermore for Q3, we can confirm the most current people rates have been
supplied following the outcome of the tribunal in our response under FOI
101916 to your request of the 10 March 2021 and that these are the rates
used for services which are recovered on a Cost Reimbursable and Defined
Cost basis including above threshold third party claims.

With regards to questions 4 and 5, as was explained in our response under
FOI 102090 to your request on the 19 April 2021, cross-subsidies are
prohibited in Area 9 Asset Support Contract

The service provided by the contract however, is paid for through a
combination of the various payment and receipt mechanisms and these
include; lump sum, design factors, contract management factors, target
price with pain/gain share for schemes and cost reimbursement. All
services and costs related to the contract benefit from the wider contract
arrangement.

In addition, some costs involved in operating the strategic road network
in England are provided directly by Highways England, and other parties,
and these are not currently charged to the contract. Examples are Highways
England management and administration, operational services (such as
Traffic Officers), and facilities (such as depots and compounds) owned by
Highways England.

If you are not satisfied with your response you may ask for an internal
review within 40 working days of receiving the response, by replying to
this email. Our internal review process is available at:

[1]https://www.gov.uk/government/organisati...

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:
[2][email address]

            Information Commissioner’s Office

            Wycliffe House

            Water Lane

            Wilmslow

            Cheshire

            SK9 5AF

Please remember to quote reference number FOI/2401 in any future
communications about this response.

Kind regards

 

FOI Advice

 

References

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2. mailto:[email address]

Dear Sirs,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highways England Company Limited's handling of my FOI request 'Area 9 Rates for Below £25,000 claims'.

Whilst I thank you for your response, this does not specifically address the information request. I wanted to know if I had been misinformed by lawyers, Shakespeare Martineau, instructed on National Highways (formerly Highways England) or Kier Highways behalf. To restate the question:

Shakespeare Martineau have said these rates do not represent the extent of people rates for DCP works, rather that the disclosed rates:
i. have no bearing on claims against third parties
ii. are the contractually agreed rates for repairs over £25,000.00

You have now explained that the ‘people rates’ are directly relevant to the defined costs basis of contract re-imbursement, providing an estimated pricing schedule which is then adjusted retrospectively via a pain and gain mechanism. Therefore, please confirm or further clarify:

1. That the people rates provided to the Tribunal EA/2021/0082 do have a bearing on DCP claims against Third Parties

2. They are not the contractually agreed people rates for repairs over £25,000

I am concerned that once again, your Authority appears unable to provide a straight response to simple requests for information, and if previous given responses are wrong, to apologise.

Regarding 4 and 5, and the rate ‘subsidy’, I am advised by your lawyers that the rates provided to the Tribunal EA/2021/0082 are ‘subsidised’. However, the ‘people rates’ as disclosed to Tribunal EA/2021/0082 are:
a) agreed base rates i.e., cost.
b) not subsidised.
c) applied over £10,000
d) uplifted by Kier by use of a fee.

You state ‘ cross-subsidies are prohibited in Area 9 Asset Support Contract’. Therefore, please give a straight ‘yes’ or ‘no’ answer to this question:

3. Are the people rates disclosed to the Tribunal EA/2021/0082 in any way subsidised?

I remind you that you repeatedly stated defined costs (people rates) were a definition not giving rise to any actual table or schedule of rates.

It now seems clear that there are derived schedules of rates as to what is anticipated by HE to be recovered under the contract, and then possibly subject to a ‘pain/gain’ adjustment.

I am aware, having previously asked, that no such adjustments have taken place. Accordingly, the ‘people rates’ are the de facto schedule of rates as used to calculate re-imbursement to appointed contractors.
They are also a specific set of figures established at least as early as 2015.

4. This request is designed to capture the £10,000 to £25,000 as, to date, according to your lawyers, I only posses above £25,000 rates.

Hopefully my outstanding requests can now be easily understood and answered.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/a...

