Contractor Charges, Recoveries & Lump-Sum Payments for DCP Works

Response to this request is long overdue. By law, under all circumstances, Highways England Company Limited should have responded by now (details). You can complain by requesting an internal review.

Dear Highways England Company Limited,

I understand there exists a relationship between the amounts charged & recovered by your contractors and the monthly lump-sum they are paid by Highways England; that all contractors reconcile their costs annually against their recoveries. If the proportion of recoveries exceeds expectations an assessment would be made and the Lump Sum payment would be reduced.
This necessarily relates to sub-threshold (£10,000 matters).

I ask to be provided all information in respect of this arrangement and it application since 2012 to include, but not be restricted to:

1. The areas in which this arrangement exists
2. All information about this process; the contract extracts relating to the methodology, the calculation, how it is applied etc.
3. What information the contractor is to submit for reconciliation and the description of said data i.e. whether this comprises ‘defined costs’ (a.k.a. ‘base rates’ or DCP Rates’ of ‘notional rates’) , the Third Party Claims Overhead etc.
4. How Highway England determine the submitted information is correct, true and accurate
5. The last submission, reconciliation and assessment for each area

Specifically, with regard to Area 9:

6. The investigation and reconciliation of the figures passed to your Green Claims manager insofar as the submission of figures by Kier Highways was concerned, namely:
a. Defined cost
b. TPCO
c. Total
d. Recovery
e. remarks

Specifically, with regard to HE references: 767 723:

7. How the information was reconciled, considered to be accurate prior to disclosure
8. The action taken subsequently to determine the accuracy (or otherwise)of the records.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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Khan, Rizwana, Highways England Company Limited

1 Attachment

Dear Mr Swift

Please find attached our response to your FOI request below.

If you have any further questions then pls ensure you quote the ref 770,263 in all future correspondence.

Regards

Rizwana Khan
Business Information & Assurance Team
Commercial & Procurement
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT
Tel: +44 (0) 300 4702482 | Mobile: + 44 (0) 773 898 0858
Web: http://www.highways.gov.uk
GTN: 0300 470 2482

show quoted sections

Mr P Swift left an annotation ()

HE response (above):
Thank you for your request of 24th April where you asked several questions relating
to Contractor Charges, Recoveries & Lump-Sum Payments for DCP Works.
During the tender process for Asset Support Contracts a Lump Sum payment is bid
by suppliers to cover third party damage where the driver remains unidentified. At
the point the contract is awarded to a service provider this sum becomes contractual
and the payment remains part of the Lump Sum payment for the duration of the
contract, with changes only made relating to normal annual adjustments to the Lump
Sum for example, to account for inflation.
Your remaining numbered questions have not been responded to as they are based
on an incorrect premise.

Dear Khan, Rizwana,
the premise upon which i am requesting information is that related to the pain / gain arrangement and the need for your contractor(s) to submit claims costs and recovery amounts for reconciliation. As an example of the basis upon which I have made this approach, please see the below FoIA reply extract issued by Highways England.
The submission of costs and recoveries is clearly required by Highways England and there is obviously reason for this.

Mr P Swift

Highways England Ref: FOI 743,153
All contractors reconcile their costs annually against their recoveries. If the proportion of traced incidents exceeds expectations an assessment would be made and the Lump Sum payment would be reduced. However, no contractor has ever been in the position where the proportion of traced claims exceeds these assessments and there are various factors for this. The main one being not all damage linked to a driver is reported by the driver.

Khan, Rizwana, Highways England Company Limited

1 Attachment

Dear Mr Swift

Thank you for your email request below.

Please find attached our response.

If you have any further questions then pls ensure you quote ref 770,466 in future correspondence.

Regards

Rizwana Khan
Business Information & Assurance Team
Commercial & Procurement
Highways England | Lateral | 8 City Walk | Leeds | LS11 9AT
Tel: +44 (0) 300 4702482 | Mobile: + 44 (0) 773 898 0858
Web: http://www.highways.gov.uk
GTN: 0300 470 2482

show quoted sections

Mr P Swift left an annotation ()

Highways England response:

You will be aware NEC Option C Target Price with a pain/gain share is used by Highways England for most scheme work although not used for Green Claim repairs.
This was a direct result of challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers. NEC Option E cost reimbursable (or Defined Cost plus Fee) approach is therefore used for DCP repair work. I refer you to a previous FOI 738,640 of 13 July 2016 published on the .GOV website
at the following link.
https://www.gov.uk/government/publicatio....

