Kier Highways repair rates & Process

Mr P Swift made this Freedom of Information request to Transport for London

Automatic anti-spam measures are in place for this older request. Please let us know if a further response is expected or if you are having trouble responding.

The request was refused by Transport for London.

Dear Transport for London,

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

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-1706-2021

 

Thank you for your request received on 26 November 2020 asking for
information about Kier Highways.

 

Please think carefully about whether the request is essential at this
current time, as answering FOI requests will require the use of limited
resources and the attention of staff who could be supporting other
essential activity. Where requests are made, please note that our response
time may be impacted by the current situation and so you may wish to
reconsider the timing of this request. Please notify us as soon as
possible if you would like to withdraw your request at the current time.

 

Should you wish to proceed with the request we will aim to issue a
response by 29 December 2020 in accordance with the Freedom of Information
Act 2000 and our information access policy. We publish a substantial
range of information on our website on subjects including operational
performance, contracts, expenditure, journey data, governance and our
financial performance. This includes data which is frequently asked for in
FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

 

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FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-1706-2021

 

Thank you for your request received on 26 November 2020 asking for
information about Kier Highways.

 

Your request is being considered in accordance with the requirements of
the Freedom of Information (FOI) Act and our information access policy. I
can confirm we do hold the information you require.

 

However, in accordance with Section 17 of the Freedom of Information Act
we are still considering the balance of the public interest in relation to
a qualified exemption that applies to the requested information and have
not yet reached a conclusion. The exemption under consideration is section
43(2), prejudice to commercial interests. It is estimated that a decision
will be reached by 28 January 2021 and I will write again to inform you of
that decision.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[1][TfL request email]

 

 

 

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Dear FOI,

'commercial interests' is not applicable.

The fact is you have engaged with Kier highways. You have permitted them to charge those you serve, Third Parties (drivers, fleets, hauliers or their insurers) sums that are unjustified, exaggerated and in some respects appear to be fraudulent.

I have previously raised the issue with you, you have apparently conducted an investigation yet despite my valid concerns and attempts to resolve the issue TfL failed to identify the behaviour but enabled and permitted the conduct to continue.

This request follows the Judgement of a Court who considered Kier Highways charges under Highways England contracts. The Highways England claim charging methodology is the same as that used to bill Third parties under the TfL contract. In proceedings commenced by the Authority, the Court heard evidence from Highways England's own witness, a Kier Highways Emyoyee:

'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.'

The judgement can be found here:
http://www.englandhighways.co.uk/200821-...

The information may be commercially embarrassing, it is not commercially sensitive.

Yours sincerely,

Mr P Swift

FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-1706-2021

 

Thank you for your request received on 26 November 2020 asking for
information about Kier Highways.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we hold some of the information you require. You asked for:

 

 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

 

The LoHAC contract includes reactive repairs under a lumpsum which
includes damage to street furniture. A copy of the LoHAC contract has been
provided to you previously in our correspondence of 25 April 2018
([1]https://www.whatdotheyknow.com/request/k...).
Information regarding the schedule of costs for works has previously been
withheld under section 43(2) – prejudice to commercial interests. Please
refer to the decision notices issued by the Information Commissioner
regarding the contract and the application of this exemption:

 

[2]https://ico.org.uk/media/action-weve-tak...

[3]https://ico.org.uk/media/action-weve-tak...

[4]https://ico.org.uk/media/action-weve-tak...

[5]https://ico.org.uk/media/action-weve-tak...

[6]https://ico.org.uk/media/action-weve-tak...

 

 3. the schedule of costs for works on the highways i.e. staff,
operatives, plant and materials charged to Third Parties

 

TfL does not have a 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

 

We do not hold information on any arrangements councils have with Kier
Highways Ltd. The LoHAC contract includes the following third party
clause.

 

2.24 3rd Party Damage

2.24.1 Subject to the Employer selecting service 24 – 3rd Party Damage –
reactive

works – the Contractor shall permanently repair 3rd party damage to

Employer assets within the Affected Property and be reimbursed through a

lump sum where all of the following apply:

• the damage was not the result of a fatal accident;

• the damage was not caused by the Employer or anyone acting directly on

his behalf; and

• the estimated cost of permanent repair is not more than £10,000 based on

the contract Price List.

2.24.2 Clause 2.24.1 supersedes the value limits placed on reactive
activities

reimbursed as a lump sum detailed in clause 2.0.3.4.

