Complaints procedure and complaints precis
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Page | 1 HIGHWAYS ENGLAND Complaints Process Philip Swift Monday, 26 October 2015
Transcript of Complaints procedure and complaints precis
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HIGHWAYS ENGLAND
Complaints
Process
Philip Swift
Monday, 26 October 2015
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Table of Contents
Introduction ........................................................................................................................................ 3
Precis of issues with HE complaints process ................................................................................... 3
Contractor Complaints Processes ................................................................................................... 4
HE complaints process … ................................................................................................................. 4
Email to Gary Coates of 14/04/2015 ............................................................................................... 6
Email to Gary Coates of 19/06/2015 ............................................................................................... 7
SKANSKA.............................................................................................................................................. 9
SKANSKA: Current Position – contradiction … ............................................................................. 10
BALFOUR BEATTY .............................................................................................................................. 11
EM HIGHWAYS (EMH) ...................................................................................................................... 13
EMH Charges History ....................................................................................................................... 13
AIW & 1,153 incidents ...................................................................................................................... 13
EMH Current Charging Methodology ........................................................................................... 15
01/08/2015 rates............................................................................................................................... 16
EMH AIW Vehicles ............................................................................................................................ 17
EMH Complaints ............................................................................................................................... 18
EMH Provision of Data ..................................................................................................................... 21
EMH Claims management ............................................................................................................. 22
CONNECT PLUS M25 (CPM25) ........................................................................................................ 24
HIGHWAYS ENGLAND ...................................................................................................................... 26
HE ref: Z1516318/AXT/A5 CMA ref: S08B687 - request for review .............................................. 26
HE ref: Z1505995/AAF/A5 CMA ref: R03A344 – witness statement ............................................ 28
Freedom of Information .................................................................................................................. 30
Appendix I HE online complaints process.............................................................................. 34
APPENDIX II EMH AIW incident attendance charge calculation ........................................ 36
APPENDIX III Questions to EMH re charges .............................................................................. 37
APPENDIX IIII Request of EMH to justify charging methodology ........................................ 43
APPENDIX V FoIA request of EMH.............................................................................................. 45
APPENDIX VI email from CMA to EMH be BCC & information ............................................ 47
APPENDIX VII Re FoIA request of Connect Plus M25 ............................................................ 49
APPENDIX VIII HE information M25 Contract extract ............................................................. 51
APPENDIX IX Request of HE to undertake urgent audit of contractors ............................ 54
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Monday 26/10/2015
Dear Sara,
Introduction
I have at all times followed the guidance either on HE’s web site or provided by HE staff
when progressing complaint. Whoever, the system does not work; after submission there is
nothing heard ‘within 15 days’. Issues become lost and only one surfaced:
Precis of issues with HE complaints process
My initial approaches to HE (formerly HA) followed my inability to obtain updates on
claims from two contractors for ‘retained’ (sub-threshold) claims. My understanding is that
we are unusual in that we do not simply deal with quantum but will review liability; no
liability, no claim, no need to consider quantum.
Therefore, where we submit a robust defence to negligence and a contractor realises
they will receive no payment, they effectively discard the file and ignore us – it appears
the actions are petulant, unprofessional.
We are left with an insured who is aggrieved that their claim remains outstanding and
could affect their NCB (no claim bonus) for a commercial policy, the amount of the claim
counts against them at policy renewal.
We are faced with potential complaints. The insurer client is presented increased costs as
we attempt to resolve the matter.
The above, a relatively simple issue, has been the basis of my approach via the online
complaints facility. However, these submissions have disappeared into the ether with only
one surfacing.
Subsequently, when one did surface, I find HE telling me they will address the issues, the
contractor (Skanska) telling me HE will address the issue and subsequently HE telling me
the contractor will deal.
More recently I am being told repeatedly, in no uncertain terms, sub-threshold, retained
claims are nothing to do with HE, you hold not information, you have no interest in them.
This disclosure comes at a time when contractors, acting in the name of HE, appear to be
abusing their positon by charging excessive sums and withholding information.
Accordingly, when responding to you, I have included a precis of the situation with regard
to what appears to be an abuse of the privileged position in which your contractors find
themselves.
I touch upon your legal department and the aggressive, bullying tactics encountered.
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With regard to the specific cases listed below, please note, I am not seeking for HE to
become involved in the settlement process beyond ensuring that meaningful responses
are forthcoming within a reasonable period.
I do make generalisations about the claims handling process but understand each
contractor will have their own procedures and approach. However, these should not
differ greatly when it comes to liability; establishing whether a driver is in fact due to make
a settlement.
Contractor Complaints Processes
It does not appear contractors have a complaints process, or at least not a documented
one or one that fits the issues we raise in turn would likely be raised by the public.
Our interest (and in turn concerns which may escalate to complaints) is generally with
regard to those claims that a contractor retains and has responsibility for. These claims are
akin to an insurance policy ‘excess’ (or ‘deductible’); they are the claims to a specified
value that the contractor will retain and ‘take on the chin’ i.e. meet the cost of.
In some instances an at-fault party will be identified and the cost can be sought form
them, a recovery is possible. In other instances the damage is caused by an unidentified
party. Someone uninsured and a ‘man of straw’ or on the odd occasion an ‘Act of God’
occurs, such as a lightning strike.
It is the retained claims that fall below the agreed threshold that generally give rise to
concerns about the behaviour of contactors.
With regard to the M25 this ring-road appears to have bene leased for 30 years and the
contractor responsible for most if not all incidents and recoveries.
HE complaints process …
Ultimately, as contractors had failed to respond, I approached HE via their process,
defined on-line. I chased a number of submissions on 06/032015:
Sent: 06 March 2015 10:51
To: '[email protected]'; '[email protected]';
'[email protected]'; '[email protected]'
Subject: lack of response
Dear Sirs
We have found it necessary to raise a number of complaints with your contractors over
the past 6 months. Having discussed an issue with a member of the HA staff, we were
advised to progress the matter via [email protected] in the event the
contractor ignored us.
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The contractor(s) failing to respond we have emailed [email protected].
We have received an automated acknowledgement to each of our submissions (some
chasing the original):
However, on not one of the emails have we ever heard further. We note at:
www.gov.uk/government/organisations/highways-agency/about/complaints-procedure
You ‘aim to respond to all communications (letters, e-mails, faxes, telephone calls) within
15 working days of receiving them’ and . ‘f we are going to take longer, we will let you
know why and when we aim to reply’. However, as evidenced by the above, we have
not heard further.
Not wishing to raise a formal complaint about the lack of response / attention nor wishing
to place the issue into the public domain, please could you advise when we can expect
responses and address what appears to be a problem with the complaints avenue.
My thanks in anticipation.
P Swift
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Email to Gary Coates of 14/04/2015
I subsequently wrote:
From: Philip Swift
Sent: 14 April 2015 16:11
To: 'Coates, Gary'
Subject: complaints
Dear Gary
Please can you explain your role in respect of the emails I have found it necessary to send.
I have used a generic email address to raise issues about contractors – that they have
ignored correspondence. The generic email address appears not to be manned. I
suspect a response today has only resulted from the assistance extended by Jane Clarke.
I had expected responses to my emails within the time scale advised on your web site. Do
I need to raise a separate complaint about this?
It is unclear what, if anything has been done about my complaints. Presumably there is an
initial review / consideration process?
I do not understand why I am being advised to ‘jump’ a step.
It appears odd that I am being asked to provide a copy of all correspondence – the
impression received is that a hurdle is being created
That I am expected to post this all to the Chief Executive is bizarre – why would I not be
provided his email address?
Why, if a reference has been assigned, would you not possess my correspondence in a
filing system that was available to the appropriate party?
Having corresponded with Graham before, I assume I can send this email to
Why have all the emails I sent last night, all chasing a response to previous emails, been
assigned the same reference (contain identical text); how will each separate matter,
involving differing contractors and representing a separate claim statistic, be addressed
using a single reference?
Please provide me with the HA contact for each of your contractors / areas. I trust that
these will not be considered personal data. Please consider this a request made in
accordance with the Freedom of Information Act. I remain hopeful that I will not be
required to engage the Act to obtain further information about the complaints process
and what appears to be a failure at the point of initial notification.
My thanks in anticipation
Yours sincerely,
P Swift
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Email to Gary Coates of 19/06/2015
From: Philip Swift
Sent: 19 June 2015 08:16
To: 'Coates, Gary' Cc: '[email protected]'
Subject: RE: FORMAL COMPLAINT Your Ref: 2006901/13592 Our Ref: R03A359/PBS/LC
Gary,
I have used your online facility for registering a complaint without receiving a
response within the days advised.
I progressed the complaint to you and was advised to write to the Chief Executive, I
was asked to repeat my complaint!
I have written to the CE and my complaints remain ignored.
Unless I am being singled out for such behaviour, the system is ineffective and many
others will be unable to resolve issues with HE.
From the public's perspective, we are seeking to address claims that appear
inappropriate or excessive demands upon drivers The impression received is that
when presented with our arguments on low(ish) value claims, the contractor sees
nothing to be gained from replying to us and therefore elects to ignore. Whilst this
means we need to regularly update a client and they potentially incur greater
cost, a further concern is that an insured will have claim registered against their
policy which will affect their NCB (no claims bonus) until resolved. This can put the
public to unnecessary inconvenience, distress and financial hardship. Insurers incur
extra administration.
This situation appears to be particularly harsh for those with lower value cars (and
potentially lower income) as their vehicles are often insured TPFT; they will have
made no claim for the vehicle and likely walk away believing that (if not their fault)
they will hear no further. However, contractors approach them or their insurers,
often months later (another issue) who convey the bad news to their customer /
insured. Our attempts to address the claims fall on deaf ears.
Possibly the issue is a statistics one which needs to be investigated by HE? We are
aware that at least one contractor maintains 'write off data' i.e. records of how
many claims they abandon. We suspect all contractors act similarly. These total
losses appear to be 'performance indicators' for the contractor. This is of concern; if
the intention is to recover as much as possible, I question whether this results in a
more onerous approach to drivers i.e. dissimilar, more aggressive, methods than
would be adopted by HE.