Yours faithfully,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr P Swift
 
Response: Internal Review in relation to request FOI/2401
 
 
Further to your e-mail, which was received on 08/09/2021 I have been asked
to undertake a review of the response to your request for information
under the Freedom of Information Act 2000
 
You were dissatisfied with the response to your request because you felt
it did not address the information request
 
How I have reviewed your request:
 
I have now had the opportunity to review the request and the response, and
discuss this with the relevant parties and I have found that the response
provided on the 4 October 2021 addressed all of the questions raised in
your original request of 3 September 2021. For clarity though, on which
aspects of the response from the 4 October address each of your
questions, I have set this out again below.
 
Questions 1 and 2 were addressed in the first paragraph of our response
which set out what the people rates in Area 9 were intended to be used for
and that it included above threshold claims, the value of which is set out
by Annex 23 of the contract which you are already in possession of.
 
Question 3 is also addressed in the first paragraph and also in the
second paragraph where it was confirmed that you were in possession of the
most current people rates via our response under FOI 101916. Essentially
there are no others to provide.
 
And finally questions 4 & 5 were dealt with in the final 3 paragraphs of
the response which explained that we had already addressed the point of
subsidies in our response to your request FOI 102090, but was explained
again in the final 2 paragraphs.
 
Conclusion
 
In conclusion I do not agree with your submission that the original
response of the 4 October 2021 did not address your request but have
sought to clarify, above, which parts of the response address which
questions. Given this I am satisfied that no further action is required by
National Highways regarding this case. 
 
If you remain unhappy with the outcome of your internal review, you are
entitled to refer your complaint to the Information Commissioner's Office
(ICO) for a decision.
 
The ICO can be contacted at: 
 
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 
[1]http://www.ico.org.uk
 
Kind Regards

Jonathan Drysdale

Freedom of Information Officer (HE)

Digital Services

National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [2]http://highwaysengland.co.uk

References

Visible links
1. http://www.ico.org.uk/
2. http://highwaysengland.co.uk/

Dear [email address],

Please explain the relevance and reference to a threshold of £25,000 conveyed by lawyers common to yourselves and Kier.

I have located no such reference to a threshold of £25,000.

If a statement made in error i.e. incorrect, please advise accordingly.

Yours sincerely,

Mr P Swift

FOI Advice,

Dear Mr Swift,

Further to your correspondence following the internal review for FOI/2401,
which we can confirm has been handled under normal business practices and
not in accordance with the Freedom of Information Act, we are now in
position to address your query of

 

Please explain the relevance and reference to a threshold of £25,000
conveyed by lawyers common to yourselves and Kier.

I have located no such reference to a threshold of £25,000.

If a statement made in error i.e. incorrect, please advise accordingly.

 

The only reference to £25,000 that National Highways is aware of is that
which David Ash made in his witness statement for Appeal EA/2019/0390
which you already have a copy of.

 

We asked Shakespeare Martineau if they had made comments in relation to
claims above £25,000 being handled differently to other above threshold
claims. They have confirmed the only mention they were aware of is the
£25,000 from David Ash’s witness statement.

 

Shakespeare Martineau state they have no recollection or record of making
the comments you have put forward. As such we can only conclude that there
has been some misunderstanding on this point. 

 

They have indicated that if you have and provide specific examples of what
they are alleged to have said they will respond in relation to them with a
better understanding of the full context.

 

We believe you would be best off approaching Shakespeare Martineau
directly about this as it in relation to comments they are alleged to have
made to yourself and National Highways has confirmed its position on what
the reference to £25,000 is in relation to.

