Damage to Street Furniture Claim Costs & Recoveries

Waiting for an internal review by Birmingham City Council of their handling of this request.

Dear Birmingham City Council,

With regard to the following incidents/claims

A. 05/07/2020
Birmingham - column, sign pole, sign plate, oil, debris
Fox Hollies Road, Junction of Harvingon Way, Birmingham
Kier ref. GC\044709
Kier Invoice # INV24905

B. 11/08/2020
lighting column replacement
New Street Longbridge
Kier ref. GC\045274
Kier Invoice INV25157

I ask to be provided:

1. The amount Kier stated they claimed
2. The amount Kier stated they recovered
3. The breakdown of the charges; labour, plant and materials as conveyed to you
4. Confirmation (or otherwise) the rates are ‘cost’
5. The uplift applied if any (as profit)
6. The management fee, if any (comprising profit)
7. The amount remitted to you
8. The ‘detailed application submitted by Kier (monthly)
9. Any payment made to Kier

Please ensure the response sets out the method by which Kier makes a profit from the claims (fee or uplift)

Please also provide the detailed applications for payment submitted by Kier on a monthly basis since 01/09/2020; the detail for the costs incurred as well as the detailed cost transaction report for all levels of activity and associated costs, in Excel format

Commercial sensitivity does not apply to these damage rates and I refer you to Appeal No: EA/2019/0119 Decision http://www.englandhighways.co.uk/191219-....

Yours faithfully,

P. Swift

Birmingham City Council

 
 
 
 
Information request
Our reference: 21277088
Your reference: [FOI #723859 email]

show quoted sections

Dear Birmingham City Council,

Thank you for the update, however, whilst you advise the Freedom of Information Act 2000 may restrict the release of some or all of the information you have requested, I have specifically worded this to comply with the Act and avoid such issues as commercial sensitivity. The information relates to 'damage rates' and methodology. I refer you to the following and associated links:
http://www.englandhighways.co.uk/birming...

You have previously declined to provide the ‘damage to Crown property’ rates writing (at para 2a 14/01/2021) 'These rates have been confirmed by the First Tier Tribunal (EA/2018/0104) to be commercially sensitive and therefore under section 43 FOIA will not be disclosed for the reasons stated below.'.

The above is incorrect and I refer you to the 'commercial sensitivity' information at: http://www.englandhighways.co.uk/birming...

The appropriate decision is Appeal No: EA/2019/0119 in which the Tribunal recorded, at para 14:

'Mr Carney (Highways England) explained that he had referred to there being DCP rates as the Appellant himself had produced information from Keir, given to him voluntarily, which clearly related to DCP. Mr Carney maintained that this was all he was referring to, including that these could not be commercially sensitive as, self-evidently, Keir did not see the information that way, as they had given it to the Appellant.'

The decision can be found here: http://www.englandhighways.co.uk/191219-...

the information is reasonably sought to understand the process, review this and sums involved (with Kier and the Council) determine contract compliance etc. all 'open Government' objectives.

Yours sincerely,

Mr P Swift

Dear Birmingham City Council,

You have written:

We are dealing with your request under the Freedom of Information Act
2000 and we aim to send a response by 3 March 2021.

I have received no update, no information.

You are in breach fo the Act.

I am seeking an internal review.

Yours sincerely,

Mr P Swift

Birmingham City Council

1 Attachment

 
 
 
 
Information request
Our reference: 21277088
Your reference: [FOI #723859 email]

show quoted sections

Mr P Swift left an annotation ()

council reponse:
We consider that the qualified exemption set out in Section 43 (Prejudicial to
commercial interests) subsection (2) applies to the information requested.
Therefore, we have decided to withhold the information.

In applying this exemption, we have had to balance the public interest in
withholding the information against the interest in favour of disclosure.
S43 Commercial sensitivity information
Section 43(2) exempts information whose disclosure would, or would be likely
to, prejudice the commercial interests of any person (an individual, a company,
the public authority itself or any other legal entity).
“A commercial interest relates to a person’s ability to participate
competitively in a commercial activity. The underlying aim may be to
make a profit however it could also be to cover costs or to simply
remain solvent.”
the disclosure of the rates information would be likely to prejudice Kier’s
commercial interests.
The Prejudice Test
The term “would…prejudice” means that prejudice is more probable than not to
occur (i.e. a more than a 50% chance of the disclosure causing the prejudice,
even though it is not absolutely certain that it would do so).
The Public Interest Test
Section 43(2) is a qualified exemption which means that even where the
exemption is engaged, information can only be withheld where the
public interest in maintaining that exemption outweighs the public
interest in disclosure.
The matters which were considered in applying the public interest test are as
follows:-
Factors in favour of disclosing:
Birmingham City Council acknowledges that there is a general public interest
argument in ensuring transparency in the activities of public authorities,
therefore we always strive to be open and transparent in all our dealings.

Dear Birmingham City Council,

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

I am writing to request an internal review of Birmingham City Council's handling of my FOI request 'Damage to Street Furniture Claim Costs & Recoveries'.

