Pain / Gain Share Arrangement Areas 9 & 10

Waiting for an internal review by Highways England Company Limited of their handling of this request.

Dear Highways England Company Limited,

I have (31/01/2020) been advised that the pain/gain share arrangement extended to Area 10 also. In a 2016 FoIA response 743153Highways England stated:

• All contractors reconcile their costs annually against their recoveries.
• If the proportion of traced incidents exceeds expectations an assessment would be made and the Lump Sum payment would be reduced.
• However, no contractor has ever been in the position where the proportion of traced claims exceeds these assessments and there are various factors for this. The main one being not all damage linked to a driver is reported by the driver.’’

I was subsequently informed a pain/gain share is NOT used by Highways England for Green Claim repairs, that this was a direct result of a challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers. Clearly, I was NOT acting under an incorrect premise. In fact, my understanding of the arrangement was correct as at the 2016 date of the FOI response 743153 ),.

If your latest response is accurate, the pain/gain share ceased due to intervention by insurers. This intervention must have been after the 2016 FoI response. However, it is also apparent that the process WAS in place for a period yet I have been provided with no information about this.

Please provide for Areas 9 & 10:

1. The original pain/gain correspondence, arrangement, contractual records etc. that relate to the pain/gain arrangements
2. When the arrangement commenced
3. When the arrangement concluded – it is evident this was in place at the time of the 2016 FoI response
4. the pain/gain submissions
5. All information relating to the challenge by insurers
6. How the pain/gain share impacted upon insurers
7. The correspondence between your contractors and Highways England about the concern raised by insurers, the contractor's consideration and the agreement to change the contractually agreed process

In brief, I am seeking al information relating to the pain/gain share in Areas 9 & 10 from its period of operation to termination and the reasons for this cessation.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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FOI Advice, Highways England Company Limited

2 Attachments

Dear Mr Swift,

 

Please find attached the response to your freedom of information request.

 

Kind Regards

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

 

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Highways England Company Limited | General enquiries: 0300 123 5000
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Birmingham B32 1AF |
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[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. Your response is patently incorrect, appearing intended to obstruct and frustrate; vexatious.

My request is a follow-on from the previous request to which you refer and arises due to the false statements you have made, the ’misunderstanding’ you have caused which resulted in an apology. The latter appears to be insincere as, in an attempt to unravel your contradictory accounts, I have sought further information which you now obstruct.

This request follows on from the one you cite (100025) in which you state:

A. the process (pain/gain) has been used but stopped prior to 2015 ('c' above)
B. it stopped because insurers objected ('a' above)

I have therefore sought the following information:

1. The original pain/gain correspondence, arrangement, contractual records etc. that relate to the pain/gain arrangements
2. When the arrangement commenced
3. When the arrangement concluded – it is evident this was in place at the time of the 2016 FoI response
4. the pain/gain submissions
5. All information relating to the challenge by insurers
6. How the pain/gain share impacted upon insurers
7. The correspondence between your contractors and Highways England about the concern raised by insurers, the contractor's consideration and the agreement to change the contractually agreed process

The above has NOT been raised in the previous request (100025). Clearly I could not seek the information (at ‘1’ to ‘7’ above) as I was unaware until your response, what explanation would be provided. The above questions arise from 100025 yet another U-Turn Highways England has performed.

Yours faithfully,

P. Swift

Our ref: FOI 100025

I will try to explain a misunderstanding

The extract from Highways England Ref: FOI 743,153 (repeated below) is incorrect and as such should not have been sent to you.

All contractors reconcile their costs annually against their recoveries. If the proportion of traced incidents exceeds expectations an assessment would be made and the Lump Sum payment would be reduced. However, no contractor has ever been in the position where the proportion of traced claims exceeds these assessments and there are various factors for this. The main one being not all damage linked to a driver is reported by the driver.’’

The process described above did not and does not exist in the Asset Support Contracts (ASC).

It is not practical for Highways England nor our contractors to establish a precise number of damage incidents on our network and hence the proportion of incidents caused by traced and un-identified drivers. While some un-identified driver damage incidents can be obvious, many others by their nature are not and the damage to the asset may not be established until sometime after the event. Un-identified driver damage incidents tend to be those causing the least obvious damage to both our asset and also the vehicle involved as evidenced by the fact the vehicle has driven way from the scene and off the network unnoticed.

The Lump Sum in ASCs generally remains unchanged throughout the life of the contract apart from annual adjustments due to indexation and other factors (eg tendered efficiencies, etc.) or very occasionally if there is a significant change to the contract that is negotiated between the two parties requiring an adjustment to the contracted Lump Sum.

In respect to schemes work New Engineering Contract (NEC) Option C Target Price with a pain/gain share is used by Highways England in ASC’s for most scheme work.

This is not used for Green Claim repairs in the more recent Asset Support Contracts. This was a direct result in previous Manging Agent Contracts of challenge by insurers who were not prepared to accept any pain/gain approach in their payment of claims for damage repairs from negligent drivers. NEC Option E cost reimbursable (or Defined Cost plus Fee) approach is therefore used for DCP repair work.

So for clarity there is not an annual review of Lump Sums related to Green Claims in ASC. In addition, the use of pain/gain arrangement is for scheme work and is not used for Green Claim repairs and has not been used since prior to 2015.

We apologies for the error in Highways England Ref: FOI 743,153 and any resultant misunderstanding of the how the ASC worked in this respect. We trust this clarifies this aspect.