2.24.3 In the above circumstances, the Contractor will be expected to
supplement

payment through the lump sum by recovering costs from the relevant 3rd

party for his own benefit.

 

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:
[7]http://www.englandhighways.co.uk/inflati...

 

As stated in the first ICO Decision Notice referenced above, TfL does not
hold information on the prices charged to third parties or the process
they follow when collecting these charges as the contract does not provide
a provision for this.

 

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

 

Damage for such property is covered by the LoHAC contracts rather than
insurance, therefore we do not hold this information.

 

 7. a copy of the authority in place permitting Kier Highways to commence
proceedings in your name and

 

There is no general authority to issue proceedings in TfL’s name.

 

 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 LoHAC Best Value clause is shown below:

 

17. Quality and Best Value

 

17.1 The contractor acknowledges that each employer is a best value
authority for the purposes of the Local Government Act 1999 and as such an
employer may be required to make arrangements to secure continuous
improvement in the way it exercises its functions, having regard to a
combination of economy, efficiency and effectiveness. The contractor
assists each employer (where applicable) to discharge each employer’s duty
where possible and, in doing so, inter alia carries out any review
reasonably requested by the employer.

 

If this is not the information you are looking for please feel free to
contact me.

 

If you are considering submitting a further FOI request please think
carefully about whether the request is essential at this current time, as
answering FOI requests will require the use of limited resources and the
attention of staff who could be supporting other essential activity. Where
requests are made, please note that our response time may be impacted by
the current situation.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[8][TfL request email]

 

 

 

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Dear FOI,

thank you for your response. With regard to:

3. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to Third Parties

I am seeking clarification:

A. Where damage is caused to 'street furniture' and there is no at-fault party to claim against:
i. is this repair contained within the lumpsum payment and if so
ii. what are the exceptions to this and if not
iii. using what schedule of rates does Kier bill TfL

B. Where damage is caused to 'street furniture' and there is an at-fault party to claim against:
i. Is there a threshold associated with these repairs i.e. over £x (possibly £10,000) and if so
ii. using what schedule of rates does Kier bill TfL

For the sake of clarity, I am seeking the rates (and information about same) used for unplanned works, following an emergency, unexpected events. I am not seeking the rates associated with planned works or schemes.

Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-2065-2021

 

Thank you for your request received on 13 January 2021 asking for further
information about Kier Highways.

 

Please think carefully about whether the request is essential at this
current time, as answering FOI requests will require the use of limited
resources and the attention of staff who could be supporting other
essential activity. Where requests are made, please note that our response
time may be impacted by the current situation and so you may wish to
reconsider the timing of this request. Please notify us as soon as
possible if you would like to withdraw your request at the current time.

 

Should you wish to proceed with the request we will aim to issue a
response by 10 February 2021 in accordance with the Freedom of Information
Act 2000 and our information access policy. We publish a substantial
range of information on our website on subjects including operational
performance, contracts, expenditure, journey data, governance and our
financial performance. This includes data which is frequently asked for in
FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

 

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FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-2065-2021

 

Thank you for your request received on 13 January 2021 asking for further
information about Kier Highways.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we do hold the information you require.

 

A. Where damage is caused to 'street furniture' and there is no at-fault
party to claim against:

i. is this repair contained within the lumpsum payment and if so –

ii. what are the exceptions to this and if not –

iii. using what schedule of rates does Kier bill TfL –

 

Where damage is caused to street furniture and there is no at-fault party
to claim against this repair is contained within the lump sum payment. All
repairs less than £10k are included in the lump sum, there are no
exceptions.

 

Information regarding the schedule of costs for works has previously been
withheld under section 43(2) – prejudice to commercial interests. Please
refer to the list of decision notices issued by the Information
Commissioner regarding the application of this exemption in our previous
response.

 

B. Where damage is caused to 'street furniture' and there is an at-fault
party to claim against:

i. Is there a threshold associated with these repairs i.e. over £x
(possibly £10,000) and if so –

ii. using what schedule of rates does Kier bill TfL –

 

All repairs less than £10k are included in the lump sum. Kier would use
the LoHAC schedule of rates.

 

If this is not the information you are looking for please feel free to
contact me.

