Dear Highways England Company Limited,

I refer to my request of 27/04/2020 (below) in respect of which I believe I was due a response on or before 27/05/2020. I am seeking an internal review.

Yours faithfully,

Mr P Swift

Sent: 27 April 2020 14:31
I understand the schedule of rates is held in excel spreadsheet format, the file for Third Parties is named Area_3_equipment_Defined_Cost_latest_15.xls The schedule is not used solely for Area 3. I understand Kier Claims Manager (and others) have access to the schedule.

1. Please provide a copy of this document, the one utilised for Highways England claims (above threshold*) and all spreadsheets Kier hold relating to DCP costs/prices. The above xls file appears to have been constructed for the 10/2015 process instigated by Dan Hay, Neil Pendlebury-Green and Sophie Granville of Kier Highways and

2. Advise the descriptions of the rates that have been released to adjusters/lawyers associated with the stayed S Wales claims; how they are referred to.

3. I ask to be provided with the description of the released information and its source.

I believe the above fall within my 2017 request the subject of a Tribunal hearing and that, as of 10/2019, you abandoned i.e. accepted the Upper Tribunal’s findings - EA/2018/0088, immediately following which you changed tack and advised the information is ‘not held’. These rates, those from the spreadsheet cited above are being used in conjunction with claims and proceedings issued in your name; they are ‘held on behalf of’ Highways England.

Yours faithfully,

P. Swift

*the term 'above threshold extends to all claims over £10,000 and will capture those claims where Kier are pursuing Third Parties directly for sums in excess of £10,000.

Highways England, Highways England Company Limited

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Dear Highways England Company Limited,

please advise by when i can expect to receive my information and the outcome of the review

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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Dear Highways England Company Limited,

Please advise by what date I can expect to be provided with my information - the schedule of DCP Rates which your General Counsel advised existed - see below.

Yours faithfully,

Mr P Swift

From: tim.reardon @ highwaysengland.co.uk
Sent: 30 April 2020 15:05
To: pswift @ cmaclaims.co.uk>
Cc:
Jim.O'Sullivan @ highwaysengland.co.uk
Alex.Bingham @ highwaysengland.co.uk
Subject: RE: Your complaint concerning Kier Highways - State Enabled Exaggeration & Fraud on an Industrials scale

Dear Mr Swift

I refer to your email of 28th April addressed to Jim O’Sullivan. I have been asked to reply to you on his behalf.

As previously advised, there is no schedule of rates for unscheduled damage repair claims which is used by either Highways England or its contractors. This much was determined by the Tribunal in their decision dated 12th December 2019.

Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated. They no longer have a record of it and it is not now used by anyone within the business. Similarly, this document has never been held or used by Highways England.

We have been informed by Kier that the schedule would have contained a list of equipment rates from 2015.

Under the terms of the Asset Support Contract (ASC), equipment rates do not fall within the defined cost definition but are market tested. They are therefore a separate, distinct element of a damage claim. The market rates for equipment are calculated using the Civil Engineering and Contractors Association (CECA) Schedule of Equipment Rates, minus 30%.

We have already explained the position concerning recent amendments made to the ASCs in Area 3 and 9. The two contracts contained differing contractual provisions and both parties felt it necessary to take steps to bring the contracts into alignment.

The process provided an opportunity to ensure that both contracts reflected the correct legal basis for the recovery of damages as confirmed by the Court of Appeal in the case of Coles v Hetherton.

With regards to the cases which are currently before Cardiff County Court, you are not a party to this litigation. It would be inappropriate for us to comment further on matters which are currently subject to live proceedings in which you play no role.

This email covers the same issues raised in your previous complaints dated 25th and 28th February. Please consider this to be our response under the second stage of Highways England’s complaints process to these matters. For further details, please see here.

Yours sncerely

Tim Reardon

Tim Reardon
General Counsel
General Counsel Directorate
Highways England | Bridge House | 1 Walnut Tree Close | Guildford | Surrey | GU1 4LZ

Highways England, Highways England Company Limited

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Mr P Swift left an annotation ()

29/06/2019 to ICO

Dear Highways England Company Limited,
Please advise by what date I can expect to be provided with my information - the schedule of DCP Rates which your General Counsel advised existed - see below.
Yours faithfully,
Mr P Swift

Highways England, Highways England Company Limited

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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:
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6. mailto:[Highways England request email]

Dear Highways England Company Limited,

Please advise by what date I can expect to be provided with my information - this will include the schedule of DCP Rates which your General Counsel advised existed -and the subsequent schedule I have identified plus all others.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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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
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FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached Highways England’s response to your Freedom of
Information request made 27 April 2020 and our apologies for the delay in
providing this response.

 

Kind Regards 

Highways England FOI Team 
Web: [1]http://highwaysengland.co.uk

 

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[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

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FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached the internal review ref. IR 101068 of your freedom of
information request ref. FOI 101068.

 

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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[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

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Mr P Swift left an annotation ()

From Highways England:
I understand from your email you are requesting an internal review into the handling of your Freedom of Information request reference (FOI 101068) was handled.

I note you initially submitted this request on 27 April 2020 as such the response was due by 27 May 2020.

