Kier Highways Ltd

Mr P Swift made this Freedom of Information request to Birmingham City Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by Birmingham City Council.

Dear Birmingham City Council,

I ask to be provided, with regard to damage to 'street furniture'

1. a copy of the contract with Kier Highways Ltd for damage to street furniture attendance and repairs
2. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to the Council and;
a. whether the Council is charged, for any works, by Kier Highways by using CECA rates
3. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to Third Parties
4. The basis upon which Kier Highways Ltd is to charge at-fault Third Parties for example:
a. cost-plus uplift
b. using the same base rates as charged to the Council in the event a culprit is unidentified
5. The protection the council put in place to prevent Third Parties being overcharged i.e.
the agreement that prevents the practice of Kier Highways profiting from claims - see: http://www.englandhighways.co.uk/inflati...
6. a copy of any insurance you possess for damage to such property
7. a copy of the authority in place permitting Kier Highways to commence proceedings in your name and
8. the process agreed with Kier highways and/or their lawyers, for approaching Third parties, many of whom will be your constituents, for reimbursement such that they are treated fairly, reasonably and not subject to unreasonable processes or costs.

Yours faithfully,

Mr P Swift

Birmingham City Council

 
 
 
 
Information request
Our reference: 18993085
Your reference: [FOI #703303 email]

show quoted sections

Birmingham City Council

4 Attachments

 
 
 
 
Information request
Our reference: 18993085
Your reference: [FOI #703303 email]

show quoted sections

Dear Birmingham City Council,

Your reference number 18993085.

With regard to my request:

1. a copy of the contract with Kier Highways Ltd for damage to street furniture attendance and repairs

a. please supply the full contract insofar as it relates to damage to property by drivers.

2. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to the Council and; a. whether the Council is charged, for any works, by Kier Highways by
using CECA rates
a. Please provide the schedule of rates. It appears this is ‘actual costs’.
b. How are actual costs arrived at and verified by the Council
There are generally, two scenarios involving contractor assets (staff, labour, plant, materials) following an incident causing damage and reinstatement:

• A negligent party is identified and pursed for attendance and repair costs
• A negligent party is NOT identified and presumably either the contractor is compensated by way of fixed fee agreement or invoices the Council for the works

c. Please explain the process and if the council is invoiced for the works per incident, provide the schedule of rates utilised by Kier.
It is noted Kier Highways do not use CECA rates and the costs for staff and labour are predominantly those of the TUPE workforce.
d. Please provide the rates utilised by the workforce pre-Kier appointment. It is understood this will be Amey rates

3. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to Third Parties
Please see ‘2a’ above. response 2 does not provide the schedule of rates – see above.

4. The basis upon which Kier Highways Ltd is to charge at-fault Third Parties for example:
a. cost-plus uplift, b. using the same base rates as charged to the Council in the event a
culprit is unidentified
This request relates to damage/repairs resulting from drivers, not any fault, errors, negligence etc. by Kier i.e. Third-Party claims (as opposed to ‘other than’ or contractor negligence).
It is noted that this is a ‘cost’ process, not ‘cost-plus’. In turn, Kier remits all / any costs recovered from at fault drivers, fleets.
a. If I have misunderstood, please clarify
b. Please provide a copy of the contractor’s last notification to you of all Third-Party Claims, the last quarterly basis return (schedule 15, 3).

5. The protection the council put in place to prevent Third Parties being
overcharged i.e. the agreement that prevents the practice of Kier Highways profiting from
claims - see: http://www.englandhighways.co.uk/inflati...
a. How do Kier profit from attendance/repair works?
An element of business is profit and a reasonable uplift /return would be expected.
b. What is the benefit to Kier if an ‘at cost service is provided?
c. In what respect (how) is the way Third Parties ‘transparent’?

6. a copy of any insurance you possess for damage to such property

Thank you.

7. a copy of the authority in place permitting Kier Highways to commence proceedings in your name
I note Kier have authority and permission to act on behalf of the Highway Authority regarding proceedings under the Contract (Schedule 29 as attached).
a. What section of ‘schedule 29’.
This does not appear to reference claims or proceedings.