 

If you are considering submitting a further FOI request please think
carefully about whether the request is essential at this current time, as
answering FOI requests will require the use of limited resources and the
attention of staff who could be supporting other essential activity. Where
requests are made, please note that our response time may be impacted by
the current situation.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[1][TfL request email]

 

 

 

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Dear Transport for London,

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

I am writing to request an internal review of Transport for London's handling of my FOI request 'Kier Highways repair rates & Process'.

The information is NOT commercially sensitive.
Your arguments in respect of commercial sensitivity are erroneous; the Tribunal decisions convey the opposite; DCP rates are not commercially sensitive as they are conveyed 'to the world', released with each claim. For example, I refer you to para 14 of a tribunal's decision at http://www.englandhighways.co.uk/191219-...

'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'.

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

FOI, Transport for London

TfL Ref: IRV-056-2021

Thank you for your email which was received by Transport for London (TfL) on 9 February 2021.

You have stated that you are dissatisfied with the handling of your request for information under the Freedom of Information Act.

A review will be conducted by an internal review panel in accordance with TfL’s Internal Review Procedure, which is available via the following URL:

http://content.tfl.gov.uk/internal-revie...

Every effort will be made to provide you with a response by 9 March 2021. However, if the review will not be completed by this date, we will contact you and notify you of the revised response date as soon as possible.

In the meantime, if you would like to discuss this matter further, please feel free to contact me.

Yours sincerely

Emma Flint
Principal Information Access Adviser
FOI Case Management Team
Transport for London

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FOI, Transport for London

1 Attachment

Dear Mr Swift,

 

IRV-056-2021

 

I am writing to you further to your request for an internal review into
the handling of your request under case reference FOI-2065-2021.

 

Your request asked for the following:

 

A. Where damage is caused to 'street furniture' and there is no at-fault
party to claim against:

i. is this repair contained within the lumpsum payment and if so

ii. what are the exceptions to this and if not

iii. using what schedule of rates does Kier bill TfL

 

B. Where damage is caused to 'street furniture' and there is an at-fault
party to claim against:

i. Is there a threshold associated with these repairs i.e. over £x
(possibly £10,000) and if so

ii. using what schedule of rates does Kier bill TfL

 

You were provided with the information requested in Ai, Aii and Bi but
were refused the information requested in Aiii and Bii on the basis that
it was considered this information was exempt from disclosure in
accordance with section 43(2) of the FOI Act and you have appealed this
decision.

 

Specifically you have said that you do not consider the schedule of rates
to be commercially sensitive and cited an Information Tribunal decision
which you feel renders the application of this exemption erroneous.

 

However, having reviewed the Tribunal decision you refer to and I do not
agree that this carries any relevance to the position being taken by TfL.
It is notable that this Tribunal did not involve TfL and was not directly
related to the consideration of a schedule of rates as its subject.

 

Conversely, the specific subject of schedule of rates applicable to TfL's
contracts has been considered at length on multiple occasions. There have
been four separate decision notices issued by the Information Commissioner
which uphold TfL's view that this information is exempt in accordance with
section 43(2) and also an Information Tribunal decision which specifically
had this subject as its focus also upheld TfL's application of this
exemption. The links to the four decision notices which considered this
can be found below and the Information Tribunal decision can be seen
attached.

 

[1]https://ico.org.uk/media/action-weve-tak...

[2]https://ico.org.uk/media/action-weve-tak...

[3]https://ico.org.uk/media/action-weve-tak...

[4]https://ico.org.uk/media/action-weve-tak...

 

To confirm, TfL's position has not changed and we still consider the
requested information to be exempt under section 43(2) of the FOI Act. All
of our arguments cited in the four ICO decision notices and the
Information Tribunal decision still apply with no material change to the
circumstances which would warrant a different conclusion being reached.

 

Therefore on this occasion your appeal has not been upheld and we maintain
that the schedule of rates are exempt from disclosure under s43(2) and
that the public interest supports the application of this exemption.

 

However if you are dissatisfied with the internal review actions to date
you can refer the matter to the independent authority responsible for
enforcing the Freedom of Information Act, at the following address:

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

A complaint form is available on the ICO’s website (www.ico.org.uk).

Yours sincerely

 

Lee Hill

Information Access Manger

FOI Case Management Team

Transport for London

 

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Dear FOI,
please review in line with the following information
http://www.englandhighways.co.uk/dcp-cla...
additionally, more information has recently been supplied following a Traibnal matter last week ; DCP rates for Kier form 2016 to 2020.
please confirm you will consider or that I will be required to progress to the ICO
Yours sincerely,
Mr P Swift

FOI, Transport for London

Dear Mr Swift,

To confirm, our position remains that we consider the requested information to be exempt from disclosure in accordance with section 43(2) of the FOI Act.

