Kier & Area 9 Audits & Reviews of Green Claims

The request was refused by National Highways Limited.

Dear Highways England Company Limited,

All exchanges with EM HIGHWAY SERVICES LIMITED, now Kier KIER HIGHWAYS LIMITED Company number 05606089 for Area 9 leading up to the contractor's appointment insofar as charging third parties above and below threshold claims are concerned; rates, methodologies etc.

And, all audits, reviews and findings about Kier Highways Areas from 01/01/2014 to the present date to include consideration and implementation of charging methodologies and cost calculation above and below threshold. The development of a methodology providing clarity and traceability of staff costs on green claims.

Yours faithfully,

P. Swift

Highways England,

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6. mailto:[Highways England request email]

FOI Advice,

1 Attachment

Dear Mr Swift,

 

Please find attached our response to your request dated 8 December 2019.

 

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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3. mailto:[Highways England request email]

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 'Kier & Area 9 Audits & Reviews of Green Claims'.

Dear Sirs,

I am not ‘undoubtedly aware that the information requested will require a review of a vast amount of documentation’. Indeed, I believed just the opposite hence restricting the request to a single contractor and Area. I understood contractor information, for an Area is overseen / handled by a specific representative, a liaison within the Authority.

You offer no explanation for your assumption and your subsequent comments are unsupported, not explained.

In turn it makes perfect sense for such records, in particular audits, to beheld in a single place. What is the purpose of an audit if not compared with previous findings, if not held for cross-referencing etc.

I have previously been provided similar information in respect of this. Documentation will comprise the likes of

• ‘Technical Clarification’ exchanges with the contractor. The clarification will also address the pain / gain threshold, which, I understand from Area 10, resulted in a credit to the contract to start in year 2.
• ‘Sustainability Clarification’ exchanges with the contractor which, as in Area 10, will address the basis of Third Party claims.

There will exist no personal data as I am seeking rates.

There will be no commercially sensitive data as the rates are not ASC but those being discussed din connection with Green claims, DCP.

There will be no commercially sensitive data as the rates below and above threshold are to be the same, they are the ‘defined costs’ common to both HE and a TP, the uplift being different.

DCP Rates have bene provided previously.

I wish to understand what occurred subsequent to the audit that reported in 2014 that noted.

‘Whilst there were time sheets to track the operatives hours other individuals could not be traced. These staff costs are not based upon a clear approved methodology or on specific individuals time sheets. The costs are calculated by the damage to Crown property (DCP) team and are based on their 4 years experience in dealing with previous claims of a similar nature. By not having an approved methodology for the allocation of staff costs insurance companies could potentially reject claims submitted by the Highways Agency’

It was a requirement that Kier develop and implement a methodology that offers more clarity and traceability of staff costs on green claims. to be part of process review which will commence in September 2014.

It is therefore evident pre-contract commencement there was a methodology in place, costs consideration and prestation plus recording requirement in place. This was not adhered to. It appears, from the outset, Highways england identified contract non-compliance. It is unclear whether this was in respect of above, below (or both) threshold matters.

As I have bene advised that above and below are audited, I anticipate receiving this information.

I wish to be provided the information your General Counsel has reviewed, I expect the schedule of rates.

I am not seeking the contract or Annex 23 which contains the pricing mechanism.

I do anticipate that the release will make reference to the pricing mechanism, in particular Appendix A to Annex 23. You have not provided comprehensive information on the process for charging third parties on above and below threshold claims in Area 9. The recent Tribunal was in respect of Area 3 where it is claimed Appendix A does not apply

Conversely, in Area 9, Appendix A does apply. However, you have never enforced this, Kier have never complied with the process and coincidentally, until I discovered Appendix A 01/2017, it was kept secret. Possibly the information will shed some light upon this.

I remind you that whilst I have historically made requests in respect of rates / contract compliance, Highways England repeatedly failed to disclose appendix A to Annex 23, did not place it on line, made no reference to it and your contractor did not comply with it.