In FOI 738,640 the relevance of the 1153 Traced-dentified and Un-identified incident numbers for tender purposes in Area 3 Asset Support Contract was explained in detail i.e. “This was a notional number that the tenderers used to build up their tender submission for the sub £10,000 claims. It was not envisaged as the actual future number of claims but simply a benchmark for submitted tenders by Highways

England.” Also, that ‘’the 1153 number was used by KHL as a basis for averaging some cost elements. As stated, this process has now been reviewed and revised.
For clarity, it is understood that any contentious or unsettled claims - priced under the old methods - have been resubmitted under the new process, as agreed with the insurance industry.”

It is not practical for Highways England nor our contractors to establish a precise number of damage incidents on our network and hence the proportion of incidents caused by traced and un-identified drivers. While some un-identified driver damage incidents can be obvious, many others by their nature are not and the damage to the asset may not be established until sometime after the event. Un-identified driver
damage incidents tend to be those causing the least obvious damage to both our asset and also the vehicle involved as evidenced by the fact the vehicle has driven
way from the scene and off the network unnoticed.
The Lump Sum in Asset Support Contracts remains unchanged throughout the life of the contract apart from annual adjustments due to indexation and other factors (eg tendered efficiencies, etc.).

DCP cost and recovery information is provided by suppliers when required in line with the contract but this is not generally provided on an incident by incident basis.

Dear Khan, Rizwana,

Highways England Ref: FOI 743,153

I am seeking an internal review of your response 14/05/2019.

Whilst I thank you for your reply of 12/06/2019, this raises more questions than it answers. I note you hold information pertinent to my request of 24/04/2019. Yet 14/05/2019, you refused to address the questions stating they are based on an incorrect premise.

Your latest response indicates my premise was / is sound.

I accept question ‘1’is in the present tense i.e. I asked about the Areas in which this process EXISTED and the correct answer, by reference to your latest reply, is it NO LONGER does. However, as there WAS such an arrangement, my subsequent questions are, in the main (save some should be past-tense) valid.

For example, whether or not the process is CURRENTLY in place, it WAS and Q5 seeks ‘The last submission, reconciliation and assessment for each area’. You hold information in respect of this. As at 25/10/2016, the process was in place, as evidenced by your FoIA response FOI 743,153. Therefore information should have been provided.

Q6 similar requires no amendment to avoid semantics.

I asked ' to be provided all information in respect of this arrangement and it application since 2012 i.e. I have sought historical information.

The process was in place until at least 10/2016 when a previous FoIA response (to which I have referred) disclosed this.

Why have I been provided no information form the contract commencement to the date the process terminated?

I ask to be provided all information in respect of this arrangement and it application since 2012 to include, but not be restricted to:

1. The areas in which this arrangement existED
2. All information about this process; the contract extracts relating to the methodology, the calculation, how it is applied etc.
3. What information the contractor WAS to submit for reconciliation and the description of said data i.e. whether this compriseD ‘defined costs’ (a.k.a. ‘base rates’ or DCP Rates’ of ‘notional rates’) , the Third Party Claims Overhead etc.
4. How Highway England determineD the submitted information WAS correct, true and accurate
5. The last submission, reconciliation and assessment for each area

Specifically, with regard to Area 9:

6. The investigation and reconciliation of the figures passed to your Green Claims manager insofar as the submission of figures by Kier Highways was concerned, namely:
a. Defined cost
b. TPCO
c. Total
d. Recovery
e. remarks

Specifically, with regard to HE references: 767 723:

7. How the information was reconciled, considered to be accurate prior to disclosure
8. The action taken subsequently to determine the accuracy (or otherwise)of the records.

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

Dear Khan, Rizwana,

Please advise by what date I can anticipate receiving a response - the review is overdue

Thank you

Yours sincerely,

Mr P Swift

Khan, Rizwana, Highways England Company Limited



I am currently out of the office and unavailable. Please contact Nicola
Patchett on 0300 470 2534 or Matthew Aymes on 0300 470 7243 if your matter
requires a response.