I refer you again to the multiple decision notices and Information Tribunal decision provided in my previous email that set out our detailed reasoning for this and the considerations made by both the Information Commissioner and the Tribunal in consistently accepting these arguments.

Yours sincerely

Lee Hill
Information Access Manager

show quoted sections

Dear FOI,

The ICO has supported the 'commercially sensitive' position with regard to the tender rates, those you are charged for works, submitted at tender. I take no issue with this.

If you are saying the 'tender rates' are the same or supposed to be the same, as the rates Kier charge to a Third-Party (TP - driver, fleet, haulier or their insurer) following a collision, fire, or spill for attendance and restoration, please confirm.

Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift,

The questions to which this internal review relate were as follows (and as asked in FOI-2065-2021):

A. Where damage is caused to 'street furniture' and there is no at-fault party to claim against:
iii. using what schedule of rates does Kier bill TfL

and

B. Where damage is caused to 'street furniture' and there is an at-fault party to claim against:
ii. using what schedule of rates does Kier bill TfL

The FOI response and internal review have concluded that this information can not be disclosed because it is exempt in accordance with section 43(2) of the FOI Act.

Your latest email asks about third party charges but I also note that in a previous request (FOI-1706-2021) you asked: "3. the schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to Third Parties" and our answer was as follows: "TfL does not have a schedule of costs for works on the highways i.e. staff, operatives, plant and materials charged to third parties."

I therefore consider this matter to have already been suitably addressed.

Yours sincerely

Lee Hill
Information Access Manager

show quoted sections

Dear FOI,

Please can you address the following:

A. Where damage is caused to 'street furniture' and there is no at-fault party to claim against

is the schedule of rates Kier use to bill TfL the same as

B. Where damage is caused to 'street furniture' and there is an at-fault party to claim against

Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-2660-2021

 

Thank you for your request received on 23 March 2021 asking for
information about Kier Highways’ schedule of rates.

 

We will aim to issue a response by 21 April 2021 in accordance with the
Freedom of Information Act 2000 and our information access policy. Please
think carefully about whether the request is essential at this current
time, as answering FOI requests will require the use of limited resources
and the attention of staff who could be supporting other essential
activity. Where requests are made, please note that our response time may
be impacted by the current situation and so you may wish to reconsider the
timing of this request. Please notify us as soon as possible if you would
like to withdraw your request at the current time.

 

We publish a substantial range of information on our website on subjects
including operational performance, contracts, expenditure, journey data,
governance and our financial performance. This includes data which is
frequently asked for in FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

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FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-2660-2021

 

Thank you for your request received on 23 March 2021 asking for
information about Kier Highways’ schedule of rates.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we hold some of the information you require.

 

Where damage is caused to 'street furniture' all costs up to a repair
value of £10k are included in the annual lump sum price. The contractor
can seek reimbursement from a third party, the rates for recovery are not
included within the contract.

 

If this is not the information you are looking for please feel free to
contact me.

 

If you are considering submitting a further FOI request please think
carefully about whether the request is essential at this current time, as
answering FOI requests will require the use of limited resources and the
attention of staff who could be supporting other essential activity. Where
requests are made, please note that our response time may be impacted by
the current situation.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[1][TfL request email]

 

 

show quoted sections

Dear FOI,

thank you.

I note:

Where damage is caused to 'street furniture' all costs up to a repair
value of £10k are included in the annual lump sum price. The contractor
can seek reimbursement from a third party, the rates for recovery are not
included within the contract.

It therefore appears any and all sub-£10k claims are attended to by the contractor, you are not billed.

Please explain the process for above £10k;

1. how is a claim compiled, using what rates?
2. how have these rates changed over the years?
3. are you billed using the same rates as are used to bill Third Parties sub-£10k
4. If not, why not?

Thank you,

Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-0336-2122

 

Thank you for your request received on 18 May 2021 asking for information
about contractor’s schedule of rates.