We understand from a relatively high value claim that a contractor was (is?)
'problematic'. An FoIA response has indicated a contractor fails to evidence their
claims in some respects and the HE expressed a concern that recovery from insurers
may not be possible. The approach to drivers is in some respects concerning -
some contractors appear to be a further hazard for drivers to contend with.
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Please explain why our correspondence to some contactors and HE is ignored? We
do not experience this problem with HE save in respect of complaints.
I trust that I will receive a comprehensive response in the next 5 working days.
Yours sincerely
Philip
I submitted complaints but heard nothing for months (despite the process advising that I
would hear within 15 days). I was ultimately contacted about a Skanska issue …
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SKANSKA.
Three files are currently in the ‘void’; Skanska failed to respond to our emails and ultimately
we complained to HE.
R03A359 CMA instructed 09/12/2013 - £2,125.92
06/06/2014 I raised a complaint with Skanska. I asked Skanska to provide:
• The complaints process
• Your reference for the complaint
• Your HA contact
• The name and contact details for the party handling this complaints
17/11/2014 Having failed to illicit a response, I emailed '[email protected]'
FORMAL COMPLAINT Your Ref: 2006901/13592 Our Ref:
R03A359/PBS/LC
R07B204 CMA instructed 28/04/2014 - £2,117.50
15/10/2014 emailed Skanska:
We write in an attempt to avoid a formal complaint. Despite writing on a
number of occasions, our correspondence has not been the subject of a
response. We refer you to the exchange below and that we have
considered this matter withdrawn due to the lack of interest and / or
assistance displayed by Skanska.
17/11/2014 complaint raised '[email protected]'
FORMAL COMPLAINT - Our Ref: R07B204/LG & Your Ref: 2007112/13813/AG
S06B271 CMA instructed 24/03/2015 - £6,749.42
08/09/2015 the contractor failed to respond and we emailed Lydia Ward (HE).
We have not raised a complaint with HE, we emailed Lydia Ward to draw this additional
matter to her attention as it was being progressed by the same contractor as we had
previously approached HE about and understood Lydia was reviewing the matters.
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SKANSKA: Current Position – contradiction …
21/07/2015 10:20
From [email protected] Tina Holtom
Cc: [email protected] ; [email protected]
Subject: Formal Complaints
Highways England are currently producing a detailed response with regards to your
complaints and matters raised and this will be with you within the next 14-21 days.
21/09/2015 14:00
From: [email protected]
Subject: RE: Formal Complaints
I have spoken to Skanska and as I understand it, that they are responding to your
outstanding queries.
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BALFOUR BEATTY
R03A349 CMA instructed 06/12/2013 - £5,013
We raised a complaint with BB in 2014. We pursued the matter in 11/2014 and 12/2014
1012/2014 12:46
We emailed '[email protected]'; '[email protected]'
and '[email protected]'
Subject: COMPLAINT Your Ref: CESC0905/11/6/2/SA0748C Our Ref: R03A349/LCM
10/12/2014 We were advised by BB that the matter as with their legal department and
we would hear further, BB advising:
I do not currently have a timescale when you will be contacted but would
anticipate that it will be in the first quarter of next year.
We have raised the matter with HE subsequently but have received no updates
We have heard nothing further from BB.
Sent: 09 September 2015 19:48
To: '[email protected]'
To: 'Jim.O'[email protected]'
Cc: '[email protected]'; 'Misri, Nidhi'
Subject: FW: complaint is C/13/11 - CESC0905/11/6/2/SA0748C Our Ref: R03A349/ps
Dear Gary,
I have written to Balfour Beatty as below being concerned that the simple process and
courtesy of providing us an update in respect of a claim has not occurred. Is this
considered acceptable by HE?
The impression received is that where a contractor, such as Balfour Beatty, encounters
resistance to payment on a relatively low value claim, the issue is put to one side,
ignored. This is unacceptable.
Possibly this is a sign of the times in which we live, that attitudes and approaches are
changing on both sides; HE and contractors are keen to recover, insurers are (via the likes
of ourselves) reviewing processes / payments and realise that their previously relaxed
approach to claims was generous. On the one hand my vehicle insurers would likely be
concerned if I admitted liability following a collision, yet ironically, they appear more
inclined to do so (often prematurely) when presented a ‘public authority’ approach.
I have presented the issue (below) to HE, as I understood this was the correct process, to
escalate the matter via https://www.gov.uk/government/organisations/highways-
england/about/complaints-procedure. However, despite months having passed,
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notwithstanding chasing matters, I possess not one reference from HE. To be fair, with
regard to Skanska, I understand the issues raised have filtered down to HE personnel and
the issues are under review.
We are adjusters and I have 21 years with CMA; we look to remove friction, reach
agreements amicably by using sound principles and arguments. Raising a complaint is a
last resort and, we expect our approach to be treated with some concern,
professionally. However, the impression received is that the complaints process of your
contractors and HE is currently lacking, perhaps non-existent.
I ask to be provided the present positon of the complaints raised, an update in respect of
each, by the close of business 18/09/2015.
Yours sincerely
Philip Swift
Additionally, we raised a number of complaints in respect of Balfour Beatty Mott
MacDonald cases in 2014. Whilst the complaints were apparently recorded /
investigated, we received no outcome in respect of any.
The claims were each settled and our files closed.
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EM HIGHWAYS (EMH)
We have raised a number of complaints with EMH. There are a number of issues
associated with EMH and principally these relate to the charges being raised and
presented to drivers and / or their insurers.
EMH Charges History
Another adjuster recently commented that it was only a few years ago that EMH were
charging a few hundred pounds for their initial attendance at the scene of an incident.
Originally, in 2014, we saw charges of about £1,500 for the initial attendance. An AIW
‘emergency response’ was charged at £1523.78 (Our Ref: S02A335 EMH Ref: EMGC/15547,
date of loss 25/08/2014).
EMH use ‘Asset Inspection Watchmen’ (AIW) to attend the scene as soon as possible after
an incident is reported to them. The AIW’s total 38 staff and 19 vehicles.
EMH’s approach to establishing the charge for an attendance to a driver / insurer is to
take the total annual cost of the AIW’s and their vehicles and divide this by the number of
incidents they attend each year. The figures can be found at APPENDIX II.
We believe this is a flawed approach. Indeed, so obvious is it that this is an incorrect
methodology to be applied that we fail to understand how EMH do not comprehend this.
We also question whether the calculation figures are skewed in favour of EMH:
• Is the annual salary of an AIW actually £2,750,935.90 / 38 per annum i.e. approx.
£72,000?
• Does a vehicle actually cost approx. £23,000 / annum?
The average number of incidents per annum appears low being cited at 1,153.
We suspect this is why EMH are reluctant to engage with CMA and have repeatedly failed
to provide information; why they appear determined to avoid disclosure and engage in
unprofessional tactics.
In early 2014, we saw charges of about £2,700 for the initial attendance.
In 02/2015 EMH advised that due to the attention to their costs being submitted by loss
adjusters etc., they realised they were undercharging.
However, as of 01/08/2015, EMH have reduced their charges, by at least £1,000 per
attendance.
AIW & 1,153 incidents
We have seen an increase in the figures at APPENDIX II suggesting EMH have made pay
increases (or similar) to staff and vehicles are more expensive. However, we have seen no
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change to the figure of 1,153 claims / annum being used as the basis to reach the
average charge per claim.
EMH have to date failed to advise the period to which the 1,153 incidents relate.
However, a simple calculation reveals that the above equates to:
• 22.17 incidents / week
• 1.67 incidents / AIW 2-man team (1 vehicle) / week
The above is ‘simple’; it gives no consideration to sickness, holiday, rest days.
However, the total cost of AIW’s is being met by apportioning the annual cost amongst
the incidents.
• When they are not attending to incidents, which appear few and far between,
what are they doing and
• Why are drivers / insurers paying for this?
On 03/08/2015, EMH advised with regard to the 1,153 incidents:
To what does the figure of 1153 claims refer; what types of claim (damage, cause,
whether an at fault party was identified etc.)
733 traced claims with a culprit and
420 untraced claims = damaged caused by a third party but not been able to
identify,
all are priced the same way
We suspect the 420 claims, where there is no one to recover from, are being more than
compensated for by the traced parties.
There appears no incentive for EMH to have the correct number of AIW’s for the
contract(s); they will be charging others (drivers / insurers) for all staff / vehicles (labour /
plant).
We question when this process of AIW rates being divided was instigated. It is possible
EMH have lost or gained contracts such that an AIW would now attend more or less
incidents.
We also wish to have confirmed that the 1,153 incidents relate to all matters attended by
EMH whether for Transport for London (TFL), HE or any another party for whom they may
work.
Assuming that the 1,153 incidents include all HE and TFL matters, we are concerned that it
does not appear HE or TFL are in fact being charged in the same fashion for the
attendance. As the cost of an AIW is said to be split over all claims, if HE, as an example,
are being charged differently, at a lower rate, this appears to contradict the calculation
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basis being presented by EMH. In turn, it suggests HE claims are either being subsidised or
these claims are a bonus for EMH and insurers are being overcharged.
It will be understood that if the figure of 1,153 claims is too low, the result of a division will
be high.
Following an audit in 2010 (Area 3 MAC 18/07/2010), it was reported that:
On damage to Crown property the auditors provided documented evidence that
demonstrated that a total of 2849* green claims incidents had been reported 1709
had successful identification of culprits of which 1630 had been invoiced with a
total value of (redacted)and to date 1003 had been settled with (redacted)
recovered.
*2849 – the number is difficult to discern due to the poor quality of the document we have
received but the number is clearly over 2,000.
When did this number drop dramatically such that the division is now by 1,153 and not a
figure greater than 2,000?
If the actual figure is in the region of 2,306, then the AIW charge should be half that which
is being presented.
EMH Current Charging Methodology
EMH have been referred to by HE as:
• ‘Problematic’. This resulted in a £46,000 claim being written off by HE. Source CMA
file P10B700.