 

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[1][Highways England request email].

 

 

Thanks

Regards
Riz Khan

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Dear Highways England Company Limited,

I am awaiting a response to mine of 15 June 2019. On the basis you may, or could, have interpreted this as a new request, this should be considered a request for an internal review; you have not replied within the statutory 20 working days.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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Dear Highways England Company Limited,

you have not provided information in response to my FoIA

You have not provided the outcome of your internal review

please advise by when I can expect to receive the information sought.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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Dear HRizwana,

The appears to be a great deal more to the pain/gain share and my requests than meets the eye. Possibly this will demonstrate my logical, cross-referencing approach and why I can become frustrated

In response to FoIA 743153, 25/10/2016 Highways England conveyed the existence of the pain/gain relationship. It should be remembered that in 2016 HE was saying DCP rates were ‘held’ but ‘you cannot have’, you had yet to lose the ‘commercially sensitive’ shield, had yet to change tack and use the ‘not held’ exemption.

in respect of this request, as at 14/05/2019, there was no reluctance on the part of HE to answer my request, no suggestion I was being vexatious, you simply ‘put me in my box’ by stating I had misunderstood, I had approached the issue from an incorrect premise. The reply is above.

However, I do not believe this to be correct. I was aware of a 25/10/2016 response in respect of the pain/gain share. I therefore pointed out what you had previously conveyed.

Using the limited but pertinent information I possess about pain/gain, this contractual arrangement can be applied to Area 9. A brief timeline is as follows:

01/07/2014 Kier commenced the Area 9 contract. That is to say, Kier was subject to the pain/gain share for over a year, at least until:

25/10/2016 the ‘pain/gain share’ existed and was applicable, it was conveyed in a FoIA response of that date. BUT … ‘no contractor has ever been in the position where the proportion of traced claims exceeds these assessments’

In order to state no contractor had met the threshold (I paraphrase) it follows:

• The statistic was monitored
• Figures were provided
• Figures were supplied on an annual basis
• Consideration was given to the:
o Number of claims
o Costs
o recoveries

Where is this information which is captured by my FoIA request?

Sometime between 25/10/2016 and the response above:

12/06/2019 the pain/gain share is said to have concluded (due to insurers)

You state the pain/gain share concluded because ‘of challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers.’

Assuming, for one moment, the above is correct and the pain/gain share stopped. When? Clearly it was after 25/10/2016. I therefore expect to be provided all information prior to this date. Indeed, I expect to be advised the date the ‘share’ stopped and supplied all information to that date. It is clearly captured by my request.

But how does the pain gain share affect insurers – does it?

The contract (Area 9 / ASC) simply says a Third Party (drive, fleet, haulier or their insurer) will pay ‘no more than’:

Defined costs, base rates (£) +
Uplift (%)

The pain / gain share is an arrangement between Highways England their contractor. It does not involve insurers.

Insurers see no benefit from ‘pain /gain’; the arrangement is intended to ensure Highway England benefit – if a contractor recovers more than a threshold, likely a percentage of their costs, the monthly lump-sum payment (from the public purse) the contractor receives is reduced. Highway England have met the ‘pain’ aspect under the monthly lumpsum payment – they have never seen the gain.

Insurers having no involvement in the pain / gain relationship, the matter is not believed to have been raised with them (or us) and is not the basis for any alteration to the contract (which it appears occurred).

I am seeking the correspondence relating to the contract amendment such that no matter how much Kier (as an example) recover they would never see their lump-sum reduced.

However, a particular concern is that Kier Highways are misrepresenting recoveries to HE, overstating their costs and understating their recoveries. This is evidenced here http://www.englandhighways.co.uk/false-i...

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

Thank you for your email to Highways England.

 

If you’re reporting a real time issue which requires immediate attention
please call the Customer Contact Centre on 0300 123 5000. 

 

A map of the roads for which we are responsible can be found here
[1]https://assets.publishing.service.gov.uk....
If the road you’re interested in isn’t on this map it will fall under the
jurisdiction of the local authority.  You can find details of local
authorities using the search facility on the gov.uk website
at: [2]https://www.gov.uk/find-your-local-council

 

If your email does relate to an issue on Highways England's network it
will be passed to the relevant team within Highways England and they will
respond to you within a maximum of 15 working days.