 

We will aim to issue a response by 15 June 2021 in accordance with the
Freedom of Information Act 2000 and our information access policy. Please
think carefully about whether the request is essential at this current
time, as answering FOI requests will require the use of limited resources
and the attention of staff who could be supporting other essential
activity. Where requests are made, please note that our response time may
be impacted by the current situation and so you may wish to reconsider the
timing of this request. Please notify us as soon as possible if you would
like to withdraw your request at the current time.

 

We publish a substantial range of information on our website on subjects
including operational performance, contracts, expenditure, journey data,
governance and our financial performance. This includes data which is
frequently asked for in FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

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FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-0336-2122

 

Thank you for your request received on 18 May 2021 asking for information
about contractor’s schedule of rates.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we hold some of the information you require. You asked:

 

1.    How is a claim compiled, using what rates?

 

The claim would be compiled primarily using the term contract rates.

 

2.    How have these rates changed over the years?

 

The term contract rates are adjusted annually for inflation. 

 

3.    Are you billed using the same rates as are used to bill Third
Parties sub-£10k

4.    If not, why not?

 

As has been explained in previous responses, we do not hold information on
the rates contractors use to bill third parties.

 

If this is not the information you are looking for please feel free to
contact me.

 

If you are considering submitting a further FOI request please think
carefully about whether the request is essential at this current time, as
answering FOI requests will require the use of limited resources and the
attention of staff who could be supporting other essential activity. Where
requests are made, please note that our response time may be impacted by
the current situation.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[1][TfL request email]

 

 

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Dear Ms Jacob

Thank you for our response.

I note the rates for recovery are not included within the contract for sub-£10,000 repairs.

1. What does the contract state about the pricing of sub-£10,00 threshold claims? Please provide me with the relevant extract.

Kier refer to their attendance and make-good prices as the KSoR (Kier Schedule of Rates) and a copy of these can be found here: https://www.englandhighways.co.uk/dcp-cl...

2. I ask to be provided the ‘term contract rates’ for the DCP items within the schedule (linked above). Such rates, those for repairs, are not commercially sensitive

In the event s43 is believed to be engaged

3. please explain the application and
4. advise whether ‘The term contract rates’ are the same as the KSoR, those at the above link, more or less

It appears drivers, fleets, hauliers, or their insurers are charged a higher set of rates than TfL which would be odd. If so, please:

5. Explain why this is permitted, considered reasonable, appropriate and
6. What auditing or monitoring TfL undertakes of Kier and
7. Provide a copy of the last audit insofar as damage repair is concerned.

Please also:

8. Explain the permitted adjustments Kier may make to their sub-threshold rates over the years and
9. Advise what action you undertake to ensure Third Parties using the city’s roads are not subject to higher, excessive and /or profiteering rates.

Yours sincerely,

Mr P Swift

FOI, Transport for London

Dear Mr Swift

 

Our Ref:         FOI-0476-2122

 

Thank you for your request received on 8 June 2021 asking for information
about Kier’s Schedule of Rates.

 

We will aim to issue a response by 5 July 2021 in accordance with the
Freedom of Information Act 2000 and our information access policy. Please
think carefully about whether the request is essential at this current
time, as answering FOI requests will require the use of limited resources
and the attention of staff who could be supporting other essential
activity. Where requests are made, please note that our response time may
be impacted by the current situation and so you may wish to reconsider the
timing of this request. Please notify us as soon as possible if you would
like to withdraw your request at the current time.

 

We publish a substantial range of information on our website on subjects
including operational performance, contracts, expenditure, journey data,
governance and our financial performance. This includes data which is
frequently asked for in FOI requests or other public queries. Please check
[1]http://www.tfl.gov.uk/corporate/transpar... to see if this helps you.

 

We will publish anonymised versions of requests and responses on the
[2]www.tfl.gov.uk website. We will not publish your name and we will send
a copy of the response to you before it is published on our website.

 

In the meantime, if you would like to discuss this matter further, please
do not hesitate to contact me.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[3][TfL request email]

 

 

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FOI, Transport for London

1 Attachment

Dear Mr Swift

 

Our Ref:         FOI-0476-2122

 

Thank you for your request received on 8 June 2021 asking for information
about Kier’s Schedule of Rates.

 

Your request has been considered in accordance with the requirements of
the Freedom of Information Act and our information access policy. I can
confirm we hold some of the information you require. You asked:

 

 1. What does the contract state about the pricing of sub-£10,00 threshold
claims? Please provide me with the relevant extract.