• Lacking a clear methodology for charging in some respects. This caused HE to raise
a concern that some claims may not, as a result, be recoverable from insurers
(source – HE audit of Asset Support Contractors Area 3 Visit 5 2014-15).
The Area 3 Visit 2014-15 advised concentrating on the following areas;
Green claims which evaluated whether the Service Provider has appropriate
processes in place to ensure that the public and the Agency, where costs are
borne directly, are being charged appropriately.
It is of note that the audit appear to be concerned with whether the ‘public’ were being
charged appropriately as recently we are being advised that claims retained by the
contractor, those sub-threshold, are of no interest to HE, that HE has no involvement in
them and does not become involved with them. If this is the case, it does not appear the
audit extended to the costs being presented to the public.
It appears contractor(s) are self-regulating and in turn, that this system is failing, it has been
abused. It appears this should come as no surprise as problems were identified with the
claims audited, the suitors reporting:
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Our review of the costs contained within claims confirmed that staff costs
(excluding operatives) are not based upon a clear / approved methodology or on
specific individuals timesheets and hence could potentially result in incorrect claims
being submitted.
A further comment in the audit reads:
By not having an approved methodology for the allocation of staff costs, insurance
companies could potentially reject claims submitted by the Highways Agency.
Additionally, there is a remark with regard to timesheets that ‘other individuals could nto
be traced’ and:
The costs are calculated by the Damage to Crown property (DCP) team and are
based on their 4 years’ experience in dealing with previous claims of a similar
nature.
This appears to be a best-guess approach to attributing costs or possibly no more than
holding a finger up to the wind.
The charging rates as of 01/08/2014 have yet to be explained, broken down.
We are seeking an itemisation of the charges.
Once again, for reasons that appear obvious to us, we believe the charges are excessive
and incapable of being supported.
To date the breakdown has not been provided.
We have asked questions of EMH in a number of letters relating to different claims. An
example of the questions being posed can be found at APPENDIX III. The letter at
Appendix III relates to a specific matter, one in which EMH, acting for Transport for London
(TFL) have charged £4,700 for 76 minutes work; 30 minutes to attend the scene, 16 minutes
to wash surface paint away and 30 minutes to return to base (CMA reference: S08B642 –
EMH Ref: EMGC16749).
Additionally, we have asked EMH to justify their charging methodology, to explain how the
approach is deemed to be anything other than intended to inappropriately result in a
gain for them. The relevant extract from a recent email to EMH can be found at APPENDIX
IIII.
Information having been withheld, we have made a FoIA request of the contractor. A
copy of the request can be found at Appendix V.
01/08/2015 rates
On 04/08/2015, EMH emailed:
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Regarding AIW costs, we have listened to yourselves and insurers and have re
addressed these as you will see in all claims from August this year the costs for AIW
have changed to reflect your concerns.
We do not believe it is for CMA to be ‘policing’ HE contractors in this fashion.
On 07/2015, EMH emailed their new schedule of charges:
EMH advised:
With regards the AIW charges, we have reviewed our process in relation to these as
previously mentioned to create a more incident specific charge based on the day
and time of the incident. As you will appreciate, a claim that happens in the earlier
hours of a Saturday and Sunday morning, costs EM significantly more. I have
included an example of the charges below, based on a 4 hour charge.
The above charges and statement appear to be naïve, ill-conceived, unreasoned and
unsupportable.
It will however be noted that the charges have decreased by at least £1,000 i.e. 40%.
It appears our concerns about pre 01/08/2015 charges were warranted, appropriate and
that insurers / drivers are owed a substantial refund.
EMH AIW Vehicles
EMH advise that the 19 AIW vehicles are based on a Ford Ranger.
However, we encounter numerous vehicles being used that appear to be Mercedes vans
and have even encountered what appeared to be a private Audi motor car.
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EMH Complaints
We have raised complaints with EMH, principally because they failt o provide information.
For example, sent: 21 May 2014 17:40
Your Ref: EMGC\012413 Our Ref: R05A673/PBS
Having failed to illicit a response from yourselves, it appears I am to be left with little
alternative but to make a formal complaint about the situation.
Please could you:
1. Pass our request to the appropriate handler
2. Provide a copy of your complaint procedure
3. Advise the HA contract for the contract
Should I not receive this information by close of business 28/05/2014 I shall. Without
further reference to yourselves, place the matters with the HA.
We have asked for a complaints process on a number of occasion; Sent: 16 March 2015
15:01
Dear Sirs
Please provide a copy of your complaints procedure.
Yours faithfully,
Sent: 17 March 2015 09:32
My preceding emails on the subjects have been disregarded.
I have sought a copy of your complaints process, you have not supplied this. When
can I expect to receive it?
Sent: 20 March 2015 14:11
I again as to be provided a copy of your complaints procedure.
Sent: 26 March 2015 19:23
With regard to my request for a copy of your complaints procedure, I believe have
located your email of 11/04/2014, to which you referred me last Friday. The relevant
extract reads:
All complaints will need to be made in writing to the following
Neil Pendlebury Green Regional Business Manager (HA Mac Area 1 & ASC Area 3
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However:
A. This is not a complaints ‘procedure’ . I am seeking the formal directive
setting out process, response times, escalations internally and if appropriate, to the
HA etc.
B. It is unreasonable to expect me to present a complaint to a party so close to
events, indeed who, in this instance, is a person to whom my complaint extends.
When responding, I again ask to be provided the complaints procedure, if this is
not forthcoming I shall apply to the HA for this, if necessary by engaging the FoIA to
obtain comprehensive information.
Sent: 01 April 2015 16:13
Whilst I sincerely hope we can resolve the issues, I again ask to be provided the
complaints process. If not forthcoming by close of business Friday next week (albeit
I am away) I shall escalate the request.
We received no response. Ultimately we bcc’d the EMH Board and whilst this resulted in a
response, it caused EMH staff to react, it did not result in information being provided. I
therefore wrote to EMH APPENDIX VI
We wrote to the EMH Board, 03/07/2015:
Dear Sirs,
Despite repeated requests for information, data is being kept from us that is
reasonably required to address claims. The suspicion is that EM Highways / Kier are
over-charging and in turn, that EM Highways, aware their approach is flawed, are
ignoring or avoiding the issues we raise.
My recent email to Daniel Hay (25/06/2015) appears in the attached ‘Written
Response pdf’ and clearly identifies my intended course of action in the absence
of a modest update;
Should I not be provided a date by which I will be in possession of a response
to my previous writing, by close of business tomorrow, I will escalate the
matters to EM Highways board. It would assist me to be provided the
relevant contact at Kier to save me having to adopt my trial and error
process. I can assure you it disappoints me that I have to adopt such an
approach.
I have remained patient, reasonable but without response.
Attached are the following:
1. ‘Written Response’ which deals with my attempts to obtain a written
response form EM Highways for some months. I have included an email at
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the conclusion to assist with continuity, dated / timed 12 June 2015 15:30 that
relates to your reference EMGC/019174 Our Ref: S08B618
2. ‘NPG Exchange’ a series of emails with Daniel Hay relating to those in
‘written response’ above and culminating in mine to Neil Pendlebury-Green
which has not received a response.
3. ‘S03A624’ unanswered questions in relation to your ref EMGC/016993, our ref
S03A624.
4. ‘S05A915’ unanswered questions in relation to your ref EMGC/17028, our Ref:
S05A915.
5. ‘S06B116’ information sought and awaited for months your ref EMGC/016015,
our ref S06B116.
6. ‘R10B724’ this matter remains without answers for many months, your Ref:
EMGC/14611 Our Ref: R10B724. Despite being with your solicitors, aside of
the aggressive stance taken toward an unfortunate motorist, no one
appears able to understand the issue of negligence and in turn liability. This
is a matter in respect of which despite, in late 2014, EM Highways advising of
an intention to meet, your solicitors (claiming to have no knowledge of our
involvement) approached our client directly. We understand EM Highways
had also approached a client o four directly and advised that if the meeting
which was anticipated to occur 02/2015 did not conclude favourably,
proceedings would be issued on all matters.
Please:
a) Advise when we can expect to receive a comprehensive written response
to the questions and issues we have raised
b) Provide your complaints procedure.
With regard to ‘b’ above, I refer you to my email of 26/03/2015 (below).
Yours faithfully
Having not received a response we wrote 05 August 2015 07:42
I also note the absence of any reference to your complaints policy despite multiple
requests. Please provide this by return or confirm that none exists.
On 07/08/2015, I received a brief MS Word document attachment which requested the
following information:
• Customer Details:
• Name:
• Address:
• Phone:
• Email: Date and Time of Submission:
• Reply to Customer by:
• Issue:
• Effect:
• Consequence:
With the accompanying text:
Page | 21
please find attached our customer complaints form. The process for this, is to submit
these forms to Mark Good (Relationship & Stakeholder Liaison Manager) and Phil
Samms (Performance & Quality Manager). They will review the complaint and
escalate the issue depend on the nature. So that you are aware the escalation
process is as Follows:
1. Neil Pendlebury-Green (Regional Business Manager)
2. Rees Evans (Contract Director)
3. Dave Merrick (Service Director)
4. Joe Incutti (Finance Director)
Please follow due process on this in order for your issues to be dealt with in the
correct manner. It is also paramount that the content of the issues is of high quality.
Ensuring each issue raised has substance, the information contained is relevant to
the issue and the consequence of the issue raised can then be addressed.
It did not appear the process was applicable to our situation nor that the complaints we
had raised to date had been progressed i.e. the complaints process was ineffective,
assuming it existed to address our concerns.
The complaints have yet to be addressed.
EMH Provision of Data
On 07/12/2012, EMH (EnterpriseMouchel) wrote to HE (source: EMH ref 206/NC/A5116, HE
ref: HA137/3/15 CMM 46/12), following a BBC report highlighting concerns about charges
for repairs to the highway:
Invoices are prepared by the claims team using the quantities detailed on the
repair records and our standard schedule of rates.