8. the process agreed with Kier highways and/or their lawyers, for approaching Third parties, many of whom will be your constituents, for reimbursement such that they are treated fairly, reasonably and not subject to unreasonable processes or costs.
The request relates to Third-party claims/incidents.
Kier Highways handle claims. Indeed, Kier Highways:
• appoint lawyers to progress the claims for the outset
• add a 10% administration fee to claims
• charge interest on the claimed sums from the date of incident/loss
The above appears to be at odds with charging ‘cost’ and not profiting. Please:
a. confirm the above are authorised, agreed processes/charges and explain how they are consistent with a non-profit, at cost process.
With regard to Kier operating within standard industry practice in dealing with Third Parties. Please:
b. Provide the industry practice referred to.

Yours sincerely,

Mr P Swift

Birmingham City Council

 
 
 
 
Information request
Our reference: 19626589

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Birmingham City Council

 
 
 
 
Information request
Our reference: 19626589

show quoted sections

Dear Birmingham City Council,

I note:

'We are now considering the request but we need more time to process it.
This is because more time is required to retrieve the information. We
will now try to respond to you by 14 January 2021. Please accept our
apologies for the delay in replying.'

Thank you for the update.

Yours sincerely,

Mr P Swift

Birmingham City Council

1 Attachment

 
 
 
 
Information request
Our reference: 19626589

show quoted sections

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 'Kier Highways Ltd'.

I am seeking the rates Kier use to charge Third Parties and the Council for DCP works.

You state:

‘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.’

1. From where have you acquired this information and

2. Why do you believe it to be correct, appropriate

These rates have NOT been confirmed by the First Tier Tribunal (EA/2018/0104) to be commercially sensitive. Therefore, they can and should be disclosed. The Tribunal found Highways England had no DCP Rates ergo, they made no finding with regard to DCP rates. The Tribunal was provided rates for planned, scheduled works (termed 'ASC Rates') and accepted these to be commercially sensitive (s43), see: http://www.englandhighways.co.uk/tribuna...

DCP rates are NOT commercially sensitive and as clear, obvious evidence of this:

• Kier provided the rates they apply with each claim and as a schedule with claims, the rates can be found here:
http://www.englandhighways.co.uk/ksor-ki...

The rates being used are therefore neither secret nor sensitive.

3. I ask to be provided with the rates

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

Birmingham City Council

 
 
 
 
Information request
Our reference: 18993085
Your reference: [FOI #703303 email]

show quoted sections

Birmingham City Council

2 Attachments

Dear Mr Swift,
 
We write further in relation to your request for an internal review of the
response issued to you under reference number 18993085. Your reasons for
the review refer to the usage of a section 43 exemption, however upon
reading the response sent to you a section 43 exemption has not been
applied to your request.
We note however that you have received a response for a request under
reference 19626589 and this does rely on a section 43 exemption.
 
We would be grateful therefore if you could clarify which response you
require the independent review panel to consider.
If you require a review for both response it would be helpful if you could
please provide the reasoning.
 
Thank you for your assistance.
 
Business Support Team (Inclusive Growth Directorate)
 
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Dear Birmingham City Council,
I have not made a request for an internal review of the response issued to under reference number 18993085 and refer you to the thread continuity. I have written under a single thread, one request and sought clarification, more information, you have elected to use a different reference.

I have specified the aspect with which I take issue, that you state:

‘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.’

This appears in 19626589, I am therefore at a loss to understand why clarification is required, why there is confusion. However, for the sake of clarity, with regard to 18993085, no exemption has been applied. I sought clarification which you appear to have treated as a new FoIA request and assigned 19626589.
18/01/2021, my request for an IR refers to (can only refer to) 19626589. You have noted I received a response for a request under reference 19626589 and this does rely on a section 43 exemption. It is this which I am seeking an IR about.

The rates are NOT commercially sensitive. To expand upon this, the tribunal reference you cite received evidence from an Authority employee who has made a statement of truth:

‘When giving my Oral Evidence, it was put to me, by [redacted], that Mr Swift’s Own Documents were not commercially sensitive. I agreed that that must be the case. Mr Swift would not have Mr Swift’s Own Documents otherwise. In point of fact the rates for AIWs had been given to him by Highways England in accordance with the decision of the ICO to which I referred a moment ago. These rates incidentally were not held by Highways England at the time but requested by Highways England from Kier in order to comply with the decision’

The argument is straightforward; the above witness referred to the rates I held for emergency works as ‘DCP Rates’ and explained that these rates (I held) were not commercially sensitive because I possessed them … and why would I not; they accompany each claim of which there are 100’s, 1,000’s.

