Dear Highways England Company Limited,
Sent: 04 April 2020 13:50
Subject: Highways England FoIA re Payments & Information Your Ref: HE112/003/SG148 Our ref: X07B860

By way of background, to assist with the ease of directing this request and locating the information, the above references are for a 2014 incident. The claim is for over £66,000. The costs were not provided to HE by Kier Highways for years. Yet, other than as a favour, there appears no reason why this claim was met from the public purse, why Kier Highways were compensated by taxpayers and in turn, why Highways England are ‘troubled’ by it.

It appears Highways England have simply paid something upon a commercial basis (?) which cannot be validated (because it fell outside the contractual process), in turn that the loss cannot be proved to reflect the reasonable costs of repair and so is not recoverable from a third party.

Your contractor has written about this claim:

'Please find attached final costs together with supporting documentation.
In this instance, the final costs are approximately double the estimated costs, and we are submitting these later than the usual 4-month deadline.'

The above is somewhat understated; the claim being in 2014, it appears the costs were unavailable until 2018, possibly 2019. Indeed, the day after writing as above, Kier wrote:

'Please accept my apologies as we appear to have made a mistake in calculating this final account. Please may we withdraw this claim in order to re‐submit at a later date.'

I am reviewing another Kier matter (our ref. X09C464) for over £17,000 which was retained by Kier Highways, not summitted to Highways England. The explanation provided by ‘your’ lawyers is:

‘The claim was priced outside the timeframe of the TR430 scheme and was no longer an option.‘

Whilst my suspicion is that the above statement is false, that the claim fell below £10,000 using ‘mates rates’ (those to HE) and when re-priced using TP rates, was substantially over, the ‘time frame’ exclusion has been cited as though final. Seemingly, a claim over £10,000 ‘priced outside the time frame’ cannot be pursued with Highways England. However, we are presented the subject bill.

Once again I am presented a contradiction that necessities the use of FoIA as HE fail to address requests in accordance with your ‘business as usual’ policy; it appears I am treated prejudicially.

I am seeking:

1. The information in support of meeting this claim; why it was paid. The value suggests it is outside of a handler’s authority i.e. there will exist exchanges questioning and supporting the conduct.

2. the TR430 scheme information; all information relating to Kier contracts, in Areas 3 and 9 that set out the requirement to submit information, how, the penalties and exemptions. This will include:

a. the section of the contract that deals with submission of costs, invoices or claims associated with DCP works, the ‘time limits’ etc.

I anticipate some information will be held in Annex 23 ‘Where the actual cost of the relevant repair exceeds £x within ‘y’ days of becoming aware of the incident the Provider issues a completed form TR430 to the Service Manager’. I am seeking the information for Areas 3 and 9 and any changes since the commencement of the contract. I recall, as an example, the threshold changing from £5,000 to £10,000 and subject the date this occurred, there may well exist an amendment to the contract.

b. the process of a contractor ‘withdrawing’ a claim.
c. Changes to the agreement, variations, over the years
d. The TR430 forms (copies of, the versions) used from 01/2014

3. The TR430(s) for this claim displaying version number and

a. Accompanying correspondence with date of submission/receipt

4. The date payment(s) of the invoice(s) was made and
a. in what sum(s)

It Is possible a payment was made and that there have been amendments, credits or further invoices raised over time. I am seeking all – the complete payment/refund history.

I note, by reference to Annex 23 of the Area 9 ASC:

'Should the Provider be unable to complete all the details in form TR430 at the time required the Provider completes such details as he is able. The Provider submits any outstanding information within 30 days of completing the repair to the Green Claims Branch in order to update the TR430 form.'

The subject incident occurred 07/2014. The repair was completed in late 2014. The costs do not appear to have been unavailable for years after completion.

In July 2016, two years after the incident, Kier wrote to you:

‘Apologies for the considerable delay with this claim, the operations team have provided a small section of the paperwork to our team, however we still have a long way to go with the rest of the paperwork and reconciling all of the costs to ensure everything is accurate.’

21/05/2017, almost 3 years after the incident, Kier wrote:

Apologies for the late reply, I am very sorry that we haven’t been able to get a final cost for this claim over to you as yet, this one has been a bit of a nightmare for us to deal with due to the issues mentioned below and our current high workload and low staffing levels.

I’ve discussed this claim with [DCP manager] and myself and [redacted] will put together a final cost for you based on the information we have currently, I’m afraid that due to the age of the incident and the difficulties we’ve had it won’t be perfect, but we’ll do our best to provide you with as much information as possible!

Your handler was manganous:

'Hey, that will be absolutely fine. I think we can let off one problematic claim given all the hard work you’ve done through the years.'