Invoices are sent direct to the insurer and copies of records providing details of the
labour, plant and material resources used are attached.
A sense check is also carried out to verify that the work done and quantities used
are consistent with the photographs taken of the damage.
The above does not appear to apply to AIW’s.
Additionally EMH wrote:
Should there be any dispute, this is escalated to a senior manager. Rarely has there
been any need for an appeal as such and this would generally be with the insurers
rather than individual; drivers.
Page | 22
The above appears to be the ‘complaints process’ but it is not one we have seen
engaged initially. EMH have withheld data, we have complained and our complaints are
obstructed and frustrated.
EMH Claims management
In 08/2015 we became aware that EMH staff, despite being aware we were instructed in
respect of claims, were approaching our clients directly.
We queried this behaviour and EMH explained to us that they were trying to reconcile
their claims; to understand what insurers possessed and what they (EMH) had outstanding.
On 31/07/2015, EMH wrote to us:
Thank you very much for your email concerning our contact with your clients.
The reason we are contacting all insurers that we have claims with not just your
clients, is for a reconciliation of all our claims. Ensuring that insurance companies
have the same claims as us on files and where they stand with them whether it be
with loss adjustors or been dealt with internally.
The purpose of this is to ensure all our records are up to date.
I anticipate us all working together in a positive way to close any ongoing issues we
have, I look forward to working with you more closely in future to get amicable
results for all parties involved.
However, emails to insurers revealed that EMH were actually seeking to strike deals with
our clients, to deal with our client’s directly
On the same day (31/07/2015) EMH had written to a client of ours:
Subject: Outstanding Claims
We seem to have (redacted) long outstanding claims with yourselves.
Both these claims were passed on to your loss adjustors I believe. But we do not
seem to be getting responses from our communications with them.
I would like to propose that we deal with these with yourselves direct and I am sure
that we can come to an amicable settlement figure for both parties.
Please respond with your thoughts on this matter?
We consider the response to us from EMH to be disingenuous, very poor behaviour.
Either EMH are, or are not, getting a response from loss adjusters (CMA). That EMH appear
unsure whilst conveying a superficial, lazy approach to the matters, is of concern. The
facts speak for themselves; we had been communicating with EMH, we were awaiting a
response.
On 20/08/2015, EMH supplied us with a list of outstanding claims; 31 matters in respect of
which they claimed they were awaiting a response from us. I audited and reported upon
Page | 23
each. In respect of 30 of these, we advised EMH that it was we who awaited a reply from
them; an assertion that has never been refuted.
With regard to the additional matter, we had not been instructed when EMH wrote to us.
We have concluded that EMH will do all they can to void answering questions and have
reason to believe this is because their charges cannot be justified.
Page | 24
CONNECT PLUS M25 (CPM25)
This has not been raised as a complaint with HE.
The current concerns are:
1. CPM25 have refused to provide a breakdown of their charges
2. CPM25 appear to be of the impression that they can consider and act upon a
Freedom of Information request:
a. Without involving HE
b. And dismiss the request because they are not a contractor
We have raised a complaint about the CPM25 claims manager which is currently under
investigation by CPM25
FoIA
CPM25 having dismissed our FoIA request I have presented the matter to HE who have
written:
Can you advise if the claim referred to is a below threshold claim?
If so, I refer to the response to your FOI request (729,272) in that Highways England
has no basis to intervene in the case.
Similarly, the records relating to below threshold claims are neither held by
Highways England or held by our contractors on our behalf therefore they are not
covered by Freedom of Information. Connect Plus, as a private company, are also
not subject to the Act in themselves.
I replied:
I was unaware there was a threshold on the M25. The M25 DBFO Contract appears
to be effectively leasing the M25 to ConnectPlusM25 for 30 years and whilst I recall
mention of a Risk Sharing Cap Amount, the contract does not appear to operate
as with other areas.
It is rare that I write in respect of a particular claim. I try to avoid this being
concerned that the data is too specific. In this instance the data is not individual to
a claim but policy, processes and general.
My position is that transparency is expected, that the default position should be one of
disclosure as opposed to seeking a means by which to exempt oneself, to withhold data.
My response is at APPENDIX VII.
I am concerned the contractor has not acted in accordance with section 34.2.3.1, see
APPENDIX VIII.
Page | 25
Logic and common sense suggest that a Public Authority which falls within FoIA legislation,
is specified and has obligations under the Act, should be no less subject to the
requirements because they are now, by choice (or necessity) one place removed from
the information.
It appears reasonable to believe that FoIA legislation should sit with a Public Authority and
all who fall under their umbrella; any organisation which contracts to provide a Public
Authority service. If legislation omits to address this, contracts (self-regulation) needs to
cater for the situation. It appears some contracts do.
FoIA exists for good reason, it has a purpose. If intentionally, inadvertently or out of
necessity a Public Authority places tasks with a non-Public Agency, it follows (at present)
that the ability to obtain information is hampered, the effectiveness of the Act watered
down.
Additionally, HE may well be losing out on the ability to harness public power which, when
it comes to operations involving contractors, appears all the more important; the public
will expect answers to questions HE may not have considered and the process acts as an
alert and / or audit facility.
My FoIA request is progressing.
However, we have concerns about the charges being presented by two contactors and
therefore wrote to the HE Chief Executive requesting an audit as per APPENDIX IX.
Page | 26
HIGHWAYS ENGLAND
HE ref: Z1516318/AXT/A5 CMA ref: S08B687 - request for review
This matter does not relate to a contractor, but HE. I have not raised the issue as a
complaint but asked that a review be undertaken.
This follows on from a FoIA request for HE’s Green Clams Handling Manual. On 14/10/2015,
I wrote to HE in respect of my FoIA app[ear (review):
In hindsight it is possibly beneficial that I have written under this reference your claim
Z1516318/AXT/A5. The claim was for over £10,000 and would have progressed to Court
had we not, painstakingly, approached HE and in a teeth-pulling process slowly got to
what was required of the innocent motorist who was being persecuted unnecessarily.
• I ask that the file is reviewed in light of your decision with regard to my FoIA request
We were subjected to an unreasonably aggressive and intransigent approach. The driver,
already suffering from the distress, inconvenience and financial hardship of a fire on the
motorway was then accused of negligence.
Trying to illicit what HE required to satisfy themselves that the driver was ‘innocent’ nearly
proved impossible. Had it not been for our perseverance, for our headstrong behaviour
and reluctance to be bullied, the driver would have faced a Court before likely having he
case dismissed.
Whilst we asked what HE required, effectively pleased to understand, the reply was:
As I said in my email of 4 September I am not going to try to resolve this matter in
correspondence. We are too far apart for that.
If you will not nominate solicitors to accept service I will ask the insurers to do so;
and if they do not I will have to serve Mr Jones personally with the proceedings and
he will no doubt call on the insurers to defend the claim – and the insurers will then
necessarily pass the matter to their solicitors. I would rather not trouble Mr Jones at
this stage but if I must, I must.
I again call upon you to nominate solicitors without delay. If I have not previously
heard from you I will approach the insurers directly on Monday 28 September.
The Green Claim procedure manual which you quote is not now in use and has not
been for a considerable time.
We did not and do not believe further action on our part was necessary or the HE stance
reasonable. The insured had negated the allegation of negligence to an extent that
previous matters had been written off by HE.
We carried on regardless and obtained yet further information in support of the insured
following which, HE abandoned the claim. This behaviour should be considered in relation
to the intransigence conveyed above.
Page | 27
I subsequently wrote to the claims handler, a lawyer, afterward suggesting a process for
future matters to avoid such situations but received a dismissive reply:
I think this is a matter to be discussed, if at all, with the insurance industry through its
collective bodies rather than with any one claims adjuster, however experienced!
Clearly your lawyer felt it reasonable for the issue to be raised but apparently not with us!
Page | 28
HE ref: Z1505995/AAF/A5 CMA ref: R03A344 – witness statement
This matter does not relate to a contractor, but HE.
I have not raised the issue as a complaint but draw your attention to the behaviour we are
subjected to, what appears to be an intention to bully by Government Legal Department
(GLD).
Such has been the intransigence of GLD that it appears we are to be left with no
alternative but to submit a formal complaint to a constabulary about:
• the behaviour of an officer at the scene of a collision
• the constabulary showing bias to GLD
• the officer demonstrating prejudice toward us
• false statement(s) by the officer – in a statement we understand was compiled by
GLD for him
My last email on the subject to GLD is as follows:
From: Philip Swift
Sent: 23 October 2015 15:21
To: GLD
Subject: RE: RE: DfT v Creighton Your Ref: R03A344/PBS Our Ref: Z1505995/AAF/A5
To follow up from our conversation and to use an email with the first documented
reference ‘interfering with a witness’ which appears to be an allegation (below). I
take offence at being told I am meddling with a witness; I am seeking to obtain
facts to enable an informed decision to be made and I had hoped you would
express some thanks that the discrepancy has come to light now, further that I
have disclosed this promptly.
I have today spoken with professional standards department (PSD) at the
constabulary. Such are my concerns about the statement provided that I have
pressed for further information. I have not approached the officer directly, I have
followed the route advised by the police.
PSD acknowledge that the statement is ‘incorrect’ – in addition to the concern I
had about the date of the exhibit.
I am concerned about the manner in which the statement was obtained but more
so that the constabulary appears to have bent over backward to assist yourselves
but not us. The officer’s credibility appears highly questionable (over and above
not even recording the cause) and I have advised PSD that I will liaise with you
before returning to them.
I understand that a HATO (HETO now?)attended the scene and have been
provided reference HA/92004001200365479.
I cannot see that we have any knowledge of this, we lack documentation and two
values for the claim!
Page | 29
I expressed surprise that the civilian member of staff who can give direct evidence
of what was said but more importantly the meaning of the words, has apparently
not been sought out by GLD. I have received confirmation from PSD that this
person is known and remains in their employ. The police have refused to provide
me their details – once again my client’s position is prejudiced.
We both have grounds to be very frustrated with the current positon, with the
failings of the police .