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Digital Services

National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [1]https://nationalhighways.co.uk/ 

 

You can make new FOI requests and review published responses by
visiting [2]https://foiform.highwaysengland.co.uk/

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
disclosure, reliance upon or other use of the contents of this email is
strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[3]https://www.gov.uk/government/organisati... |
[4][email address]

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References

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4. file:///tmp/[email address]

Dear Mr Drysdale,

A specific example is as follows, your lawyers having written 02 September 2021 14:34
Subject: RE: Your ref M-MT-087664/DA, CMA Ref Z09C330 [SHMA-ACTIVE.FID3579693], as follows:

1. 'We note your reliance upon the statement of Mr David Ash but fail to see how this has any relevance'.
2. 'The statement confirms (at paragraph 3) that it relates to claims over £25,00.00 (when this claim is not) and the rates have no bearing on claims against third parties'.
3. 'The rates mentioned are the contractually agreed rates for repairs over £25,000.00 and do not necessarily represent the reasonable cost of repair.'

I have numbered the paragraph statements (above)for ease of reference.

It is your lawyers who have not simply disclosed the existence of a new threshold (25k) and undermined what has bene presented to a Tribunal (and disclosed to me) but have also reinforced that which you state does not exist; ‘contractually agreed rates’.

I am criticized by you for making requests yet here is an example of why I need to; either the left does not know what the right is doing (and has failed to rectify their error) or SHMA has disclosed a practice you have kept from me. I should not have to be making requests to unravel contradictions of others.

I believe a full, unequivocal, clear explanation is required together with an apology.

To address the above:

A. I understand the rates disclosed by Mr Ash, ‘defined costs’ a.k.a. ‘people rates’ are for BELOW £10,000 threshold i.e. all claims. Is this correct?
B. I understand the rates disclosed by Mr Ash, ‘defined costs’ a.k.a. ‘people rates’ are for ABOVE the £10,000 threshold i.e. all claims. Is this correct?
C. How are the rates Mr Ash provided NOT relevant to claims?
D. Why do the rates Mr Ash provided have no bearing on claims against third parties'?

SHMA are referring to a new repair-rates threshold of £25,000.00 ('2' above); stating that Mr Ash’s rates are for over £25,000.00. I agree, being over £10,000, claims for £25,000 and above are naturally addressed by the rates. However:

E. What rates, if not Mr Ash’s ‘people rates’ are to be used between £10,000 and £25,000
F. What rates, if not Mr Ash’s ‘people rates’ are to be used below £10,000 :
a. Currently
b. Pre-deed of variation application (01/2019)

You have 'contractually agreed rates’ for claims over £25,000.00'

G. I expect to be provided these 'contractually agreed rates’ or have the statement explained.

Referring me to your lawyers, SHMA / Corclaim / Shakespeare Martineau is noted but they have previously refused to respond. Does your contract extend the FoIA to Shakespeare Martineau?

Yours sincerely,

Mr P Swift

Dear Mr Drysdale,

Please advise by when I can anticipate a response.

Your lawyers are not subject to FoIA, I have sought the information from yourselves and the request relates to above £10k claims.

If, as appears to be the case, your lawyers have erred, please confirm i.e. respond that Mr Ash's rates apply to all claims over £10,000 and that there is no additional 'band' of £10,000 to £25,000.

Thank you ,

Mr P Swift

FOI Advice, National Highways Limited

Dear Mr Swift,

Thank you for your e-mail of 16 December 2021 and your e-mail of the 20 January 2022 seeking an update on the response.

We have raised your correspondence with Shakespeare Martineau and they have confirmed that the statement they have made to you in their correspondence is incorrect. Unfortunately, the claims handler has misunderstood and misinterpreted Mr Ash's statement.

Shakespeare Martineau have apologised for this and we would like to extend this apology to yourself for any confusion it may have caused.

I believe the above addresses your enquiry, because the additional questions have been made on the basis of an erroneous statement by SHMA. For completeness however, I have provided comment on each question below to provide clarity. This is done in the order they were set out.

To address the above:

A. I understand the rates disclosed by Mr Ash, 'defined costs' a.k.a. 'people rates' are for BELOW £10,000 threshold i.e. all claims. Is this correct?

National Highways (NHs) response -

Area 9 people rates were not designed or agreed for use in below £10,000 threshold green claims.

Below threshold claims are a matter between Kier and the negligent driver/insurance company.