 

If you’ve made a request under the Freedom of Information Act we will
respond to you within a maximum of 20 working days. Your request will be
dealt with in line with government guidelines:
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Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][Highways England request email]

 

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Mr P Swift left an annotation ()

ICO

Mr P Swift left an annotation ()

09/09/2019 from ICO to Highways England Case Reference Number FS50868062

Dear Sir/Madam

Your reference: 770,263

Complaint from P Swift

The Information Commissioner has received a complaint from Mr Swift stating that he has not received a decision regarding the internal review he requested on 15 June 2019. A copy of the internal review request for your information can be found at the link below:
https://www.whatdotheyknow.com/request/c...

Guidance

The Commissioner has issued guidance regarding the time limits on carrying out internal reviews. The Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review, and in no case should the total time taken exceed 40 working days.

A full copy of this guidance is available on our website (www.ico.org.uk) under the Freedom of Information guidance section.

Enforcement

The Commissioner wants to ensure that a complainant has exhausted a public authority’s internal review procedure, but at the same time the complainant should not be unreasonably delayed in having their complaint considered under section 50.

Internal reviews are referred to in the section 45 Code of Practice, and significant or repeated unreasonable delays in dealing with internal reviews will be monitored by the Enforcement team. In some instances regulatory action may be necessary.

Our Regulatory Action Policy is available on our website here:

https://ico.org.uk/media/about-the-ico/d...

Actions

If it is the case that you have not issued an internal review decision to Mr Swift we recommend that you do so within 10 working days from the date of receipt of this letter.

If you have, in fact, already responded to Mr Swift, and believe that your response should already have been received we would recommend you contact him to confirm receipt if you have not already done so.

If you need to contact us about this complaint I can be contacted on the number below. Please quote the reference number at the top of this letter.

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

Please find attached the Internal Review ref. IR 100012 of your Freedom of Information request 770,263. Please accept my apologies in the delay in providing this to you.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://highwaysengland.co.uk

show quoted sections

Dear FOI Advice,

I will review your response when able. At first blush, it appears to convey yet another case of Highway England completing a U-Turn, claimingto have supplied false information giving rise to a waste of my time.

However, your response does not address the false information provided by your contractor and the process by which they have arrived at defined costs i.e. the schedule they have used. By reference to my records, they have used their own schedule of rates, not defined costs i.e. not those common to TP's and HE and I anticipate you being provided these and in turn that they are provided to me.

Your response also conflicts with information provided to Courts and the contract.

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

I will try to explain a misunderstanding

The extract from Highways England Ref: FOI 743,153 (repeated below) is incorrect and as such should not have been sent to you.

All contractors reconcile their costs annually against their recoveries. If the proportion of traced incidents exceeds expectations an assessment would be made and the Lump Sum payment would be reduced. However, no contractor has ever been in the position where the proportion of traced claims exceeds these assessments and there are various factors for this. The main one being not all damage linked to a driver is reported by the driver.’’
The process described above did not and does not exist in the Asset Support Contracts (ASC).

It is not practical for Highways England nor our contractors to establish a precise number of damage incidents on our network and hence the proportion of incidents caused by traced and un-identified drivers. While some un-identified driver damage incidents can be obvious, many others by their nature are not and the damage to the asset may not be established until sometime after the event. Un-identified driver damage incidents tend to be those causing the least obvious damage to both our asset and also the vehicle involved as evidenced by the fact the vehicle has driven way from the scene and off the network unnoticed.

The Lump Sum in ASCs generally remains unchanged throughout the life of the contract apart from annual adjustments due to indexation and other factors (eg tendered efficiencies, etc.) or very occasionally if there is a significant change to the contract that is negotiated between the two parties requiring an adjustment to the contracted Lump Sum.

In respect to schemes work New Engineering Contract (NEC) Option C Target Price with a pain/gain share is used by Highways England in ASC’s for most scheme work.

This is not used for Green Claim repairs in the more recent Asset Support Contracts. This was a direct result in previous Manging Agent Contracts of challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers. NEC Option E cost reimbursable (or Defined Cost plus Fee) approach is therefore used for DCP repair work.