As you appear intent upon citing Tribunal matters, in respect of which you are no longer appealing, I also remind you that on at least 15 occasions you advised a schedule of rates was held having received 175 requests / reviews for said rates. You repeatedly stated the rates were commercially sensitive and it was not until your vexatious and sensitive exemptions fell away that you stated ‘not held’. It is therefore difficult to place any credence in your exemptions and conduct. Indeed, event with regard to the pain / gain share, this was stated to exist but when it was noted your contractor is supplying you with incorrect figures, you again U-Turned and claimed ‘no such procedure’.

A Judge has stated about your Authority’s use of vexatious and my request:

ERIOUS PURPOSE: ‘We have considered the motive of the requestor and in particular his detailed Reply and exhibits. These submissions supported by the documents provided and annexed have persuaded us not only that the motive of the requestor had a serious purpose and arose from genuine and informed concern but had significant value with a high degree of Public Interest.’
PROPER USE: On the evidence before us we could not find the request were manifestly unjustified, inappropriate or an improper use of FOIA.
NO HARASSMENT: Again looking at the evidence before us we do not accept that there could or should have been any harassment or distress (of and to staff) in an organisation of the size and import of the second respondent in this appeal. They were of such a scale that the important information sought by the Appellant should have been within their capacity to process without causing harassment or distress.
AUTHORITY INADEQUATE / INACCURATE RESPONSES: We find that the failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority.
NOT UNREASONABLE: we find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor, which in our view, in all the circumstances was not manifestly unreasonable.
AUTHORITY PROVIDES WRONG INFORMATION: We have been persuaded that he (Mr Swift) has received erroneous information.
‘Amongst other issues he requested information on three issues his business is concerned which include;

• One of the contractors was inflating their costs on a scale arguably amounting to fraud;
• Costs are different according to Third Parties being billed directly on the basis that the costs of the works fall below the procedural threshold and
• Transparency and an inability to check costs e.g. on Staff overtime and using false registration VRN number plates.

The Judge made the above statements without being aware the request he was considering, upon which your Authority had presumably expended £1,000’s of tax-payers money, was for something that did not exist. For two years (approx..) you permitted the request to proceed without information nay party that ultimately there could be no release that any victory on my part would be pyrrhic – you waited until your failure to reveal there was nothing to be gained form my request.

I do not believe your blanket ban is in keeping with the spirt of the Act or letter of the law.

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

Yours faithfully,

Mr P Swift

Highways England,

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
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For more information on how we use your data please check our privacy
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If you’ve made a request under the Freedom of Information Act we will
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Kind regards

 

Highways England Customer Contact Centre

 

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Highways England Company Limited | General enquiries: 0300 123 5000
|National Traffic Operations Centre, 3 Ridgeway, Quinton Business Park,
Birmingham B32 1AF |
[5]https://www.gov.uk/government/organisati... |
[6][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 ()

06/01/2020 FS50803075 Decision Notice re Highways England's CEO 'lot of effort' that failed to identify the absence of rates in the contract, although the Authority was considering rates!
NOT VEXATIOUS (again):
http://www.englandhighways.co.uk/200106-...

Dear Highways England Company Limited,

Please advise the present position with regard to the Internal review

Yours faithfully,

Mr P Swift

Highways England,

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.

For more information on how we use your data please check our privacy
notice at: [3]https://www.highwaysengland.co.uk/privacy

 

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:
[4]https://www.gov.uk/make-a-freedom-of-inf...

 

Please be advised that emails may be monitored for training and quality
assurance purposes.

 

Kind regards

 

Highways England Customer Contact Centre

 

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

Mr P Swift left an annotation ()

03/03/2020 to ICO

FOI Advice,

1 Attachment

Dear Mr Swift,

 

Please find attached the internal review ref. IR 100617 of your freedom of
information request ref. FOI 100617. Please accept my apologies for the
delay in providing this.