Have a good weekend and we’ll speak Monday
Philip
Page | 30
Freedom of Information
Our interest is generally with regard to those claims that a contractor retains and has
responsibility for. These claims are akin to an insurance policy ‘excess’ (or ‘deductible’);
they are the claims to a specified value that the contractor will retain and ‘take on the
chin’ i.e. meet the cost of.
In some instances an at-fault party will be identified and the cost can be sought form
them, a recovery is possible. In other instances the damage is caused by an unidentified
party. Someone uninsured and a ‘man of straw’ or on the odd occasion an ‘Act of God’
occurs, such as a lightning strike.
It is the retained claims that fall below the agreed threshold that generally give rise to
concerns about the behaviour of contactors.
There appears to be confusion about the extent to which FoIA applies to contractors.
Whilst an audit of EMH indicates HE are concerned with the charges made to the public,
recent responses form HE staff when questioning claims costs and making FoIA
approaches revealed a very different situation.
HE staff have advised, with regard to the contractors and sub-threshold, retained claims:
They can do what they like with their own claims, that’s absolutely nothing to do
with us”
This does not suggest contractors need to demonstrate the high standards of ethics
expected in the conduct of public business and be more transparent about their
performance and cost.
The Freedom of Information Act applies to ‘Public Authorities’ such as Highways England
however, currently (2015) the FoIA does not apply to a Public Authority’s contractor.
This having been said, in June 2014 when responding to our Freedom of Information Act
request, the Highways Agency (now Highways England) advised 25/06/2015:
The answer is that contractors are not singularly subject to FOI.
Contractors are obliged to provide their Employer i.e. the Agency with information
upon request under the terms and conditions of our contract with them.
It is the contact that we believe makes (or should make) the contractor liable to request
under FoIA.
However, on 19/10/2015 HE advised:
By way of a response, Highways England has explained on several occasions that
our contractors have sole responsibility for Green Claims with a value of less than
£10,000 (or less than £25,000 for Areas 4 and 12). As such, Highways England has no
visibility or oversight of these claims, nor do our contractors have a responsibility to
Page | 31
report on ongoing claims. Highways England, therefore, has no basis to become
involved in claims entered into between CMA and contractors. Nor can Highways
England compel a contractor to respond to correspondence outside of our
jurisdiction.
On 22/10/2015, HE advised:
Our contractors are indeed obliged to assist Highways England in answering
correspondence when relating to matters undertaken on our behalf. As I have
stated to you on more than one occasion, sub threshold claims are not undertaken
on our behalf therefore FOI legislation cannot be used to obtain information.
On 23/10/2015, I responded to the above to express my concerns:
With regard to FoIA and contractors, I refer you to the contract which appears to
take precedence over any advice provided by another. It appears there is an
obligation placed upon a contractor, one the HE does not appear keen to
reinforce.
I understand CleanHighways.co.uk argue that it is reasonable to conclude that the
HA motorway maintenance contractors should consider themselves to be public
authorities for the purposes of the EIR. Others clearly believe that outsourcing is
diluting the effectiveness of FoIA and my belief is that it is your contracts which
undermine that argument. However, by support of HE’s contracts and processes is
being called into question by the responses I am encountering.
If FoIA were not extended to contractors by means of the contract it appears,
especially with regard to the M25, that reference to FoIA is superfluous possibly
misleading. I would suggest the appropriate ICO document is that which I have
attached. It is this approach which appears to be endorsed by the Scottish ICO
and the Commons Committee.
I have also commented upon the ‘stepping into the shoes of’ situation which exists.
It is remarkable if that at present HE appear to simply assign claims over which they
have no direct knowledge or proper governance.
I also question whether this means that contractors have no legal basis to recover
claims for which they have sole responsibility. They are not recovering on behalf of
any loss suffered by the HE and they have not suffered any loss themselves … their
repair obligations are contractual.
Aside of transparency that the attached document promotes, a voluntary default
positon being encouraged, the question of whether a contractor is holding
information on behalf of a Public Authority is raised. It appears much of the
information I have sought is ‘held on behalf’ and falls within the scope of FoIA. That
contractors need to seek authority from the Secretary of State to pursue a claim via
a Court is evidence of this.
Page | 32
I had previously written (22/10/2015):
I note HE apparently restrict the assistance to be provided by a contractor to those
claims undertaken on HE’s behalf. However, this is actually every
claim! Contractors are quick to explain that they step into the shoes of HE when
pursuing recovery, they act in your name, they undertake work that would
otherwise fall to HE.
With regard to the M25, there is no threshold. However, the contract dictates the
course an FoIA request should take.
FoIA legislation can be used to seek information but I accept that the FoIA does not
extend to Limited Companies, to other than Public Authorities, save where an
Order has been made, such as in the case of the Railway network. There is an
argument that a request for information should not require FoIA, that this should be
volunteered particularly when connected with HE activity. I believe the default
stance of HE and their contractors should be one of ‘seek to disclose’ as opposed
to engage an exemption, or find reason to withhold.
Section 4 of the FoIA appears to offer a solution but section 5 advises:
The Secretary of State may by order designate as a public authority for the
purposes of this Act any person who is neither listed in Schedule 1 nor capable of
being added to that Schedule by an order under section 4(1), but who—
(a)appears to the Secretary of State to exercise functions of a public nature, or
(b)is providing under a contract made with a public authority any service whose
provision is a function of that authority.
Possibly some would describe the current situation as ironic, if not confusing …
contractors act in the name of the Secretary of State. In order to instigate
proceedings against an at-fault party, the contractor needs to obtain the consent
of the Secretary of State.
Connect Plus’ contract (at section 13) refers to FoIA requests being presented to
the Secretary of State.
It appears timely for your contractors to be subject to FoIA. The ICO, Scottish ICO
and a House of Commons Committee of Public Accounts have expressed
concerns about contracting out, concerns that are reinforced by the difficulties I
am encountering.
Sub-threshold claims are undertaken on HE’s behalf and in HE’s name. The manner
in which contractors step into HE’s shoes is contractual. It appears it is the contracts
which dictate the assistance that should be provided to HE and in turn an
applicant utilising FoIA.
Page | 33
I am concerned that HE appear to be distancing themselves from their contractors, that a
section of the role a contractor now undertakes is blind to HE in that:
a) HE do not audit the contractor but rely upon self-regulation
b) FoIA is not deemed to apply to the contractor
I fail to understand how ‘a’ above, a contractual agreement, is used to differentiate those
issues which should or should not fall under FoIA requests.
I remain convinced that it is all the more important those claims where HE are permitting
self-regulation are open to public scrutiny. It also appears that there have been
conscerns raised that the use of subcontractor sis diluting the effectiveness of FoIA,
legislation put in place to make our Agencies more transparent, accountable.
https://ico.org.uk/media/for-organisations/documents/1043531/transparency-in-
outsourcing-roadmap.pdf
The current arrangement appears to be a regression, encourages unaccountability and
removes a deterrent.
I believe the concerns I have raised in this document are sufficient to indicate self-
regulation, the lack of control and independent supervision, has failed.
I am also concerned that HE does not appear to be embracing FoIA and has either failed
to ensure contracts extend FoIA to their contractors or are permitting contractors to be
exempted or avoid answering questions.
Philip Swift
Claims Management & Adjusting Ltd
Page | 34
Appendix I HE online complaints process
https://www.gov.uk/government/organisations/highways-england/about/complaints-
procedure
Complaints procedure
How to make a complaint about Highways England
We want to hear about your experiences so we can learn from them and improve our
services.
What we can help with
We are responsible for motorways and major (trunk) roads in England.
For complaints about:
• local roads - contact the relevant local authority
• Scottish roads - contact Transport Scotland
• Welsh roads - contact the Welsh Assembly
Call our customer contact centre on 0300 123 5000 (local rate call) if you need help in
finding who to contact.
How to complain
Set out your complaint clearly including dates and any other details. Send it to us at
You can also contact us by phone on our 24-hour helpline on 0300 123 5000 (local rate
call).
If you prefer to send a letter, the address is:
Highways England
National Traffic Operations Centre
3 Ridgeway
Quinton Business Park
Birmingham
B32 1AF
What happens next
We aim to respond to all communications (letters, emails, faxes, telephone calls) within 15
working days of receiving them. This includes a complaint that has been formally
recorded by one of our traffic officers. If we are going to take longer, we will let you know
why and when we aim to reply.
If we are at fault we will:
Page | 35
• apologise and send a full explanation of what went wrong
• tell you what we can do to put things right
• review our services to stop this happening again
Chief Executive
If you’re not satisfied with the response you receive then you can complain to our chief
executive:
The Chief Executive
Highways England
National Traffic Operations Centre
3 Ridgeway
Quinton Business Park
Birmingham
B32 1AF
Independent assessment
If you are not happy with the response after writing to our Chief Executive, you can ask us
to refer your complaint to the Department for Transport’s Independent Complaints
Assessor (ICA).
Find out more information about what the ICAs cover and how to complain to them.”
Parliamentary Ombudsman
If you think we have not done everything possible to resolve your complaint, you can also
ask a Member of Parliament to contact us on your behalf, or ask them to refer your
complaint to the Parliamentary and Health Service Ombudsman (PHSO).
The PHSO will expect you to have tried to resolve your complaint at the earlier stages of
our complaints procedure before they look into it.
FOI and EOI complaints
We have a separate procedure for complaints about:
• freedom of information releases
• environmental information regulations
Read our FOI EIR leaflet (PDF, 164KB, 1 page) to find out how to complain.
Page | 36
APPENDIX II EMH AIW incident attendance charge calculation
Loss Date 14/12/2014
CMA ref. S05A915
Loss Date 23/01/2015
CMA ref. S08B658
Page | 37
APPENDIX III Questions to EMH re charges
Date: 25 Sep 2015
CMA reference: S08B642 – EM Highways Ref: EMGC16749
Dear (redacted)
Loss date: 24/11/2014
Re: W921SJM - Opel Opel
Thank you for your email of 22/09/2015 in response to mine of 15/06/2015
1. AIW
Are you saying ‘Asset Inspection Watchman’ and ‘Asset Incident Watchman’ are:
a. two slightly different descriptions for exactly the same role / person or
b. are these different titles for different people?