If a green claim is disputed and not resolved through negotiation by the two parties there is a robust independent process where issues in particular those related to reasonableness of cost may be referred to a court for resolution by a trial judge. This is in line with the guidance provided by the courts in Coles v Hetherton.

It is our understanding that the vast majority of green claims are settled through negotiation with only a relatively modest number requiring the involvement of the courts.

B. I understand the rates disclosed by Mr Ash, 'defined costs' a.k.a. 'people rates' are for ABOVE the £10,000 threshold i.e. all claims. Is this correct?

NHs response -

Under the ASC, the service is paid for through a combination of the various payment mechanisms under the contract. These payment mechanisms include; lump sum, design factors, contract management factors, target price with pain/gain share for schemes and cost reimbursement. The various services and their costs, benefit from the payments made under the wider contract arrangement.

Defined Cost is a defined term as set out in the Area 9 ASC Conditions of Contract which have previously provided. As previously explained he Defined Cost does not include a set of rates.

In Area 9 notional people rates were agreed and formally signed off as a pre-estimate of people costs averaged for a small number of people in grade bands to be used for a period of time.
These are intended to help ensure when the Defined Cost for people is reconciled and finalised towards the end of the life of 5 to 8 year contract for the Final Account, there is not a large adjustment between what had been paid previously and what Kier are entitled to under the contract as "true or final" Defined Cost.

Notional people rates in Area 9 are used by NH to pay invoices for cost reimbursable work including scheme work (using pain/gain share) and above £10k threshold repairs. The final people costs are established through the reconciliation process. The easiest way to explain the people rates may be to think of them as a mechanism of paying on account during the contract term.

Notional people rates are not a contractual requirement

C. How are the rates Mr Ash provided NOT relevant to claims?

NHs response -

Please see responses to A and B above

In addition to services and their costs benefiting from the wider contract arrangement in payment terms, other costs involved in operating the strategic road network are provided directly by National Highways and these are not currently charged to the contract.

Examples are National Highways management and administration, operational services (such as Traffic Officers incident response and control room incident management), and facilities (such as depots, compounds and land) owned by National Highways.

The people rates alone therefore do not represent the l cost for people resources providing services and therefore they are not considered relevant to the below threshold claims.

D. Why do the rates Mr Ash provided have no bearing on claims against third parties'?

NHs response -

Please see responses to A, B and C above.

SHMA are referring to a new repair-rates threshold of £25,000.00 ('2' above); stating that Mr Ash's rates are for over £25,000.00. I agree, being over £10,000, claims for £25,000 and above are naturally addressed by the rates. However:

In respect to SHMA comments they have confirmed these are incorrect

As far as National Highways can ascertain SHMA were simply attempting to highlight the claims David Ash considers (i.e. those over £25,000 that are part of the quality assurance process) and hence are the main focus of his witness statement.

David Ash's statement explains the relevance of £25,000. Mr Ash provided this statement of part of tribunal proceedings and confirmed his statement in the Tribunal.

E. What rates, if not Mr Ash's 'people rates' are to be used between £10,000 and £25,000

NHs response - See B above.

F. What rates, if not Mr Ash's 'people rates' are to be used below £10,000 :

a. Currently

NHs response -

In accordance with the Deed of Variation (DoV)

A Deed of Variation was formally agreed between National Highways and Kier in Area 3 and Area 9 and applies to below £10,000 threshold repairs from January 2019 until contract completion.

This was in order to bring the contracts into alignment, to better reflect how the courts assess reasonable cost under the law of tort and to improve transparency.

b. Pre-deed of variation application (01/2019)

NH response -

For below threshold claims it was and remains a matter for Kier to demonstrate that what they are claiming for negligent damage to SRN is reasonable.

There is a robust independent process where any issues in particular those related to reasonableness of cost may be referred to a court for resolution by a trial judge.

The vast majority of claims are settled through negotiation and only in a modest number of cases is it necessary to resort to the use of courts for a judge to decide if the cost is reasonable.