 

We have assumed that you mean sub £10,000 and are referring to the LoHAC. 

 

As explained to you previously in our responses to FOI-2065-2021 and
FOI-2660-2021, where damage is caused to 'street furniture' all costs up
to a repair value of £10k are included in the annual lump sum price. The
contractor can seek reimbursement from a third party, the rates for
recovery are not included within the contract.

 

Further, a copy of this contract has also been previously provided to you
which contains the information you have requested. That document remains
publicly accessible here:

 

[1]https://www.whatdotheyknow.com/request/4....

 

However, for clarity, please see the relevant extract below that confirms
the answers you have previously been given:

 

Clause 2.24.3 states In the above circumstances, the Contractor will be
expected to supplement payment through the lump sum by recovering costs
from the relevant 3^rd party for his own benefit.

 

The specific extract you have requested here was also previously provided
to you in response to FOI-1706-2021.

 

Kier refer to their attendance and make-good prices as the KSoR (Kier
Schedule of Rates) and a copy of these can be found here:
[2]https://www.englandhighways.co.uk/dcp-cl...

 

 2. I ask to be provided the ‘term contract rates’ for the DCP items
within the schedule (linked above). Such rates, those for repairs, are
not commercially sensitive
 3. please explain the application and
 4. advise whether ‘The term contract rates’ are the same as the KSoR,
those at the above link, more or less

 

The information you refer to in items 2, 3 and 4 relate to a Highways
England contract not a TfL contract, we therefore have no details relevant
to this. You should contact Highways England if you wish to know more
information about their contract with Kier.

 

As you are aware, TfL have responded extensively to multiple requests and
appeals from you on the subject of the schedule of rates relevant to
Transport for London’s contract and there have been several decision
notices issued from the Information Commissioner upholding our application
of s43(2) in relation to these, as well as a decision from the Information
Tribunal also upholding the use of this exemption. We once again refer you
to these refusal notices and decision notices if your question relates to
the schedule of rates applicable to TfL’s contract.

 

It appears drivers, fleets, hauliers, or their insurers are charged a
higher set of rates than TfL which would be odd. If so, please:

 

 5. Explain why this is permitted, considered reasonable, appropriate and

 

TfL will not comment on the above assumption. We do not hold this
information and we do not have to answer it if it requires creating new
information or giving an opinion or judgment that is not already recorded.

 

 6. What auditing or monitoring TfL undertakes of Kier and

 

TfL undertakes monitoring of the contractor’s performance in relation to
Highway Maintenance activities.

 

 7. Provide a copy of the last audit insofar as damage repair is
concerned.

 

As you are aware, TfL does not monitor third party damage repairs under
£10k.

 

 8. Explain the permitted adjustments Kier may make to their sub-threshold
rates over the years and

 

As stated in the ICO Decision Notice referenced here:
[3]https://ico.org.uk/media/action-weve-tak...
and explained in other FOI replies to you (including FOI-1706-2021), TfL
does not hold information on the prices charged to third parties or the
process Kier follow when collecting these charges as the contract does not
provide a provision for this

           

 9. Advise what action you undertake to ensure Third Parties using the
city’s roads are not subject to higher, excessive and /or profiteering
rates.

 

As also explained to you in our response to FOI-1706-2021 but repeated
here, the LoHAC Best Value clause is shown below:

 

17. Quality and Best Value

 

17.1 The contractor acknowledges that each employer is a best value
authority for the purposes of the Local Government Act 1999 and as such an
employer may be required to make arrangements to secure continuous
improvement in the way it exercises its functions, having regard to a
combination of economy, efficiency and effectiveness. The contractor
assists each employer (where applicable) to discharge each employer’s duty
where possible and, in doing so, inter alia carries out any review
reasonably requested by the employer.

 

Separately, it is noted that your recent FOI requests to us over the past
few months have contained a significant amount of repetition and overlap,
particularly on the subject of Kier’s schedule of rates, but also on other
matters surrounding the LoHAC. A growing number of these requests are
asking for information that has already been provided to you or that have
been addressed extensively through the full appeals process many times.
Please be aware that if we consider that future requests continue this
pattern of requesting information that has already been previously
provided or a subject matter that has already been extensively addressed
we may choose to rely on section 14 to refuse any such request. We
encourage you to consider the ICO’s guidance on making the best use of the
FOI Act here, in particular the ‘Dos and Don’ts’ listed towards the bottom
of the page here:
[4]https://ico.org.uk/your-data-matters/off....