We find the descriptions interchanged and this causes confusion.
2. Periods
You have supplied a table of charges. This details a period, a ‘cost per year’
REF. DESCRIPTION QUANTITY UNIT RATE
Charge per
claim
Attendance Call Out
Charge Cost per Year
(Column J
/1153)
Please advise:
a. The period referred to i.e. the year in which 1153 claims occurred (from / to
dates)
3. The incidents
For the period at 2a (above):
Total number of incidents for the period
The number of incidents where an AIW attended
The number of incidents where a culprit was identified
The number of incidents invoiced
We wrote to you in June. We have waited in excess of 3 months for your reply which is
brief in the extreme.
a. Why have we been forced to wait over 3 months?
Page | 38
Since 15/06/2015, I am aware Mr Swift (CMA MD) has been in correspondence with Neil
Pendlebury-Green of EMH and obtained the above information.
4. Salary
a. Please advise an AIW’s salary
This is not personal data and if you believe to the contrary,
b. please explain and advise which section of the Data Protection Act 1998
supports your position
We have not sought payslips and therefore your reference to this is not understood.
c. Please explain
When advising an AIW’s salary, please also provide any increase they are paid for
working:
d. Out of hours Monday to Thursday 1701hrs to 0759hrs
e. Daytime Saturday to Sunday 0800hrs to 1659hrs
f. Out of hours Friday to Monday 1701hrs to 0759hrs
g. Bank Holidays
5. Operatives attendance (number)
Thank you for the information provided.
Please explain your reference to Health & Safety:
a. in what respect is this applicable and prevents one operative ever attending
the scene of a collision, of damage to roadside property.
6. AIW duties
We note an AIW ‘also carries out other duties regarding incidents on the road’. Please:
a. Advise the other duties undertaken, what functions they perform, the work
they undertake when not attending damage to roadside property matters.
b. Approximately, how much of their time is associated with attending the
incidents (1153) per week?
7. The number and make / model of vehicles provided to the operatives*
As evidenced by other matters, this information is important when considering quantum
and agreeing settlement. We have previously been provided misguided, incorrect
information about the number of vehicles attending and their description.
You have based your charge for an AIW vehicle on its cost. Therefore, we wish to ensure
that an AIW vehicle, a custom piece of plant, was in attendance. As evidenced by at
least one previous claim, whilst we were informed to the contrary, an AIW was NOT in
attendance.
Page | 39
Furthermore, with regard to these 19 vehicles, you have based their charge on the sum of
£440,183.25 or £23,167.54 per vehicle.
a. Please advise the breakdown of the figure; how it is made up and whether
VAT is included.
We believe that the charge for a non-AIW vehicle will differ to that of an AIW vehicle. A
vehicle owned by EM Highways will incur a different charge than that supplied by
another.
A vehicle supplied, other than that owned by EM Highways, will be the subject of
correspondence, such as a hire agreement.
This is relevant to us agreeing settlement of this head of claim. That you do not appear to
understand the relevance only heightens our concerns about EMH’s presentation of
information and understanding of claims.
b. Do EMH own the 19 vehicles or lease, hire (or similar) them?
c. Please provide the VRMs for your current AIW vehicles, all 19 (or the present
number if the stock has altered).
This should be considered a request in accordance with the Freedom of Information Act
2000 which, if you are not prepared to handle directly, should be passed to TFL to address
8. Time on scene
I note the crew were on scene for 16 minutes. Anticipating that an AIW attracts a hourly
rate of about £20, it does not appear their cost should exceed an hour, even allowing for
travel to and from the location.
You state the operatives spent ‘30 minutes getting to site and 30 minutes getting back to
the depot’
a. from where did they travel to attend the site, please advise the location of
this.
b. What immediately previous event had the operatives attended?
c. To which depot did the operatives return, please advise the address of this
d. Please supply the operatives time sheets in support of your claim.
However, we question whether you are entitled to claim for these costs at all. the AIW is
clearly employed to undertake a number of tasks, is employed on a daily basis, is
employed whether or not there are collisions. My understanding is that of the 1153 claims
/ annum, over 400 of these involve an untraced driver / insurer i.e. an AIW is attending to
matters, is patrolling or awaiting notification and would be employed if there were no
driver / insurer identified incidents.
e. On what basis do you believe an AIW’s attendance at the scene satisfies the
‘significant disruption’ test?
9. LoHAC contract
Page | 40
I am aware that receiving any information from EMH is ‘sparse’. EMH have a long-standing
relationship with TFL and the LoHAC contract commenced in April 2013. I do not
understand why this issue has yet to be resolved.
In the absence of paperwork by close of business Friday 02/10/2015 we will approach TFL
directly. It appears that we need to make a further FoIA request of TFL to better
understand this relationship and the charges raised. Possibly our approach will also ensure
that future requests from you will be treated promptly and the improvement to which you
refer is addressed sooner rather than later.
I remind you we have waited over 3 months for your sparse response.
10. Diesel / Petrol
‘Diesel’ is not a generic term, ‘Fuel’ is a generic term.
We have not suggested it is you operatives job to determine whether the spill is petrol or
diesel. This should be obvious.
Of further concern is that you appear unable to understand that there was no fuel
spillage. This was a paint spill. No fuel spilled onto the road.
I refer you to my remarks under ‘images’ and that you are clearly confused despite our
previously having raised the issue.
11. Date of event / images
You state:
“I have re-attached the photos of the incident for your reference.”
You have indeed sent a copy of the very same images that we received in June 2015.
However, it appears you have given no consideration to our email of 15/06/2015 (below)
and that it is evident a ‘diesel’ spill is unconnected with this matter.
We have waited over 3 months to be provided a lackadaisical, ill-conceived reply and it
appears your brief response has been fired off without any consideration of the facts or
the time we have taken to hand-hold you through them.
I make the following comments in respect of your images:
• Image 1.
Page | 41
The above image relates to:
17/11/2014 not the date of our collision
10:40am not the time of this collision
A102 L/B end of slip not the location of this collision
RTC / diesel spill not the incident we are dealing with
11:56 image stamp not a time associated with this collision
It is difficult to be any clearer about the image you have sent, your reference to ‘diesel’
without making reference to a lack of competence.
a. Do you now accept that the image you have sent relates to another matter?
• Image 2
This is similarly date stamped (as above) and also clearly not associated with this matter.
• Image 3
This appears to be for the claim we are handling. The board displaying information is
unclear but we note paint at the scene.
The board displays a reference of T55463 whereas we note image one displays a
reference of T65363. Please explain these references as:
It appears incredible that the images are being presented as one and the same
incident
The lack of correspondence supplied does not enable us to link T55463 with the
invoice raised – hence we are seeking time sheets etc.
• Images 4 to 9 inclusive
These are of the insured vehicle., there is no fuel spill. There is a paint spill.
Reference T55463 appears on the board in the image.
12. The insured statement
Please explain how images the insured took (if any) would:
a. prove our client’s statement
b. add to the facts and images you already possess
A paint spill occurred (our client was struck from behind), an AIW has attended and it
appears the scene was washed with water within 16 minutes.
c. We wish to know how you were alerted to the spill.
Please also advise:
Page | 42
d. What you believe gave rise to paint spilling from inside the vehicle
13. Claims handling
This is the claim in respect of which:
In June 2015 our insurer client advised having received a call from EMH. EMH apparently
stated to our client that:
EMH are currently not willing to work with CMA due to and ongoing dispute.
EMH wanted insurers to deal with the damage in house.
I understand you were informed that insurers would not be instructing anyone else. EMH
apparently responded:
EMH would send the file straight to their solicitors.
I understand my MD, Mr Swift made contact with EMH following the above exchange and
was advised that this was not what had been said by EMH.
It appears EMH are accusing our insurer client of misrepresenting facts. Given recent
developments, you will appreciate that we are all the more inclined to place confidence
in the word of our insurer client and question why you believe they would misrepresent an
exchange.
I understand EMH have recently sought an update in respect of 31 matters we are
handling, in respect of each EMH appear to be of the impression CMA has not responded.
However, this is contradicted by EMH apparently seeking the present position on all files
from our clients and us and that, having reviewed each matter we corrected EMH; it is we
who have awaited data. EMH have not corrected our findings, not disagreed with them.
In relation to this claim, your spreadsheet advised:
14.05.2015 Advised by TC from insurance
company they have admitted
liability and passed to CMA
19.06.2015 Email from Alex to CMA asking for
update no reply as of yet
05.06.2015 Email from CMA asking for docs,
reply with docs sent by Alex.
a. Please provide us with a copy of your email dated 19/06/2015;
This email is not on our file, you have not referred us to it in your latest response nor have
you sent us a copy of the email following our review on in support of your having
previously replied to ours of 15/06/2015.
Settlement
We await information to enable an informed decision to be made.
Yours sincerely,
Page | 43
APPENDIX IIII Request of EMH to justify charging methodology
When responding, please
1. explain how you can honestly represent that the annual fee for an AIW
should be divided equally by 1153 incidents. The representation appears
intended to make a gain for EMH, to cause loss to a driver / insurer.
It appears that the manner in which the charges are represented is intended to
mislead and by repeatedly withholding more detailed reasoning, there is an
intention to distort the figures i.e. that EMH appear to know that the figures
represented are misleading.
2. explain on what basis you (or Highways England into whose shoes you step)
consider it appropriate to withhold the information we have sought.
We question why, if EMH are acting honestly, there exists a resolute DCP-wide
practice of failing to disclose information which would enable us to determine
whether the demands presented are appropriate or, as appears may be the case,
EMH are seeking to make an inappropriate gain for themselves or expose drivers /
insurers to a risk of loss.
3. explain how EMH, whose correspondence indicates that you are working on
behalf of Highways England, are not abusing their position.