So for clarity there is not an annual review of Lump Sums related to Green Claims in ASC. In addition, the use of pain/gain arrangement is for scheme work and is not used for Green Claim repairs and has not been used since prior to 2015.

We apologies for the error in Highways England Ref: FOI 743,153 and any resultant misunderstanding of the how the ASC worked in this respect. We trust this clarifies this aspect.

Dear FOI Advice,

Please provide elal information upon which you are relying to negate the original request (2016), the response, to include the detail about the pain/gain process and the termination of this due to insurers unwillingness to meet the costs.

Your response conveys another apology and another U-Turn, it does not address how this has arisen not does it explain the supportive comments made in 2016.

Yours sincerely,

Mr P Swift

Dear Highways England Company Limited,

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 'Contractor Charges, Recoveries & Lump-Sum Payments for DCP Works'.

You have not addressed my request of 08/10/2019:

Please provide all information upon which you are relying to negate the original request (2016), the response, to include the detail about the pain/gain process and the termination of this due to insurers unwillingness to meet the costs.
Your response conveys another apology and another U-Turn, it does not address how this has arisen not does it explain the supportive comments made in 2016.

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

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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Mr P Swift left an annotation ()

28/01/2020 to ICO

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached the response to your follow-up request, subsequent
internal review and complaint to the ICO reference IR 100509.

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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

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[3][Highways England request email]

 

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3. mailto:[Highways England request email]

Dear Mr Drysdale,
You state the information I requested is not held by Highways England.
In this case, the ‘pain/gain share’ was explained to be in place and no contractor had achieved recoveries such that their monthly lumpsum payment f from the public purse, of taxpayers money, would be reduced. However, in early 2019, I identified Kier highways providing false information to you that they were overstating their costs thereby giving the impression they were making a loss.

a) Why, if not to gain in one way or another?
b) What has Highways England done about this?

Having reported the matter to yourselves, believing Kier’s conduct was to protect their monthly lump sum payment, I was the subject of another Authority U-turn; the pain/gain share process you caused me to believe existed is not applied. This is not the first time I have encountered a reversal of statement when your Authority is faced with a dilemma.

Whatever the reason for Kier’s provision of exaggerated information to you, the fact is this has occurred. S at ‘a’ above; why?

I asked:
A. Please provide all information upon which you are relying to negate the original request (2016), the response, to include the detail about the pain/gain process and the termination of this due to insurers unwillingness to meet the costs.

The FOI Response 743,153 in 2016 describes a process. I sought to be provided all the information giving rise to the 2016 response. I understand HE FoIA staff administering Freedom of Information act requests present them to the relevant individuals or Department and seek responses.

1. I am seeking the original approaches and responses from 2016

You state the pain/gain approach has NEVER been PART of any Asset Support Contract (ASC) and the description of this procedure was provided in error.
However, my understanding is that since at least 2012, ASC’s were the norm and the pain-gain inclusion caused much confusion, resolving the pain/gain share was time consuming for contractors.
I also refer you to the ICO’s DN, reference: FS50741018 following a request for:

• ‘the defined costs” associated with an invoice relating to an area of the road network that is maintained and improved by a particular contractor appointed by Highways England’)

When responding to the ICO in respect of the above matter, the ICO has recorded being advised in 2019 by Highways England:

• The purpose of these rates is to build the target cost model which is used during the operation of the contract as a basis for calculating the ‘PAIN GAIN’ share.

It is evident pain/gain approach has been part of any Asset Support Contract (ASC) and that the description of this procedure was NOT provided in error.

I am also minded Mr Patrick Carney explained (Appeal Reference: EA/2018/0104)

• that ASC rates set an estimated target price for pre-planned work by the contractor. The successful bidding contractor’s performance is then judged against these targets through a “pain and gain” share - if the actual cost of the work exceeds the target the contractor bears part of the additional cost, and if the actual cost is less than the target the contractor shares in some of the savings.

Yet you state the pain/gain approach has never been part of any Asset Support Contract (ASC) and the description of this procedure was provided in error.