The information is not commercially sensitive and I refer you to previous writing.

Additionally, the rates utilised accompany every claim i.e. they are released. They can be found here:

http://www.englandhighways.co.uk/dcp-cla...

1. If the rates at the above link are NOT the tendered rates, please confirm. This would indicate Kier Highways Ltd is NOT using the rates agreed with your council and in turn, they are utilising their profit-making process.

2. If the rates at the above link ARE the tendered rates, they are not commercially sensitive but released and widely available.

As Kier Highways Ltd are using CECA rates and you have confirmed this is not the case, it appears they are not using a contractually agreed process, that (contrary to your response) they are profiting from claims.

In turn, it appears your response is to hide this conduct, to assist Kier to make contract non-complaint uplifts. This is conduct we have encountered before, 'confessed' to a Judge:

para 36: 'Furthermore, for the purposes of assessing the extent of Kier’s authority within Area 9 (Area 6/8) the court cannot ignore the evidence given on behalf of the claimant by Mr Cairns. In summary, on this issue, his evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract.'

http://www.englandhighways.co.uk/200821-...

It appears you are unaware Kier Highways Ltd are utilising their 'Inflating Costs to Make a Profit' lawyers http://www.englandhighways.co.uk/inflati...

The charges to those unfortunate enough to damage council property appear to be Kier's nationally applied costs and not as you have conveyed.

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

Yours faithfully,

Mr P Swift

Birmingham City Council

 
 
 
 
Information request
Our reference: 21277088
Your reference: [FOI #723859 email]

show quoted sections

Dear Birmingham City Council,

I have a simple request:

Are the KSoR rates those agreed with BCC to be used by Kier Highways when billing Third Parties who cause damage to Council property?

The KSoR rates can be found here:
http://www.englandhighways.co.uk/wp-cont...

If the KSoR rates are the same if they are those agreed, then what is the problem with releasing said rates, why would they be commercially sensntive given they accompany every claim, are in the public domain and are based on an available scehdule, CECA?

Of course, a problem then arises because you have stated there is no profit associated and the agreed rates are NOT based upon CECA.

If they are not the same, if appears Kier Highways KLts are, once again, not complying with a highways maintenance contract, it appears they are again adding unauthorised uplifts. Additional concerns would be that your monthly updates have failed to identify this and claims against your road users continue to progress base upon high charges and Kier Highways Ltd seemingly acting outside their Authority.

It also appears that your council is unaware Kier Highways Ltd do not manage claims but place matters with lawyers from the outset giving rise to the potential for increased costs' their fees and interest. http://www.englandhighways.co.uk/inflati...

These claims are not at 'cost' as advised.

Where is the transparency you wrote about?

Yours sincerely,

Philip Swift

http://www.englandhighways.co.uk/birming...

Birmingham City Council

 
 
 
 
Information request
Our reference: 22401086

show quoted sections

Birmingham City Council

 
 
 
 
Information request
Our reference: 21277088
Your reference: [FOI #723859 email]

show quoted sections

Birmingham City Council

1 Attachment

 
 
 
 
Information request
Our reference: 22401086

show quoted sections

Dear Birmingham City Council,

Thank you for your rpely.

You state ‘Kier Highways do not retain any recovered costs in relation to claims, and monies recovered are reconciled as part of the monthly application for payment process. '

1. please explain what is meant by this, the process

As the costs charged by Kier are, as you describe, ‘public domain’ records:

2. please explain why you have not addressed my FoIA request, a copy of which appears below.

3. please address the FoIA request (below); provide the information I have sought

Yours sincerely,

Mr P Swift

Dear Birmingham City Council,

With regard to the following incidents/claims

A. 05/07/2020
Birmingham - column, sign pole, sign plate, oil, debris
Fox Hollies Road, Junction of Harvingon Way, Birmingham
Kier ref. GC\044709
Kier Invoice # INV24905

B. 11/08/2020
lighting column replacement
New Street Longbridge
Kier ref. GC\045274
Kier Invoice INV25157

I ask to be provided:

1. The amount Kier stated they claimed
2. The amount Kier stated they recovered
3. The breakdown of the charges; labour, plant and materials as conveyed to you
4. Confirmation (or otherwise) the rates are ‘cost’
5. The uplift applied if any (as profit)
6. The management fee, if any (comprising profit)
7. The amount remitted to you
8. The ‘detailed application submitted by Kier (monthly)
9. Any payment made to Kier

Please ensure the response sets out the method by which Kier makes a profit from the claims (fee or uplift)

Please also provide the detailed applications for payment submitted by Kier on a monthly basis since 01/09/2020; the detail for the costs incurred as well as the detailed cost transaction report for all levels of activity and associated costs, in Excel format

Commercial sensitivity does not apply to these damage rates and I refer you to Appeal No: EA/2019/0119 Decision http://www.englandhighways.co.uk/191219-....

Yours faithfully,

P. Swift