We understand that EMH step into the shoes of Highways England and seek to
recover monies as though Highways England. As such, you occupy a positon of
trust which it is reasonable to assume you are expected to safeguard and not to
act against the financial interests of another, such as a driver or insurer.
It does not appear your charges are honestly presented. You occupy a privileged
positon of undertaking repairs and presenting own costs for repayment yet the
methodology employed appears intended to make excessive gain for EMH or
expose drivers / insurers to a risk of loss. This situation is compounded by conduct
that appears to be the intentional withholding of information.
The charges presented for AIW’s by EMH have, over the past 2 years, defied logic:
• Early 2014 approximately £1500 was charged
• Late 2014 approximately £2700 was charged
• Early 2015 Alex advised that due to the attention we and others were paying, it
had been realised EMH were undercharging
• 01/08/2015 Your charges have been reduced by at least 40%.
An explanation for the fluctuations is sought.
Page | 44
Lastly, with regard to this matter, I note the AIW vehicle involved was HX14XFP, a
Mercedes-benz Sprinter 313 Cdi. However, Neil Pendlebury Green advised Mr Swift that
the charges are based on a 4x4 Ford ranger type vehicles, which a Sprinter van is not.
With regard to HX14XFP, a Mercedes-benz Sprinter 313 Cd, please detail the charges
associated with this van which we understand to be the subject of HP.
I await your detailed response.
Page | 45
APPENDIX V FoIA request of EMH
Date: 13 Oct 2015
CMA reference: A03A001 / L512839 / FoIA 151013
EM Highways
Dear (redacted)
Freedom of Information Act application
I understand EM Highways (EMH) employ staff to attend initial reports of incidents,
damage to Crown Property, also referred to as ‘street furniture’. These staff, referred to by
EMH as Asset Inspection (or ‘Incident’) Watchmen operate in pairs and are assigned a
vehicle. I am advised:
• There are 38 AIWs (labour)
• There are 19 AIW vehicles (plant)
Until 31/07/2015, EMH calculated the charge per AIW attendance by establishing the total
cost of labour and plant then dividing this by the number of incidents attended of 1153. I
understand that the year to which the figure of 1153 refers involved 733 traced claims with
a culprit and 420 untraced claims i.e. damage caused by a third party who EMH have
been unable to identify.
Whilst this is a similar FoIA request that I have made 25/09/2015 in respect of a Transport for
London (TFL) contract, my reference S08B642, EMH Ref: EMGC16749, this request differs.
Additionally, EMH have not extended me the courtesy of acknowledging the 25/09/2015
request and I assume the application has been ignored – an issue I have passed to my
MD.
However, I understand your AIW’s are also used in connection with Highways England (HE)
incidents and it is in respect of your H.E. contract that I am seeking data with this request.
This request is specific to the HE contract(s).
I ask to be provided:
1. The date AIW’s were first appointed
2. The period to which the figure 1153 claims (incidents) relates
3. The annual number of incidents (claims) attended since 2009 i.e. assuming the
annual number of incidents varies year upon year, the figures for each year and
clarification that the period is a calendar year (or otherwise).
4. Of the 1153 claims, how many of these were presented to HE.
Please provide:
Page | 46
5. A copy of an AIW’s contract – generic.
With regard to payments you make to an AIW, please advise:
6. Their salary; the pay scales for an AIW.
I am not seeking pay slips or personal data.
7. Whether there is a multiplier (enhancement) to an AIW’s salary for the following
periods and if so, the increase associated.
d. Out of hours Monday to Thursday 1701 hrs to 0759 hrs
e. Daytime Saturday to Sunday 0800 hrs to 1659 hrs
f. Out of hours Friday to Monday 1701 hrs to 0759 hrs
g. Bank Holidays
With regard to AIW vehicles I understand they are custom built vehicles, made specifically
to the required specification to EMH’s operational requirements and are based on a 4x4
Ford ranger type vehicles, please advise:
8. The cost of such a vehicle.
9. The Vehicle Registration Marks (VRMs) of your 19 (or otherwise) fleet since the
commencement of the AIW approach to include and identifying the current fleet
With regard to AIW staff and vehicles, since their appointment / commencement, please
advise:
10. The variation (increase) in charges to drivers / insurers applied and the dates of
changes together with all information in support of the increases, justifying same.
11. The breakdown of the charges i.e. the makeup which, with regard to staff, we
understand to be over £2.5 million per annum and with regard to vehicles,
approximately £400,000 per annum and
12. Whether VAT is included in any aspect of the charges presented for AIW’s or their
vehicles.
I also ask to be provided:
13. All information relating to the review of AIW charges presented to drivers / insurers
that resulted in the fee schedule to be applied as of 01/08/2015 which represents a
reduction in charge of at least 40%.
Please advise your reference for this application and confirm you will respond promptly
and within 20 working days i.e. on or before 11/11/2015.
Yours sincerely,
Claims Management & Adjusting Ltd
Page | 47
APPENDIX VI email from CMA to EMH be BCC & information
20th March 2015
From:Philip Swift [mailto:[email protected]]
Sent:20 March 2015 15:04
To:Daniel Hay
Subject: today's conversation
Dear Dan,
I refer to our conversation of today.
As I clearly advised, in answer to your question ‘why do I feel it necessary to bcc people
on
my emails?’, the answer is obvious; EM have for some considerable time ignored my
emails. With regard to my recent email, I started at claim handler level, progressed to you
and Neil but to no avail. The moment I bcc, I receive a response. The practice
works. Admittedly, I should not have to research EM / Mouchel to cobble together emails
but clearly this behaviour on my part, a last resort before presenting matters to the HA,
achieved the desired effect. To be frank, I would also add that the initial bcc was as much
to protect myself; I anticipated a failure rate andwas trying to save face.
However, I cite the above as evidence of EM Highways’ actions; unprofessional.
You declined to address my question today; “why should I have to bcc in order to obtain
a
response?” You appeared to believe that I am here to answer your questions, yet you can
ignore mine. I do not appreciate what I perceived as your arrogant, oppressive stance.
That
you ask questions, effectively demanding answers, yet are not prepared to address my
associated questions is unacceptable.
With regard to a meeting, I have been keen, I have sought to progress this. However,
given
recent events and your behaviour today, I do not intend to attend a meeting without
being
prepared. I will not be ambushed. Additionally, given your conduct today, if this is the
manner in which EM behave generally, a meeting willbe pointless and potentially
detrimental to my health.
As for you being content to meet, really? This wasto occur in February … what became of
this and why did you not have the courtesy to keep me advised?
Indeed, please advise who at EM in December 2014, apparently telephoned one of our
clients to advise of the intended meeting in February 2015 with CMA and that ‘if
agreement
was not reached you would be litigating on all claims’?
Possibly this is why Lamb Brookes your solicitors (though I understood you were appointing
another firm this month) elected to ignore us and write directly to our clients at the end of
2014 advising, bizarrely, they were unaware of our continued involvement.
Page | 48
You have also stated that now, before you will answer our correspondence, you require
written confirmation from our client that we are instructed. Please:
1. Confirm this in writing
2. Explain why you are adopting this stance and
3. Advise why, to date (for years) you are seeking this change of process, you require
this authority
4. That you have applied the process to any and every party acting for an insurer and if
not
5. Why CMA are being singled out, treated prejudicially
If there is merit in your stance I will ensure thisoccurs. Likewise, on receipt of your reply, I will
give consideration to whether we require a letter from an identified member of the HA
staff
confirming that, with regard to any claim you are progressing, EM have express authority
to
act and to recover on the HA’s behalf. I do not anticipate this will be necessary; we are
sensible, rational people but possibly there will be grounds giving rise to your stance that I
need to consider from our perspective.
I remain mindful that you claim to step into the shoes of the HA, that you are in effect the
HA. We do not encounter such behaviour from the HA, TSol (or any other contractor for
that
matter) and subject to your response I will be seeking further direction about your
demand.
As for the remainder of the conversation, please return to me when you intend to be
reasonable and not rude. I terminated the conversation as I do not expect to be bullied,
to
be belittled.
This email has not been bcc’d … I will afford you the opportunity to respond promptly
,politely in the hope common sense and reasonableness will prevail.
I again ask you to:
Advise when I can expect a comprehensive response to mine of 23/02/2015
Clearly, given your behaviour today, I need to better understand your complaints
procedure.
Lastly, I am not unappreciative of your call just now (2nd) I do not have time to refer to the
email of 11/04/2014 @ 9:58 but thank you for explaining that this referred to the complaints
process and that nothing has changed. Assuming this email is relevant, take some comfort
from the fact that I did not recall ever having to request the process before, that I had
clearly, in my own mind, drawn a line under an ‘historical’ issue.
I will likely monitor my emails over the weekend, but do not expect you to respond other
than
during working hours. I must dash … children to collect from school.
Yours sincerely,
P Swift
Page | 49
APPENDIX VII Re FoIA request of Connect Plus M25
Tuesday, 13 October 2015
Our Ref: A03A001/L511934
ConnectPlusM25
Dear (redacted),
I refer to our conversations and thank you for your time.
With regard to my complaint, clearly I need to review this and to whom I need to escalate
some aspects. I note you have directed that your staff are not to disclose the breakdown
of the charges being presented, specifically the fixed fee for barrier damage not
exceeding 15m i.e. Sharon is simply doing your bidding.
With regard to my FoIA request (copy below) use of the ‘info@’ facility at HE is ineffective
and not one I wish to trust an FoIA request to; the Act allows another 10 working days for
the information I have sought to be provided.
The Freedom of Information Act applies to ‘Public Authorities’ such as Highways England
however, currently (2015) the FoIA does not apply to a Public Authority’s contractor. This
having been said, in June 2014 when responding to our Freedom of Information Act
request, the Highways Agency (now Highways England) advised 25/06/2015:
The answer is that contractors are not singularly subject to FOI.
Contractors are obliged to provide their Employer i.e. the Agency with information
upon request under the terms and conditions of our contract with them.