 

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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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 ()

06/03/2020 HE wrote:
On the 10 January 2020 Highways England provided a response under FOI 100617 refusing
the request as vexatious under Section 14(1) of the Freedom of Information Act as it would
have placed a grossly oppressive burden on the authority because of the amount of
documentation that would have to be reviewed for application of exemptions and redaction in
preparation for disclosure. It was also viewed that the request concerned the terms rates and
methodologies for Kier Highways Limited, a subject matter that has already addressed by
Highways England, ICO decision notices and Tribunal proceedings and was therefore going
back over an issue that has been comprehensively addressed by Highways England and other
forms of independent scrutiny and could therefore also be classed as vexatious on the basis on
unreasonable persistence.
I have now had the opportunity to review the request and response and I am satisfied that
based on the number of points put forward and the what was being requested that the request
was correctly refused as vexatious under Section 14(1) of the Freedom of Information Act.

Dear FOI Advice,

The matter is with the ICO.

The request is akin to that of Area 10 and the request for information leading to the appointment of BBMM in 2012. In respect of this matter information was sought, obtained and provided.
17/03/2017 your ref: 748, 189 in response to 'your request for ‘all queries raised, all responses provided and all additional queries / responses to conclusion [Area 10 only]'

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

24 March 2020 from the ICO:
Your complaint has been accepted as eligible for further consideration and will be allocated to a case officer as soon as possible
Case Reference Number FS50914160

Dear FOI Advice,

You may wish to review your vexatious response. I understand the information, far from being scattered and requiring considerable enquiry/collation will be held by one of a few people and your 'audit committee'.

12/02/2018, I was advised: "So, where we currently are is that the… So we had a draft audit report that went to our audit committee last Wednesday, and they have asked for some further work to be undertaken that’s … the audit highlighted a few things and they said, “Well actually, I want to check out this this, that and ... So, the audit, as we stand here today, is therefore not complete.
So that work will take place now over the next err, few weeks, so, and I’m not going to obviously be able to sit down and discuss anything with you because it, it’s not completed yet."

During the conversation HE made reference to a package I was to receive (but which has been kept from me) - see below.

I don't many have been privy to the information but suggest this may at most be Mr Reardon and Ms McCarthy.

Yours sincerely,

Mr P Swift

a. CMA The payments that are being presented are being presented firstly at the inflated rate, they’re not even defined cost plus third party claims overhead…
b. HE Yeah, yeah.
c. CMA … they’re going well above that. Now, that is nothing that Highways England would ever pay. You would pay defined costs plus fee, 7.38%.
d. HE And that’s what I’m trying to, this is what we’re trying to get to the bottom of as part of the audit, which I told you we would do.
e. CMA Yeah.
f. HE It’s the, “What is the schedule of rates that is used to calculate, and how is that schedule of rates worked out basically, on what basis is that, and why? So does it differ from, forgive me, is it Annex 23? And if so, why?”
g. CMA Yeah.
h. HE And the justification for that. Now, till…
i. CMA But both, both Highways England and Kier have said, Kier before a judge, “Look, defined rates are the same to HE and to third parties, the difference is the overhead, the uplift.”
j. HE Yeah.
k. CMA “And Highways England, they call it a fee of 7.38%, to third parties they call it the third party claims overhead of 20.38, 20.58% ...
l. HE Yeah.
m. CMA … and the difference is therefore, was it 13.2%?” That I can live with, but nobody has given us…
n. HE Yeah.
o. CMA … the defined costs. We’re told they’re the same to Highways England and to third parties. They can’t be, they can’t possibly be because the difference being charged is not 13.2%.
p. HE And that’s what we’re, that’s what um, we’re doing further investigation on.
q. CMA Right, but where is this schedule? Can, can, will somebody not just give it to me?
r. HE They’ve not been, we’ve not got, it’s all part of, it’s all mopped up in the audit, so I can’t release, because if I release one bit of information it’s not necessarily going to all make sense, so it needs to all come as a package