DCP (damage to Crown property) rates for unplanned, emergency events are not commercially sensitive and have given rise to disclosure. An example is the decision of the ICO which, with accompanying data released (DCP rates) can be viewed here:
http://www.englandhighways.co.uk/aiw-rat...
the ICO found:
‘The Commissioner’s decision is that section 43(2) is not engaged and therefore by failing to communicate the requested information HE has breached section 1(1)(b) of the FOIA’.

Yours

Mr P Swift

Birmingham City Council

 
 
 
 
Information request
Our reference: 18993085
Your reference: [FOI #703303 email]

show quoted sections

Dear Birmingham City Council,

I refer to your response and that matters are commercially sensitive.

You are confusing DCP rates with rates for other works, misquoting Tribunals and incorrect. I am seeking DCP rates:

'what he is seeking is disclosure of the DCP standard schedule or defined costs, and this is in the public interest. This DCP information is not commercially sensitive.' para 38 http://www.englandhighways.co.uk/tribuna...

I again refer you to the Tribunal matters involving Highways England and their stance toward KIER rates:

'Mr Carney (HE) explained that he had referred to there being DCP rates as the Appellant (myself) 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 rates Kier gave to me are those within the claim pack.

My understanding with regard to your contract (Kier & Birmingham) is that Kier is to use the tendered rates to bill a Third-Party. You consider these tendered rates commercially sensitive. You are withholding tendered rates that accompany a claim in contradiction to the above consideration.

I wish to see the tendered rates understanding that they are to be used to bill a Third-Party (as above). I wish to compare these tendered rates with those being used by Kier. I suspect the rates differ, that Kier is not complying with the contract.

By withholding the rates you are preventing this comparison, potentially enabling contract non-compliant conduct and the overcharging of road users who inadvertently cause damage to council property.

Your response appears flawed and further causes me to question what information your contractor is providing you. You state:

'No Kier rates are in the public domain (through Highways England or otherwise) and the above extracts from the tribunal cannot be relied upon as this was quoted from another part of the judgement'.

You appear not to understand that Kier issues their rates with each claim, to every Third-Party they present a demand to. To cite Mr Carney's statement to the Tribunal (above) 'the information could not be commercially sensitive as, self-evidently, Keir did not see the information that way, as they had given it to the Appellant.'

Your argument is therefore fundamentally flawed as Kier are:

1. using CECA, available online, to purchase, published
2. presenting their rates with every claim they are giving it to 'the appellant' (me) and anyone subject of a demand
3. the rates are on-line, linked here - http://www.englandhighways.co.uk/birming... (see KSOR Annex – with planning)

Therefore, a reason to withhold the information, possibly the only one, is that the rates Kier are charging Third Parties are NOT those agreed. Indeed, I refer you to your original response that they do not use CECA. The rates they are utilising (linked above) carry the CECA logo and multiple reference to CECA.

It would therefore likely save us, the ICO and Tribunal time if you were to compare your held 'tendered rates', those which you state are sensitive, with those Kier are utilising 'KSOR Annex – with planning', a direct link is here:

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

a. If these ARE the tendered rates, those to be used for DCP works, there is no need to withhold but they should be considered in relation to:
i). your response 'CECA rates not being used' - they are
ii). no opportunity to profit - it appears profiting occurs
iii.) transparency - there is none

b. If these are NOT the tendered rates, NOT those to be used for DCP works:
i). why not?
ii). why have these been permitted to be used?
iii). what will the council do to address the situation

Please confirm whether you are prepared to reconsider your stance by close of business 12/02/2021.

Yours sincerely,

Mr P Swift

Birmingham City Council

Dear Mr Swift
 
I am writing further to your email below.
 
Following our internal review response if you are unsatisfied with our
response please contact the ICO, their contact details are:
 

The Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Telephone: 01625 545745

Web Address: [1]www.ico.org.uk

Yours sincerely
Corporate Information Governance Team

--------------------------------------------------------------------------

Dear Birmingham City Council,

I refer to your response and that matters are commercially sensitive.