I was surprised to receive a decision from ConnectPlusM25 – hence I responded to you
earlier as though you were HE. My understanding is that ConnectPlusM25 should not
respond directly to a Request for Information, unless expressly authorised to do so by the
Secretary of State. As far as I can tell, no such authority was obtained, please correct me if
I am wrong.
Additionally, I understand that you have not transferred my request of 29/09/2015 to the
Secretary of State.
I am particularly concerned that you have made a resolute, final decision and effectively
spoken for the Secretary of State by explaining that even if you were approached by HE /
Secretary of State, your response would be the same; information would be withheld. Your
reaction suggests the default positon of ConnectPlusM25 is ‘withhold’. This is all the more
concerning given your statement:
Connect Plus does not intend to provide you with the information you have
requested (some of which is commercially sensitive or otherwise confidential),
either in the course of usual business or under the Freedom of Information Act 2000
(“FOIA”).
Page | 50
It is evident that not all of the information is considered ‘commercially sensitive or
otherwise confidential’ i.e. the remainder could be released but you have chosen not to
do so. Please indicate which aspects are not considered commercially sensitive or
otherwise confidential and in turn, why you are not prepared to release them.
I understand the Secretary of State is responsible for determining whether Information is
exempt from disclosure under the FOIA or whether Information is to be disclosed in
response to a Request for Information. However, in responding independently I am
provided sparse explanation by ConnectPlusM25 and no suggestion about how my
request could be tailored to ensure the exemptions, if applicable, are avoided.
It appears I need to raise an appeal at this early stage, to seek an ‘internal review’ of the
decision.
Naturally, I am concerned that ConnectPlusM25 appears to have acted contrary to the
contract and trust you will resolve this as a matter of urgency. If it remains your intention to
blanket avoid my request, please forward the request to the appropriate party and cc me
in on the action. Should I not receive confirmation the FoIA request has been acted upon
appropriately by close of business tomorrow, I will be left with no alternative but to
escalate the matter.
It is evident there is a lack of protection for freedom of information (FOI) rights and
damage caused by the outsourcing of important public services. It appears contractors
should be subject directly to FoIA, just as recently (2015) FoI was extended to the railways.
Indeed, you may wish to review the House of Commons Committee of Public Accounts
‘Contracting out public services to the private sector’ Forty-seventh Report of Session
2013–14. The following statement appears appropriate in the circumstances:
“Government needs a far more professional and skilled approach to managing
contracts and contractors, and contractors need to demonstrate the high
standards of ethics expected in the conduct of public business, and be more
transparent about their performance and costs.”
There appears to be a link between my complaint and FoIA; you have advised both that
your staff are not to disclose information to us and you have obstructed my FoIA request. I
again ask ‘why?’.
Yours sincerely,
Philip
Page | 51
APPENDIX VIII HE information M25 Contract extract
34 FREEDOM OF INFORMATION
34.1 Acknowledgement of Secretary of State Obligations
The DBFO Co acknowledges that the Secretary of State is subject to the
requirements of the FOIA and the Environmental Information Regulations and shall
facilitate the Secretary of State's compliance with its Information disclosure
requirements pursuant to the same in the manner provided for in Clauses 34.2
[Requests for Information], 34.3 [Disclosure of Confidential Information] and 34.4
[Retention of Information].
34.2 Requests for Information
34.2.1 Where the Secretary of State receives a Request for Information in
relation to Information that the DBFO Co or its sub-contractors is holding
on his behalf and which the Secretary of State does not hold himself, the
Secretary of State may refer to the DBFO Co any such Request for
Information that he receives. Any such referral shall be made as soon as
practicable and in any event within 5 Business Days of receiving the
Request for Information, and the DBFO Co shall:
34.2.1.1 provide the Secretary of State with a copy of all such
Information in the form that the Secretary of State requires
as soon as practicable and in any event within 10 Business
Days (or such other period as the Secretary of State, acting
reasonably, may specify) of the Secretary of State's request;
and
34.2.1.2 provide all necessary assistance as reasonably requested by
the Secretary of State in connection with any such
Information, to enable the Secretary of State to respond to
the Request for Information within the time for compliance
set out in section 10 of the FOIA or Regulation 5 of the
Environmental Information Regulations.
34.2.2 Following notification under Clause 34.2.1, and up until such time as the
DBFO Co has provided the Secretary of State with all the Information
specified in Clause 34.2.1.1, the DBFO Co may make representations to
the Secretary of State as to whether or not or on what basis Information
requested should be disclosed, and whether further information should
reasonably be provided in order to identify and locate the Information
requested, provided always that the Secretary of State shall be
responsible for determining, at his absolute discretion:
34.2.2.1 whether Information is exempt from disclosure under the
FOIA and the Environmental Information Regulations; and
34.2.2.2 whether Information is to be disclosed in response to a
Request for Information, and in no event shall the DBFO Co respond directly, or allow its
subcontractors
Page | 52
to respond directly, to a Request for Information, unless
expressly authorised to do so by the Secretary of State.
34.2.3 The DBFO Co shall, and shall procure that its sub-contractors shall:
34.2.3.1 notify the Secretary of State promptly if it becomes aware of any person
exercising its rights, or making a complaint, under the FOIA or Environmental Information
Regulations in relation to the Secretary of State; and
34.2.3.2 transfer to the Secretary of State any Request for
Information received by the DBFO Co or its sub-contractors
(as the case may be) as soon as practicable and in any
event within 2 Business Days of receiving it.
34.2.4 In the event of a request from the Secretary of State pursuant to Clause
34.2.1, the DBFO Co shall, as soon as practicable and in any event within
5 Business Days of receipt of such request, inform the Secretary of State
of the DBFO Co's estimated costs of complying with the request to the
extent these would be recoverable if incurred by the Secretary of State
under section 12(1) of the FOIA and the Fees Regulations. Where such
costs (either on their own or in conjunction with the Secretary of State's
own such costs in respect of such Request for Information) will exceed the
appropriate limit referred to in section 12(1) of the FOIA and as set out in
the Fees Regulations (the Appropriate Limit), the Secretary of State shall
inform the DBFO Co in writing whether or not it still requires the DBFO Co
to comply with the request and where it does require the DBFO Co to
comply with the request the 10 Business Day period for compliance shall
be extended by such number of additional days for compliance as the
Secretary of State is entitled to under section 10 of the FOIA. In such
case, the Secretary of State shall notify the DBFO Co of such additional
days as soon as practicable after becoming aware of them and shall
reimburse the DBFO Co (as Passthrough Costs) for such costs as the
DBFO Co incurs in complying with the request to the extent he is himself
entitled to reimbursement of such costs in accordance with his own FOIA
policy from time to time.
34.3 Disclosure of Confidential Information
34.3.1 The DBFO Co acknowledges that any lists provided by it listing or
outlining Confidential Information are of indicative value only, and that
the Secretary of State may nevertheless be obliged to disclose
Confidential Information in accordance with the requirements of the FOIA
and the Environmental Information Regulations.
34.3.2 The DBFO Co acknowledges that (notwithstanding the provisions of
Clause 33 [Confidentiality]) the Secretary of State may, acting in
accordance with the Ministry of Justice's Code of Practice on the
Discharge of Functions of Public Authorities under Part I of the Freedom
of Information Act 2000 (the Code) be obliged under the FOIA or the
Environmental Information Regulations to disclose Information
concerning the DBFO Co or the Project:
Page | 53
34.3.2.1 in certain circumstances without consulting the DBFO Co; or
34.3.2.2 following consultation with the DBFO Co and having taken its
views into account, provided always that where Clause 34.3.2.1 applies, the Secretary of
State shall, in accordance with the recommendations of the Code, draw
this to the attention of the DBFO Co prior to any disclosure.
34.4 Retention of Information
Notwithstanding any of its other obligations under this Agreement, including those
described in Schedule 15 [Information], the DBFO Co shall ensure that all Information
produced in the course of, or relating to, this Agreement shall be retained for
disclosure for the purposes of this Clause 34 [Freedom of Information] and shall
permit the Secretary of State to inspect such Information, as requested from time to
time.
Page | 54
APPENDIX IX Request of HE to undertake urgent audit of contractors
From: Philip Swift
Sent: 22 October 2015 09:07
To: 'Jim.O'[email protected]'
Subject: Urgent Audit of Contractors
Importance: High
Dear Mr O’Sullivan,
I am requesting Highways England (HE) undertake an urgent audit of contractors in
respect of the claims they retain. This is upon the basis that as loss adjusters acting on
behalf of several motor insurers, we have evidence and believe that certain contractors
are engaged in abusive conduct which only HE are in a position to investigate properly.
Your contractors retain claims below a threshold and either achieve a recovery or suffer
the loss themselves. For example, HE specify in contracts that contractors have accepted
the risk and responsibility of undertaking sub £10k ‘green claims’. We have been advised
by HE that your agreed processes require that these retained claims are self-regulating in
that the contractors must present detailed evidence to the insurers when seeking to
recover their own claim.
Unfortunately it appears that at present HE have no visibility or oversight of these
claims. HE has not undertaken any direct audits of individual sub £10k green claims and
we believe that as a consequence the lack of governance has allowed contractors to
create exaggerated claims for expenditure which has not been incurred in dealing with
specific incidents, but is used to cross subsidise their contractual duties owed to HE
generally. You will appreciate that the Courts take a dim view of such conduct and an
adverse judgment may also reflect badly upon the HE and the way in which such
contracts have been negotiated and administered.
HE have quoted, with regard to contractors:
“They can do what they like with their own claims, that’s absolutely nothing to do with us”.
This attitude is concerning and demonstrates that something is going badly wrong. The
self-regulation model is flawed ; for example, the ‘detailed evidence’ that is supposed to
be supplied to insurers when making a claim is not being provided. In some instances, the
request is being refused. The reasons are easy to understand; it is because when such
information is scrutinised it can be seen that certain contractors have no robust data
collection or tracking systems, or even a basic understanding of the adjustment processes
applied by insurers.
I would appreciate you acknowledging receipt of this request. We are more than willing
to provide blatant examples of speculative and exaggerated claims being sought from
insurers.
Yours sincerely,
P Swift
Page | 55
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