You have 'contractually agreed rates' for claims over £25,000.00'

NH response -

We recognise the term 'contractually agreed rates' from county court judgments for below threshold claims. We consider the term misleading out of context. It oversimplifies the complex nature of the payment mechanisms under the ASC of which green claims is a very small part of the whole contract.

As you are aware our respective positions around "contractually agreed rates" have been considered independently in a number of ICO decisions and First Tier Tribunals decisions.

The courts dealing with claims have clearly stated that there is no single way of assessing the diminution in value of an asset damaged by a negligent party and there is a range of cost that reflect reasonable cost and it is for a trial judge to rule if costs are reasonable.

The courts have also correctly understood that services, rates and costs in the ASC benefit from the wider contract arrangement.

Finally, NH do not charge for a number of costs in above threshold claims.

For clarity though, there is no separate threshold for handling claims over £25,000. The only threshold that exists for how claims are handled in ASC contracts is set at £10,000 which we are aware you know relates to whether the claim is pursued by the Service Provider or by NH.

G. I expect to be provided these 'contractually agreed rates' or have the statement explained.

NH response -

This statement is incorrect. As stated above, our respective positions around "contractually agreed rates" have been considered independently in a number of ICO decisions and First Tier Tribunals decisions.

We have previously, on a voluntary basis provided to you people rates for Area 9, once we were aware of their existence in preparing witness statements for Tribunal 0390 as we considered these relevant to your request about Area 9.

We also made you are aware that in June 2019 CECA -30% it was agreed between National Highways and Kier as a proxy for market testing plant and equipment for scheme work that benefits from the wider commercial arrangement. This includes payment by NH for repairs above the £10,000 threshold.

You are also aware the full benefits of the wider contract arrangement and costs not charged to the contract is currently passed on directly to negligent drivers and insurance companies for above threshold repairs.

This means above £10,000 threshold claims fall well within the range of what is considered reasonable by the courts

It also makes comparison between above and below threshold claims both irrelevant and futile.

Referring me to your lawyers, SHMA / Corclaim / Shakespeare Martineau is noted but they have previously refused to respond. Does your contract extend the FoIA to Shakespeare Martineau?

NHs response -

As a private entity SHMA are not subject to the FOIA. Our contracts contain standard clauses in respect of the FoIA.

Your allegation that SHMA refuse to respond appears at odds with the request for NH to comment on their response to you.

FoIA is not the intended or the correct process to resolve commercial matters between two parties when there is a robust alternative process which is supported by the courts

We believe that the above explanation and responses to each your questions now allows us draw this matter to a conclusion and we hope that you of the same opinion.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (NH)
Digital Services
National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: https://nationalhighways.co.uk/

You can make new FOI requests and review published responses by visiting https://foiform.highwaysengland.co.uk/

dangos adrannau a ddyfynnir

Dear FOI Advice,
I have yet to receive the apology form Shakespeare Martineau solicitors. Please forward asap
Yours sincerely,
Mr P Swift

FOI Advice, National Highways Limited

Dear Mr Swift,

Thank you for your e-mail.

Regarding the point you have raised, as per my response on 11 February 2022, Shakespeare Martineau apologised and National Highways extended the apology from them to yourself as part of that response. At no time was there an indication that they would contact you separately on this.

Therefore, we would advise that if you wish to seek an apology from Shakespeare Martineau that you contact them directly to do so.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (NH)
Digital Services
National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: https://nationalhighways.co.uk/

You can make new FOI requests and review published responses by visiting https://foiform.highwaysengland.co.uk/

dangos adrannau a ddyfynnir

Dear FOI Advice,

I anticipated being provided a copy of said apology - please could you forward whatever you possess from Shakespeare Martineau solicitors. I do not believe it unreasonable for this to have been sent to me directly rather than passed secondhand

Yours sincerely,

Mr P Swift

Dear FOI Advice,

Please provide a copy of the exchanges with Shakespeare Martineau to include the apology issued.