The original 2016 response went well beyond simply stating that there was a pain gain share but clarifies that the threshold for such a share has never been reached.
In your latest response, you explained

i. The PAIN/GAIN process compares the Outturn Cost with a Target Price of a scheme
ii. The Target Price is built up based upon the Schedule of Rates in the ASC provided at tender stage.
iii. The Outturn Cost is built up from the Defined Cost plus Fee, in effect the actual cost of undertaking the work.

On the one hand pain gain is not associated with an asset support contract, has never been part of an asset support contract, yet on the other, you refer to a pain-gain process and the target price, then that a target price is associated with the ASC.

Your explanation links pain-gain with an ASC, your statements appear contradictory
2. Please explain

You then state
The use of the pain/gain arrangement for third party claim schemes was terminated very early in the first Asset Support Contracts in 2010.

Your statement above is as per my understanding; pain/gain was associated with an asset support contract – pain gain was ‘in’ the ASC.

Your writing above also contradicts your statement that the approach has never been part of any asset support contract. The process was terminated ‘IN’ the first asset support contract.

3. When was the first I support contract, on what date did it commence?
4. on what date did the pain/gain share conclude?

Clearly the pain/gain share was in effect as had it not been the insurance industry would not have known of the process and would not have (allegedly) objected
5. I wait for whole information in support of insurance companies not being willing to pay gain shares

This should have been supplied in response to a further request:
• 01/10/2019: Pain / Gain Share Arrangement - DCP – Clarification
• 30/10/2019: no response, request Internal review
• 27/11/2019: chase Internal review
• 22/01/2020: no response to ICO

The history of the above request can be found here https://www.whatdotheyknow.com/request/p...
As I believe I have explained, the pain gain share has no effect on insurance companies. Insurers were charged a rate based upon costs and expected to meet these. Insurance companies were not the subject of any further charging or any enhancement to the rates due to the pain/gain share. The sum insurers paid was unaffected, the pain or gain was a matter between the Authority and their contractors. The process relates to recovery when considered in relation to invoicing; if a contractor recovered too little from insurers they suffered a pain the would be shared with yourselves if the contractor achieved more than the threshold in recoveries they would share this ‘gain‘ with yourselves.

6. please explain how the pain gain share affects insurers such that they would take issue

In my experience, both contractors and highways England are reluctant to share charging methodologies and costs with insurers to the extent that both will distort facts. it appears highly unlikely any insurer was aware of the process you describe, would take issue with it. Even if an insurer became aware, contractors and highways England or the Highways Agency would simply ignore them and carry on regardless. this is evidenced by the conduct I have been highlighting to you for many years and the current impasse between insurers and Highways England that sees many matters before the Courts.
Your argument/statement is illogical.
I note you have also commented upon the further matter I raised:

B. Your response conveys another apology and another U-Turn, it does not address how this has arisen not does it explain the supportive comments made in 2016.

You have not addressed this.
I have been provided not one of the supportive comments that gave rise to the 2016 response and await these.
Your stance appears to be standard:
• in response to a Freedom of Information act request you provide information
• when the information is used to highlight anomalies, abuses, misrepresentations, profiteering or fraud, you complete a u-turn.

Your explanation above about FOI Response 743,153 in 2016 describes a process that WAS part of any Asset Support Contract (ASC)
7. At what stage will it be feasible to fully understand how this claimed ‘error’ arose and what have you uncovered to date?

Our response suggests you have yet to understand the disclosure in 2016 – that more can be done, or is being done to address the stated false statements originating from Highways England.

I am not seeking mores apologies, I'm expecting explanations and that these be evidenced. I remind you that in each instance it is YOUR claimed misrepresentations or mistakes that give rise to my further requests that waste my time, give rise to suspicion about your conduct and my difficulty accepting anything uncorroborated.

You have repeatedly brought further requests upon yourselves. the situation appears to be akin to that of your possessing a schedule of rates for damage to Crown property works. You have stated receiving 175 (!) requests and reviews about rates over a period of five years in responding the information was held but commercially sensitive or the requests vexatious. When both these exemptions fell away and you are faced with having to disclose the price list , you resorted to the ‘not held’ exemption which could, if accurate, have been advised in response to the first request.

Further examples can be found here: http://www.englandhighways.co.uk/highway...
Citing section 14, vexatious or repeated requests, appear inappropriate given you claim (acknowledge) it is your conduct on multiple occasions, that has given rise to my applications. ‘Vexatious’ appears to be a label best suited to Highways England.