You are confusing DCP rates with rates for other works, misquoting
Tribunals and incorrect. I am seeking DCP rates:

'what he is seeking is disclosure of the DCP standard schedule or defined
costs, and this is in the public interest. This DCP information is not
commercially sensitive.' para 38
http://www.englandhighways.co.uk/tribuna...

I again refer you to the Tribunal matters involving Highways England and
their stance toward KIER rates:

'Mr Carney (HE) explained that he had referred to there being DCP rates as
the Appellant (myself) 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 rates Kier gave to me are those within the claim pack.

My understanding with regard to your contract (Kier & Birmingham) is that
Kier is to use the tendered rates to bill a Third-Party. You consider
these tendered rates commercially sensitive. You are withholding tendered
rates that accompany a claim in contradiction to the above consideration.

I wish to see the tendered rates understanding that they are to be used to
bill a Third-Party (as above). I wish to compare these tendered rates with
those being used by Kier. I suspect the rates differ, that Kier is not
complying with the contract.

By withholding the rates you are preventing this comparison, potentially
enabling contract non-compliant conduct and the overcharging of road users
who inadvertently cause damage to council property.

Your response appears flawed and further causes me to question what
information your contractor is providing you. You state:

'No Kier rates are in the public domain (through Highways England or
otherwise) and the above extracts from the tribunal cannot be relied upon
as this was quoted from another part of the judgement'.

You appear not to understand that Kier issues their rates with each claim,
to every Third-Party they present a demand to. To cite Mr Carney's
statement to the Tribunal (above) 'the information could not be
commercially sensitive as, self-evidently, Keir did not see the
information that way, as they had given it to the Appellant.'

Your argument is therefore fundamentally flawed as Kier are:

1. using CECA, available online, to purchase, published
2. presenting their rates with every claim they are giving it to 'the
appellant' (me) and anyone subject of a demand
3. the rates are on-line, linked here -
http://www.englandhighways.co.uk/birming...
(see KSOR Annex - with planning)

Therefore, a reason to withhold the information, possibly the only one, is
that the rates Kier are charging Third Parties are NOT those agreed.
Indeed, I refer you to your original response that they do not use CECA.
The rates they are utilising (linked above) carry the CECA logo and
multiple reference to CECA.

It would therefore likely save us, the ICO and Tribunal time if you were
to compare your held 'tendered rates', those which you state are
sensitive, with those Kier are utilising 'KSOR Annex - with planning', a
direct link is here:

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

a. If these ARE the tendered rates, those to be used for DCP works, there
is no need to withhold but they should be considered in relation to:
i). your response 'CECA rates not being used' - they are
ii). no opportunity to profit - it appears profiting occurs
iii.) transparency - there is none

b. If these are NOT the tendered rates, NOT those to be used for DCP
works:
i). why not?
ii). why have these been permitted to be used?
iii). what will the council do to address the situation

Please confirm whether you are prepared to reconsider your stance by close
of business 12/02/2021.

Yours sincerely,

Mr P Swift

show quoted sections

Dear Birmingham City Council,

I have afforded you the opportunity to correct your writing and release rates which, if they were being used as stated, are the same as those agreed to be used, you would understand were in the public domain already i.e. no reason to hide.

It appears the intention is to assist your contractor to overstate claims, to make demands from those who use your roads which are excessive.

This appears to be another example of Kier utilising one (lower) set of rates when billing an Authority whilst the Authority permits higher (contract non-compliant) rates to be used by Kier when billing your road users.

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

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

to ICO 16/02/2021

Dear Birmingham City Council,

The rates being utilised are in the public domain:

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

Accordingly, there is no need to withhold the information and tie up the ICO's valuable resources.

Either the rates being used to bill Third Parties is as agreed, in which case, they can be disclosed, or it is not in which case, I question why you are preventing this from being understood and assisting contract non-compliant process. There is a lack of transparency.

I again ask to be provided with the schedule of rates.

I also refer you to a request specific to this: https://www.whatdotheyknow.com/request/k...

Yours sincerely,

Mr P Swift

Dear Birmingham City Council,

ICO reference IC-88546-L4P2

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

the matter continues and more information can be found here https://www.englandhighways.co.uk/birmin...

The information was withheld ... but some provided to another! It appears the Council and ICO treat my requests differently.