I have yet to receive an apology from SHMA for their misunderstanding of the process/contract.

Yours sincerely,

Mr P Swift

foi@highwaysengland.co.uk,

 

Dear Mr P Swift

Thank you for your request relating to a Copy of e-mail containing apology
from Shakespeare Martineau regarding misunderstanding in Area 9 dated
25/03/2022. 

The due date for issuing a response is 25/04/2022.

Please feel free to contact our team if you have any queries quoting
FOI/3440 in any future communications

Kind regards

 

FOI Advice

 

You can make new FOI requests and review published responses by
visiting [1]https://foiform.highwaysengland.co.uk/

References

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foi@highwaysengland.co.uk,

1 Atodiad

 

Dear Mr P Swift

Copy of e-mail containing apology from Shakespeare Martineau regarding
misunderstanding in Area 9

Thank you for your information request dated 25/03/2022 regarding Copy of
e-mail containing apology from Shakespeare Martineau regarding
misunderstanding in Area 9. We have dealt with your request under the
provisions of the Freedom of Information Act 2000.

 

You asked -

 

Dear FOI Advice,

 

I anticipated being provided a copy of said apology - please could you
forward whatever you possess from Shakespeare Martineau solicitors.  I do
not believe it unreasonable for this to have been sent to me directly
rather than passed secondhand

 

Yours sincerely,

 

Mr P Swift

 

I can confirm that we hold the information you have requested.

Information provided

The e-mails from Shakespeare Martineau are attached. 

Please note that personal information has been redacted under Section
40(2) of the Freedom of Information Act 2000.

 

If you are not satisfied with your response you may ask for an internal
review within 40 working days of receiving the response, by replying to
this email. You can learn more about the internal review process [1]here.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted [2]here or via
the address below -

            Information Commissioner’s Office

            Wycliffe House

            Water Lane

            Wilmslow

            Cheshire

            SK9 5AF

Please remember to quote reference number FOI/3440 in any future
communications about this response.

Kind regards

 

FOI Advice

 

You can make new FOI requests and review published responses by
visiting [3]https://foiform.highwaysengland.co.uk/

References

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2. https://ico.org.uk/make-a-complaint/
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Gadawodd Mr P Swift anodiad ()

The Authority's 11/02/2022 statements are queried here:
https://www.whatdotheyknow.com/request/c...

Dear [email address],

Whilst I thank you for the disclosure, I asked for the ‘exchanges’ with Shakespeare Martineau i.e., to and from. If these could be provided.

The names of managers should be displayed (I do not believe they should be concealed) and at the very least, I would expect initials, as used when referring to me, to be displayed
In your responses to the FoIA you have named Mr. Ash. It appears this has been redacted from the disclosed email exchanges. Please reinstate the names to ensure I do not misunderstand the exchanges.

06/12/2021 SHMA wrote:
‘We’ve seen this query before and I am sure HE/NH have dealt with it previously’
Please ensure I am sent all information relating to the historical raising of the issue and ‘dealing with it’. It is concerning to note that SHMA’s adopt a ‘Chinese whispers’* approach to claims handling and that despite my raising the concern previously it was seemingly permitted to continue beyond the original consideration, not addressed.

The reference 20/12/2021 to my questions cannot be understood but considering it a FoIA approach appears incorrect. As above, please provide these exchanges to include what was said about the reference, the ‘internal QA check on that category of cases’ and ‘the rest of the below’ to enable me to understand the context.

It would also assist to be provided the guidance referred to which it is apparent is in relation to above £10,000 claims only.