I await the information I have requested.

Yours
P. Swift

FOI Advice, Highways England Company Limited

Dear Mr Swift,

Thank you for your e-mail.

I am unsure as to whether you have made a new request in your most recent e-mail or whether you are unhappy with the response provided on 27 March 2020. If it is the former please can you just provide the questions that amount to requests for information in order for us to progress. If you are unhappy with the response provided, as it was an internal review, as indicated in the response you have the right to apply directly to the Information Commissioners Office for a decision. Therefore if you are unhappy with the response provided I advise you to follow that procedure.

Kind Regards

Jonathan Drysdale
Freedom of Information Officer (HE)
Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
Web: http://highwaysengland.co.uk

show quoted sections

Mr P Swift left an annotation ()

ICO case reference IC-44614-H1D7
Your complaint against Highways England, concerning its handling of your information request dated 8 October 2020, has been allocated a new case reference number. The previous case reference, FS50917502, has been replaced
with the case reference IC-44614-H1D7. This new case reference should be quoted in all future correspondence with this office.

By way of an update, I am progressing your complaint. I wrote to Highways England this afternoon to request some additional information and I have asked for a response by 29 July 2020.
As soon as it has responded and I have decided how the matter should proceed, I will write to you again with a further update. I trust this is satisfactory and thank you for your continued patience.
Senior Case Officer

FOI Advice, Highways England Company Limited

Dear Mr Swift,

 

Following discussions with the Information Commissioner’s Office (ICO)
and, whilst colleagues at Highways England maintain a high degree of
certainty that the information requested is not held, in light of the
submissions we have made regarding the questions raised of the ICO’s
investigation, Highways England has concluded that it has incorrectly
applied Section 1 of the Freedom of Information Act 2000 to your request.
Therefore, we are now withdrawing the use of Section 1 to this request and
are instead refusing the request under Section 12 of the Freedom of
Information Act 2000 as it exceeds the appropriate cost.

 

The reason it has been refused under Section 12 is due to the amount of
documents that are returned when undertaking keyword searches for
information on Pain/Gain share and the areas where Kier or their previous
entities operated the MAC contracts where Pain/Gain share arrangement
would have applied to third party claims. These searches returned such
large volumes of documents that the cost to review and check for relevance
to the request would exceed the appropriate cost. In addition because of
the large number of documents returned from the searches there is no
advice or assistance that could be provided that would enable the request
to be reduced to an appropriate size so to come within the reasonable
costs. An example demonstrating the number of documents returned is below
which demonstrates even narrowing to a single search term would mean an
the cost of the request would be exceeded.

 

 

  Key word
Area/Contractor Gain share Gain Pain share Pain
Area 1 6902 38875 3791 18098
Area 9 2787 38370 1970 12649
Kier 5980 60729 4933 20889
Amey 5677 48655 4359 18111

 

 

As noted at the top of this e-mail, whilst Highways England colleagues are
all in agreement regarding their high degree of certainty that the
information requested isn’t held, the legislation requires absolute
certainty in order to apply Section 1 information not held. As such
because the large volume of documents that would have to be reviewed to
ensure that certainty would exceed the appropriate cost our response of
information not held is subsequently withdrawn and replaced with Section
12 of the Freedom of Information Act.

 

If you are not satisfied with the outcome of this review you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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

Web: [1]http://highwaysengland.co.uk

 

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|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

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Dear FOI Advice,

Dear Mr Drysdale,

Yours is a repetition of the response at:

https://www.whatdotheyknow.com/request/p...

In respect of which I have written:

Would Highways England make up their collective minds with regard to the pain/gain share:

10/2016 - it does exist
09/2019 - it does not exist
11/2019 - it does exist
10/2020 - it does not exist - 'vexatious' cited, then this being obviously inappropriate, 'cost'.

The vexatious party is Highways England; I should not be the subject of conduct that is now beyond slapstick - http://www.englandhighways.co.uk/pain-ga...

I await the provision of the information that exists and an explanation for your erroneous, contradictory responses. please see:

http://www.englandhighways.co.uk/201005-...

Yours sincerely,

Mr P Swift