 

If this is not the information you are looking for please feel free to
contact me.

 

Please see the attached information sheet for details of your right to
appeal.

 

Yours sincerely

 

Gemma Jacob

Senior FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

 

[5][TfL request email]

 

 

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Dear FOI,

for the sake of clarity, simplicity, please see the request at:
https://www.whatdotheyknow.com/request/k...

I do not beleive I am being assisted or provided clear answers and am seeking an internal review.

Yours sincerely,

Mr P Swift

FOI, Transport for London

TfL Ref: IRV-014-2122

Thank you for your email which was received by Transport for London (TfL) on 24 June 2021.

You have stated that you are dissatisfied with the handling of your request for information under the Freedom of Information Act.

A review will be conducted by an internal review panel in accordance with TfL's Internal Review Procedure, which is available via the following URL:

http://content.tfl.gov.uk/internal-revie...

Every effort will be made to provide you with a response by 22 July 2021. However, if the review will not be completed by this date, we will contact you and notify you of the revised response date as soon as possible.

In the meantime, if you would like to discuss this matter further, please feel free to contact me.

Yours sincerely

Emma Flint
Principal Information Access Adviser
FOI Case Management Team
Transport for London

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FOI, Transport for London

Dear Mr Swift,

I am writing to you further to your request for internal review.

Your email asking for an internal review is unclear on which element of the request you are seeking to appeal. Having looked at the response you were issued with, it appears as though all of the questions were covered and the requested information was provided (where possible) and some advice and assistance was given so I require some clarification on what you would like the internal review to cover.

Therefore, if you could please specify exactly which element of the response you would like to appeal (for instance is there a specific answer you do not believe to have been sufficiently addressed?) this will ensure our resources are effectively deployed on addressing any specific elements of the response which you may be dissatisfied with.

Yours sincerely

Lee Hill
Information Access Manager

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Dear FOI,

Regarding my IR. I ask to be provided the damage to property rates (however they are described). Such rates, those for repairs, are not commercially sensitive. The request supersedes those to which TfL has referred. This request should be considered in relation to the more recent (04/2021) decision EA/2020/0390 that saw rates disclosed i.e., they are not commercially sensitive.

Furthermore, TfL’s description ‘term contract rates’ is relatively new to me, being used by you 07/07/201 in the above thread. Specifically, I asked:

‘Where damage is caused to 'street furniture' all costs up to a repair value of £10k are included in the annual lump sum price. The contractor can seek reimbursement from a third party, the rates for recovery are not
included within the contract. It therefore appears any and all sub-£10k claims are attended to by the contractor, you are not billed. Please explain the process for above £10k; 1. how is a claim compiled, using what rates?’

You responded:

• ‘The claim would be compiled primarily using the term contract rates.’ Adding ‘The term contract rates are adjusted annually for inflation’.

I am seeking the ‘Term Contract Rates’ (TCR), the rates used to bill you for above threshold claims following damage to the highway or street furniture following a collision, spill or fire.

Whilst you may not hold Kier’s Schedule of Rates (the ‘KSoR’) for sub-£10k (threshold) claims, they are available here:
https://www.englandhighways.co.uk/dcp-cl...

It is a matter for you whether you wish to cross reference the KSoR Kier charge drivers, fleets, hauliers, or their insurers (Third Parties) sub-£10,000 with the TCR. I am however concerned that you are preventing me from doing so.

Should you undertake such a cross-referencing exercise:

1. Please confirm whether the KSoR and TCR are the same

If you do not wish to cross reference KSoR and TCR:

2. please provide me with the TCR and I will do so.

I simply wish to confirm that the rates being charged to a Third party are the rates being charged to TfL as it would be odd if a Third Party were liable to Highways England for the damage in one sum if sued by an Authority itself and in a different sum if sued by that Authority via their contractor. This is reflected in the judgement of HHJ Godsmark https://www.englandhighways.co.uk/15-02-...

However, at present, it appears this is what is happening; lower rates to TfL, higher rates to a Third party. I feel sure you would not wish to see such abuse of road users, or their insurers, being progressed in your name and would welcome an open handed approach to either confirming such conduct is not occurring or, if it is, putting an end to it.

I await the information requested which, as you will understand, can be limited to the TCR, year on year.