Whilst the qualified ‘if this has created problems’ apology SHMA made to you is noted, this was not conveyed by you promptly and only elicited by the use of FoIA. I trust you will instruct SHMA to apologise to us directly

Yours sincerely,

Mr P Swift

*Players form a line or circle, and the first player comes up with a message and whispers it to the ear of the second person in the line. The second player repeats the message to the third player, and so on. When the last player is reached, they announce the message they heard to the entire group. The first person then compares the original message with the final version. Although the objective is to pass around the message without it becoming garbled along the way, part of the enjoyment is that, regardless, this usually ends up happening. Errors typically accumulate in the retellings, so the statement announced by the last player differs significantly from that of the first player, usually with amusing or humorous effect. Reasons for changes include anxiousness or impatience, erroneous corrections, and the difficult-to-understand mechanism of whispering. The game is often played by children as a party game or on the playground. It is often invoked as a metaphor for cumulative error, especially the inaccuracies as rumours or gossip spread,[1] or, more generally, for the unreliability of typical human recollection.
https://en.wikipedia.org/wiki/Chinese_wh...

foi@highwaysengland.co.uk,

1 Atodiad

 

Dear Mr P Swift
 
Response: Internal Review in relation to request FOI/3440
 
 
Further to your e-mail, which was received on 25 April 2022 I have been
asked to undertake a review of the response to your request for
information under the Freedom of Information Act 2000 (FOI/3440).
 
You were dissatisfied with the response to your request because you only
received the e-mails from Shakespeare Martineau and not the ones emanating
from National Highways on the matter. You also believed that the
redactions for personal information were not correct and names should have
been included or initials
 
 
How I have reviewed your request:
 
I have now had the chance to review your request and the response issued,
and acknowledge that although in your original e-mail of the 25 March 2022
you asked 'please could you forward whatever you possess from Shakespeare
Martineau solicitors' which indicates that only the e-mails from
Shakespeare Martineau were requested, you did follow that up with a second
e-mail on 6 April 2022 asking 'Please provide a copy of the exchanges with
Shakespeare Martineau to include the apology issued' which looks to extend
the request to National Highways e-mails to Shakespeare Martineau.
Therefore, please see attached for the full bundle of e-mails to include
those sent by National Highways. Please note that personal information has
been redacted under Section 40(2) of the Freedom of Information Act 2000
and also that the first e-mail in the chain has been redacted completely
as it is not in scope of the request because it is not correspondence
between National Highways and Shakespeare Martineau.
 
Reference to the above exemption for personal information moves us neatly
on to your other complaint about the response received, which are that the
redactions should not have occurred or initials should be provided.
However, I am satisfied that the exemption has been correctly applied and
the information can be redacted, and we are under no obligation to provide
initials in their place. I do apologise that initials that potentially
referred to yourself were left in the original bundle provided, they were
simply missed during the redaction process, they have been redacted in the
new bundle provided here. 
 
With regard to asking Shakespeare Martineau to apologise directly to you,
this is not National Highways place to do so and believe that if you have
a complaint about Shakespeare Martineau or wish to seek an apology from
them you should take that up directly with them as was indicated in my
e-mail to you on the 25 March 2022.
 
 
Conclusion
 
In conclusion, I am satisfied that Section 40(2) of the Freedom of
Information Act 2000 has been correctly applied to make redactions for
personal information, however the response to the original request did not
include the e-mails emanating from National Highways as the follow-up
e-mail from the 6 April appeared to request so please accept my apologies
for that. However, as these e-mails have now been included in the updated
bundle provided with this review I do find that there is now no further
action required by National Highways regarding request reference
FOI/3440.   
 
If you remain unhappy with the outcome of your internal review, you are
entitled to refer your complaint to the Information Commissioner's Office
(ICO) for a decision.
 
The ICO can be contacted at [1]https://ico.org.uk/make-a-complaint/ or via
the address below -
 
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF 
[2]http://www.ico.org.uk
 
Kind Regards

Jonathan Drysdale

Freedom of Information Manager

Digital Services

National Highways | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [3]https://nationalhighways.co.uk/ 

 

You can make new FOI requests and review published responses by
visiting [4]https://foiform.highwaysengland.co.uk/

References

Visible links
1. https://ico.org.uk/make-a-complaint/
2. http://www.ico.org.uk/
3. https://nationalhighways.co.uk/
4. https://foiform.highwaysengland.co.uk/