I note the final response to this request was provided to you on 14 August 2020. Following this, I have found that although the request was received in the middle of the Covid-19 pandemic lockdown, where everyone including public authorities such as Highways England needed to divert resources to ensure vital work continued to take place and the ICO allowed relaxation of the timescales for response, it is reasonable that you should have expected to receive the response to your 27 April before 14 August. I do believe though it was not unreasonable to expect it to take longer than 20 working days which 1 day after this expired is when you requested an internal review. However, despite this given the extended length of time it has taken for Highways England to issue the response I acknowledge that in case this Highways England is in breach of Section 10 of the Freedom of Information Act 2000.

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

Yours sincerely

Jonathan Drysdale

Dear FOI Advice,

I am seeking an IR of the 14/08/2020 response. The information is held and I am seeking this

The attachment to which you referred was not provided.

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

Highways England responded:
We have addressed each of your questions in turn below.

Q1: Please provide a copy of this document, the one utilised for Highways England claims (above threshold) and all spreadsheets Kier hold relating to DCP costs / prices. The above xls file appears to have been constructed for the 10/2015 process instigated by Dan Hay, Neil Pendlebury-Green and Sophie Granville of Kier Highways

A1: Under Section 1(1)(a) of the Freedom of Information Act 2000 we can confirm that the information requested is not held by Highways England. This was explained to you in an e-mail sent by our General Counsel team on 30 April 2020 and has been attached for reference.

Q2: Advise the descriptions of the rates that have been released to adjusters / lawyers associated with the stayed S Wales claims; how they are referred to.

A2: Under Section 1(1)(a) of the Freedom of Information Act 2000 we can confirm that the information requested is not held by Highways England. To explain this further when the damage repair costs for an incident are estimated to be below £10,000, the contractor conducts the repair but does not receive payment for this work from Highways England. The contractor will instead seek to recover their outlay from the responsible third party, or their motor insurer, directly. Highways England are not involved in this process. Decisions on settlement and/or litigation are made by the contractor, and any instructions provided to legal representatives on matters of liability or quantum come from the contractor directly.

Q3: With regard to the S Wales data, I am told that I have been the subject of your Authority’s semantics when it comes to rates and understand information has been disclosed. I ask to be provided with the description of the released information and its source.

A3: In compliance with a Court order for disclosure, the information released by Kier and their representatives in relation to these cases is the Pricing Schedules to the Area 3 contract in an unredacted form. This is the Pricing Schedule for Target Costs (The rates offered during contract tender). This is the schedule which has been found to be commercially sensitive at Tribunal case EA/2018/0104 and, as such, has not released into the public domain. Highways England maintains that this information is still commercially sensitive. It was only released by order of the Court for the purposes of this litigation and was subject to provisions to maintain its confidentiality and commercial sensitivity

Mr P Swift left an annotation ()

28/08/2020
This links to and is associated with:
https://www.whatdotheyknow.com/request/k...

FOI Advice, Highways England Company Limited

2 Attachments

  • Attachment

    Internal Review 2 Mr Swift IR 101068.docx

    74K Download View as HTML

  • Attachment

    RE Your complaint concerning Kier Highways State Enabled Exaggeration Fraud on an Industrials scale Redacted.pdf

    12K Download View as HTML

Dear Mr Swift,

 

Please find attached the internal review ref. IR 101068 of your freedom of
information request ref. FOI 101068.

 

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

 

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 |
[2]https://www.gov.uk/government/organisati... |
[3][Highways England request email]

 

Registered in England and Wales no 9346363 | Registered Office: Bridge
House, 1 Walnut Tree Close, Guildford, Surrey GU1 4LZ 

 

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Mr P Swift left an annotation ()

To the ICO
ICO Case Reference: IC-45144-H2D4 HE ref: FOI 101068

Mr P Swift left an annotation ()

From: ICO Casework <icocasework@ico.org.uk>
Sent: 23 September 2020 14:03
To: Philip Swift <pswift@cmaclaims.co.uk>
Subject: ICO Case Reference: IC-45144-H2D4

23 September 2020

Case Reference: IC-45144-H2D4

Dear Mr Swift

Freedom of Information Act 2000 (FOIA)
Your information request to Highways England
Your request: https://www.whatdotheyknow.com/request/d...

Thank you for your correspondence of 22 September 2020 in which you raised a complaint about the above public authority’s handling of your request for information.

Your complaint has been accepted as eligible for further consideration and will be allocated to a case officer as soon as possible.

We generally deal with complaints in the order we receive them, except where we have identified a complaint that can be resolved quickly or where there is a compelling reason for a case to be accelerated. More complex complaints may involve a delay whilst waiting to be allocated to a case officer. Currently the waiting time is approximately three months before being allocated to a case officer. Once your case is allocated we will contact you and the case officer will explain how they will progress your complaint.

In the COVID-19 pandemic climate, many public authorities are facing severe front line pressures and are re-deploying their resources to meet those demands. The Commissioner’s view is that public authorities require maximum flexibility at this time, to optimally deploy those resources and best respond to a national crisis.

Therefore, as a reasonable and proportionate regulator, the Commissioner has taken the decision to amend her casework approach (whilst it is necessary) and reduce the burden on public authorities in these unprecedented times.

If you wish to send any further documents while the case is awaiting allocation, please quote the ICO case reference number at the top of this correspondence.

Please be aware that this is an automated process. The information will not be read by a member of our staff and you will not receive a reply until your case is allocated to a case officer.