I have not previously specifically sought the TCR, the TCR have not been supplied. The issue clearly affects many parties and the seriousness of the issues can be understood by the decision EA/2018/0088 https://www.englandhighways.co.uk/13-12-...

Please do not assume I am seeking information in relation to sub-£10k claims. The request is specifically about above threshold matters.

I trust the above clarification is of assistance and enables the prompt release of information.

Yours

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

this request stems from
https://www.whatdotheyknow.com/request/k...
which it appears TfL are considering separately

FOI, Transport for London

 

Dear Mr Swift,

 

Thank you for your clarification.

 

The matter of rates has been covered extensively and our position has been
set out repeatedly. Additionally our response in the context of the
decision you have cited was addressed in depth in IRV-056-2021. To
confirm, our position remains unchanged and all of the relevant arguments
in support of our position can be found within the decision notices
referred to in that internal review response that you will have also
received and in other FOI responses which we trust you have access to.

 

The usage of the phrase 'term contract rates' in the response you refer to
was to describe the rates that are contained within a contract for the
duration of its term, in response to a non-specific question about claims
generally. It is not a defined term within our contracts and, in this
context, should be considered as describing the Schedule of Rates. This
term was intended as a generic explanation rather than referring to a
specifically defined set of rates known as ‘term contract rates’ (which do
not exist). I am sorry if this caused any confusion.

 

The schedule of rates, as you are aware and as explained above, have been
extensively considered by TfL, the Information Commissioner and the
First-Tier Tribunal to be commercially sensitive and therefore we can not
provide information on these rates. To confirm, our position remains
unchanged and all of the relevant arguments in support of our position can
be found within the decision notices referred to and other FOI responses
on this subject.

 

Therefore, to confirm, ‘Term Contract Rates’, as has been interpreted, do
not exist other than as within the Schedule of Rates, which we consider to
be commercially sensitive and therefore exempt from disclosure.

 

However if you are dissatisfied with the internal review actions to date
you can refer the matter to the independent authority responsible for
enforcing the Freedom of Information Act, at the following address:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

A complaint form is available on the ICO’s website ([1]www.ico.org.uk).

 

Yours sincerely

 

Lee Hill

Information Access Manger

FOI Case Management Team

Transport for London

 

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Dear FOI,

You are referring to an out of date Tribunal decision.

03/2021 the issue was revisited, rates held by Highways England and released because they are not commercially sensitive. The decision can be found here: https://www.englandhighways.co.uk/appeal...

You possess the rates, they are not commercially sensitive, I therefor expect to be provided them.

It appears you are creating an odd situation, enabling your contractors to charge drivers, fleets, hauliers or their insurers (Third Parties) more than they charge TfL; seemingly enabling, assisting profiteering and that this is the reason for you withholding the information. I remind you It would be odd if a tortfeasor (Third Party) was liable to an Authority for diminution in value of a damaged chattel in one sum if sued by the Authority itself and in a different sum if sued by the Authority via their contactor (see: para. 25 HHJ Godsmark - https://www.englandhighways.co.uk/15-02-...)

Yours,

Mr P Swift

Mr P Swift left an annotation ()

to ICO 07/08/2021 @ 08:12

Mr P Swift left an annotation ()

4 September 2021
Your information request to Transport for London
Our reference: IC-123349-X6B1
https://www.whatdotheyknow.com/request/k...
Thank you for your correspondence received 7 August 2021 in which you made a complaint and provided supporting information about Transport for London’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.
In the meantime, it would be helpful if you would send to us a copy of your original request for information to the Environment Agency, which I’ve been unable to identify in the material you’ve sent to us.

Mr P Swift left an annotation ()

To ICO:
You have written:

In the meantime, it would be helpful if you would send to us a copy of
your original request for information to the Environment Agency, which
I’ve been unable to identify in the material you’ve sent to us.

Please identify where within my request for which you provide the TfL request link @ WDTK of https://www.whatdotheyknow.com/request/k... I have made reference to ‘the Environment Agency’.

Mr P Swift left an annotation ()

06/09/2021 From: ICO Casework
Sent: 06 September 2021 11:07
Subject: Your email to the ICO - Case Reference IC-123349-X6B1

Thank you for your email of 6 September 2021. The reference to a request and the Environment Agency was an error on my part, which you can ignore.
Yours sincerely
Cressida Woodall
Senior Case Officer
Information Commissioner's Office