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached the internal review ref. IR 100802 of your freedom of
information request ref. FOI 100802.

 

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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Dear FOI Advice,

You state the information is not held, that I have made this request before. Both are incorrect and appear to stem from assumptions on your part, that I am referring to the ASC.

I have sought corroboration of your statements that there was a pain/gain share which ceased; its termination and the reasons - you have cited the latter on numerous occasions.

I am seeking the information in respect of the Areas, not the contracts, without specifying any time frame as, to date, I have been obstructed. You have not stated when said pain/gain terminated. For this reason, my request needs to be non-specific with regard to time/contract.

I appear to be the subject of further semantics; you are writing in respect of ASC (contracts) seemingly to avoid the disclosure of information pre-dating these (if in fact, this is when the pain/gain concluded).

I await the disclosure of the information without further delay.

Yours faithfully,

Mr P Swift

Mr P Swift left an annotation ()

to ICO 16:23

Mr P Swift left an annotation ()

ICO Case reference IC-37934-M7T7

Mr P Swift left an annotation ()

17/08/2020 from ICO

HE responded on 4 March 2020 citing section 14(2) and stating that this was a repeat request. HE argued that it had already provided a response under FOI 100025 on 20
September 2019 which had explained that the request stemmed from an error that had occurred in FOI 743,153 and a subsequent misunderstanding by you. The information
was not held, though this had not been clearly stated in FOI 100025.
On the same date you asked for an internal review. You contended that your request had emerged from FOI 100025 and that you had not asked questions 1-7 in that
previous request.
HE provided a review response on 3 April 2020 in which it maintained its original position. HE stated that the questions had been addressed in the response to FOI
100025 and its review. It was explained that the pain/gain arrangement had never existed in the ASC contracts. The review conceded that the fact that the information was
not held had not been explicitly stated.
On the same date you wrote back to HE to say that you were seeking information in relation to Areas, not contracts, without specifying any time frame.
The scope of the case The focus of my investigation will be to determine whether HE handled your request in accordance with the FOIA. Specifically, I will look at whether HE is entitled to rely on section 14(2) as a basis for refusing to provide the withheld information.
Please contact me within the next 10 working days, that is, by 31 August 2020 if there are matters other than these that you believe should be addressed. This will help avoid
any unnecessary delay in investigating your complaint. If I do not hear from you by this date, my investigation will focus only upon the matters identified above.

FOI Advice, Highways England Company Limited

Dear Mr Swift,

 

Following discussions with the Information Commissioner’s Office (ICO) and
in light of the submissions we have made regarding the questions raised of
the ICO’s investigation, Highways England has concluded that it has
incorrectly applied Section 14(2) of the Freedom of Information Act 2000
to your request. The use of Section 14(2) in this case was used to
indicate as we have done with other requests on the subject of pain/gain
arrangements its application to third party claims, that Highways England
does not hold the information request, although I do acknowledge that the
example used in FOI 100802 (FOI 100025) does not explicitly state this.

 

Given this and because of our writing, issued today 2 October 2020, on
another of your complaints IC-45200-H4G7 also on this subject where we
have withdrawn the use of Section 1, we are now withdrawing the use of
Section 1 to this request and are instead refusing the request under
Section 12 of the Freedom of Information Act 2000 as it exceeds the
appropriate cost.

 

The reason it has been refused under Section 12 is due to the amount of
documents that are returned when undertaking keyword searches for
information on Pain/Gain share and the areas stated in your request,
namely 9 and 10. These searches returned such large volumes of documents
that the cost to review and check for relevance to the request would
exceed the appropriate cost. In addition because of the large number of
documents returned from the searches there is no advice or assistance that
could be provided that would enable the request to be reduced to an
appropriate size so to come within the reasonable costs. An example
demonstrating the number of documents returned is below which demonstrates
even narrowing to a single search term would mean an the cost of the
request would be exceeded.

 

  Key word
Area/Contractor Gain share Gain Pain share Pain
Area 9 2787 38370 1970 12649
Area 10 5382 43907 1671 20543

 

 

Whilst Highways England colleagues are all in agreement regarding their
high degree of certainty that the information requested isn’t held, the
legislation requires absolute certainty in order to apply Section 1
information not held, which as indicated earlier and in our internal
review the Section 14(2) response was implying to this request. As such
because the large volume of documents that would have to be reviewed to
ensure that certainty would exceed the appropriate cost our response of
Section 14(2) repeated request, indicating information not held, is
subsequently withdrawn and replaced with Section 12 of the Freedom of
Information Act.

 

If you are not satisfied with the outcome of this review you have the
right to apply directly to the Information Commissioner for a decision.
The Information Commissioner can be contacted at:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD

Web: [1]http://highwaysengland.co.uk

 

 

This email may contain information which is confidential and is intended
only for use of the recipient/s named above. If you are not an intended
recipient, you are hereby notified that any copying, distribution,
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strictly prohibited. If you have received this email in error, please
notify the sender and destroy it.

 

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

 

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

 

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3. mailto:[Highways England request email]

Dear Mr Drysdale,

Would Highways England make up their collective minds with regard to the pain/gain share:

10/2016 - it does exist
09/2019 - it does not exist
11/2019 - it does exist
10/2020 - it does not exist - 'vexatious' cited, then this being obviously inappropriate, 'cost'.

The vexatious party is Highways England; I should not be the subject of conduct that is now beyond slapstick. http://www.englandhighways.co.uk/pain-ga...

Yours sincerely,

Mr P Swift