5. I am seeking all information about the billing process; the continuity. I wish to confirm my understanding (below) is correct.

a. How is the bill received from Kier
b. What is the route it follows
c. What is the checking process pre-payment
d. At what stage is it passed to Green Claims

6. With regard to this claim I am seeking:

a. the continuity and
b. any examination / authorisation pre-payment
c. When and how were HE first made aware of this matter – the information you received - what information, correspondence and costs accompanied the original approach from Kier, the notification?
i. I anticipate receiving all information to and from TR430 @ highways.gsi.gov.uk or the point of contact from 2014 forward

The TR430 form (V4.11) states: Important - This form must be used when reporting damage to crown property. If it is not possible to complete the form within the time limit specified in the Contract, such information as is available should be sent to: TR430 @ highways.gsi.gov.uk and the additional information sent as soon as possible thereafter

d. the notes and / or recommendations etc.
e. the reconciliation of the charges and payments have occurred since the claim was first notified
f. the information supplied at every stage, for example the ‘as much information as possible’ referred to (21/05/2017 – above).
g. it is evident information was provided piecemeal. I am seeking the information supplied and accompanying information with the date it was received together with responses form Highways England.

I am also seeking the following information:

7. Since 2014, how many Kier claims, over £10,000, received outside of the deadline have been paid by Highways England

a. what are the values of same?
b. how many remain open i.e. unpaid by a Third Party
c. how many have no Third Party to claim from

I would appreciate the above in spreadsheet format – all information your record about this aspect of claims.

I understand performance targets for each of the Service Providers are in place, within their respective contracts, to monitor both performance and revenue.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

This is an automated response:

 

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If you’re reporting a real time issue which requires immediate attention
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A map of the roads for which we are responsible can be found here
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Mr P Swift left an annotation ()

From Highways England ref:
FOI 101035
Given the nature of the request and your previous submissions under the Freedom of Information Act, you are aware of what can be considered a reasonable request under the Act. However, you continue to submit requests that not only include a large number of questions on a variety of different topics but also include very general requests, such as the one detailed above where you ask for ‘all information you record about this aspect of claims’.
With this in mind, Highways England is treating this request as vexatious pursuant to Section 14(1). We feel it would impose a grossly oppressive burden on the Company to locate, review and prepare the information for disclosure and, furthermore, that the repeated submission of lengthy requests of this nature is done to cause disruption to the Company.
In accordance with comments made in Information Commissioner v Devon County Council & Dransfield (2012) we consider your request to be an improper use of a formal procedure, and is thereby vexatious.
Therefore, please take this response as a refusal of your request under Section 14(1). Please note that Highways England reserves the right under Section 17(6) of the Freedom of Information Act 2000 to not issue further refusal notices for requests on this subject matter.

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 'Unnecessary Payment from the Public Purse'.

I am seeking an internal review

My request followed a failing by you to comply with ‘business as usual’ process; this is a claim related matter and you failed to respond within 15 working days. I was forced to engage FoIA. Indeed, the matter is the subject of a separate complaint as it appears you are unable to elicit information from Kier Highways or have failed to attempt this – but advised to the contrary. In turn, your FoIA response about the exchanges is also with the ICO.

If there was a concern regarding the extent of my request, you know how to contact me, advise and seek an abbreviated version. Indeed, it appears you have overlooked the action you took upon first receipt of my request of 01/04/2020. The following day you explained that my request was unclear:

Unfortunately I did not find it very clear as to what you were requesting be logged as a freedom of information request. Please can you clarify if you are requesting that points A – J are logged as a new freedom of information request. If that isn’t the case please can you clarify what you are requesting under the Freedom of Information Act to enable us to complete the searches for any information held.

You raised no issue regarding the extent of the request, you would ‘complete searches’. That same day I responded, my reply also under the same appendix. It is brief:

Your prompt response is appreciated and I apologise for any confusion, leave this with me.

Clearly, I was contrite; there was no intention to confuse, this serves me no purpose and is not the manner in which I conduct myself. I am keen to obtain pertinent information. I was also valued your quick reply, it boded well.

I took the time to review what I had written and at your request, clarified matters writing 04/04/2020. I set out the information clearly, concisely. I received no further questions, no suggestion that my request was unclear, excessive or would pose a problem.

# At what date and time did you consider the request potentially vexatious or oppressive?

I note that you have left it until the 11th hour to refuse the information.

Yours faithfully,

Mr P Swift

Dear Highways England Company Limited,

Please advise by when I can expect the outcome of the review.

Yours faithfully,

Mr P Swift

Highways England, Highways England Company Limited

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
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If you’ve made a request under the Freedom of Information Act we will
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Mr P Swift left an annotation ()

to ICO 22:01 03/08/2020

Mr P Swift left an annotation ()

01/09/2020 ICO Casework icocasework @ ico.org.uk>
Subject: ICO Case Reference: IC-49160-H5B1

Thank you for your correspondence of 3 August 2020 in which you complain about the time taken for the above public authority to carry out an internal review you requested on 5 May 2020.

I have written to the public authority to provide it with a copy of your request for internal review, and have instructed it to issue you with a response within 10 working days.

FOI Advice, Highways England Company Limited

1 Attachment

Dear Mr Swift,

 

Please find attached the internal review ref. IR 101035 of your freedom of
information request ref. 101035.

 

Kind Regards

 

Jonathan Drysdale

Freedom of Information Officer (HE)

Information & Technology

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

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[3][Highways England request email]

 

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Mr P Swift left an annotation ()

From HE:

Further to your email dated 5 May 2020 regarding an internal review of our response to your request under the Freedom of Information Act 2000, it has been passed to me to conduct an internal review of the way in which your request (Ref. FOI 101035) was handled. Please accept my apologies for the delay in providing this to you.

In your e-mail dated 4 April 2020 you made a request for information about, amongst other things, information on an incident from 2014 and the claims process. The request consisted of 27 separate points to be addressed, which included a request for all information about this claim.

On the 5 May 2020 Highways England provided a response under FOI 101035 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 to locate, review and prepare the information for disclosure and, furthermore, that the repeated submission of lengthy requests of this nature is done to cause disruption to the Company.

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. You contest in your request for review that because you were contacted regarding the submission of an e-mail to the Head of Green claims on the 1 April 2020 and raised no concern regarding the extent of the request at that point. Please note that you were contacted about your 1 April 2020 because it was unclear what you were requesting and whether you were in fact making a freedom of information request at all because your e-mail appeared to be more of a complaint about a process. We contacted you to see if there was a request and what it was you were requesting at this time. If there was a request in there it appears that you have taken up a practice whereby you submit a freedom of information request hidden within another form of correspondence. This alone could be viewed as vexatious on the basis to cause annoyance to the authority by which it has to search through lengthy correspondence to locate any request that it may contain.

I would also like to point out that your original correspondence appeared to include only 10 points (alphabetised) if those were what had been intended to be the request and your clarification consisted of 27 points (alphanumeric) i.e. almost tripled. You are correct that we did not contact you prior to our refusal to say the request was excessive, this is because we were not considering the request under Section 12 for cost. The search for and the extraction of the information was not the oppressive issue and this is the main factor in applying for a reduction in scope under Section 12. The oppressive issue was the volume of information requested that would have to be reviewed for possible exempt material and redactions, this cannot be charged for under Section 12 but can be considered under Section 14(1) as vexatious. There is no function for an authority to ask for a reduction in scope unless it breaches the cost limit under Section 12 and as this did not apply it was considered that your request should be refused because it would place a grossly oppressive burden on the authority to comply with.

Therefore, as noted above and based on the arguments put forward, I have concluded that your request was correctly refused as vexatious under Section 14(1) of the Freedom of Information Act 2000 and that given the fact that on multiple occasions you have been directed as to what an appropriately sized, reasonable and concise request is, Highways England reserve the right not issue further refusal notices under Section 17(6) of the Act if further requests of this nature are made by yourself.

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

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Yours sincerely

Jonathan Drysdale
Freedom of Information Officer

Dear FOI Advice,

For the benefit of the ICO to whom I will now present this matter:

It is correct I made a request for information in 05/2020 and that it has taken you 4 months to achieve the current position.

The request related to an incident from 2014 and the claims process. I have been very specific citing your reference. Much of the information could likely have been provided 'in the usual course of business' but this does not occur. Therefore, it is non-compliance with your own 15-day process that forces me to engage FoIA.

I also have to be specific because, as a Judge found, it is your conduct that is inappropriate, the examples cited appearing to fit 'vexatious' http://www.englandhighways.co.uk/release.... Your 'harassment' exemption being dismissed, my request having a serious purpose whilst you provided INADEQUATE / INACCURATE RESPONSES and WRONG INFORMATION.

The claim is for over £66,000. The costs were not provided to HE by Kier Highways for years. Yet, other than as a favour, there appears no reason why this claim was met from the public purse, why Kier Highways were compensated by taxpayers and in turn, why Highways England are ‘troubled’ by it. You elected to involve yourselves - for reasons as yet unknown and in turn, gave rise to my request.

I believe your reference to the specific claim undermines your own objection; this is a matter in respect of which I have an interest (acknowledged) and the points targeted. The intention is therefore obvious.
The request is clearly just that, as opposed to a complaint.

The original complaint of 10 points caused you problems, as you identify; you sought clarification. It appears I added too much by way of clarity.

You appear to be confusing volume with intention, your differentiation is muddled and I would welcome some clarity; I am asking for too much but not such that it would exceed the prescribed limit ergo, you do not like the request but accept I have an interest in the specific subject.

This is a current claim, yet to be settled which involves schedules of DCP rates. The claim is a Kier Highways Area 3 matter, the contractor using a CBD when billing yourselves. The CBD is populated by other workbooks, schedules of DCP rates. It appears the withholding of information is further intended to keep from me references to these linked workbooks.

Yours sincerely,

Mr P Swift

Mr P Swift left an annotation ()

To the ICO 15/09/2020

Mr P Swift left an annotation ()

From: ICO Casework <icocasework@ico.org.uk>
Sent: 23 September 2020 09:07
Subject: ICO Case Reference: IC-49160-H5B1
Case Reference: IC-49160-H5B1

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

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

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

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