Publication - FOI/EIR release

Scottish Government switch from Ryde's Scale to quantum meruit basis: EIR release

Published: 25 Mar 2019

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Published:
25 Mar 2019
Scottish Government switch from Ryde's Scale to quantum meruit basis: EIR release
FOI reference: FOI/19/00483
Date received: 15 Feb 2019
Date responded: 15 Mar 2019
Information requested

 

We have been advised that Transport Scotland issued an instruction to the District Valuer’s Office to the effect that agents negotiating fees for any compensation claim relating to the AWPR received prior to 1 May 2014 were to be treated on the basis of Ryde’s Scale +25%. Any claims received after that date would be treated on a quantum meruit basis.

We are seeking the following information, specifically in relation to the basis of calculation of Professional Fees and with reference to the abandonment of Ryde’s Scale.

1. Please provide us with a copy of the instruction issued by Transport Scotland to the District Valuer’s Office containing the decision to implement the quantum meruit basis for calculating professional fees. (This was a change from the previous ad valorem basis of settling claims for professional fees which was Ryde’s Scale + 25%.)

2. Please provide us with copies of the relevant communications between the Scottish Government and Royal Institute of Chartered Surveyors which confirmed the formal abolition of Ryde’s Scale.

3. Please provide us with copies of any correspondence including emails or letters between Transport Scotland and the District Valuer’s Office, from 1 January 2012 to 31 June 2018 and copies of any minutes of meetings with these parties at which this matter was discussed?

4. Please provide us with copies of minutes of any internal Transport Scotland meetings and internal emails relating to changes to Ryde’s Scale and Professional Fees from 1 January 2012 to 30 June 2018?

5. Please provide copies of documents issued advising the District Valuer’s Office, RICS, consultants, agents and members of the public of the intention to change, or detailing changes that were to be made to a policy, (which has been the established basis for the calculation of professional fees since 1996) for the period 1 January 2012 to 30 June 2018?

6. Please provide details of all consultation exercises undertaken as part of the changes to Rydes Scale and Compulsory Purchase Order Compensation Claims - Basis for calculation of Professional Fees as detailed above from 1 January 2012 to 30 June 2018

7. Please provide details of the legislative changes that were enacted to enable Transport Scotland/ the Scottish Government to apply the methodology of quantum meruit which superseded the Ryde’s Scale ad valorem basis, from 1 January 2012 to 30 June 2018?

 

Response

 

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

 

Response to your request

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception(s) under regulation(s) 11(2) of the EIRs applies to that information.

An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception. This exception has been applied to Annex A, B and C contained within this response.

In general terms I can confirm that Ryde’s Scale has not been abolished by the Scottish Government and continues to be used on new claims subject to agreement between the District Valuer, the claimant and the agent.

Notwithstanding this, on 1 May 2014 the Royal Institute of Chartered Surveyors (RICS) published a guidance note titled “The calculation of surveyors’ fees relating to the exercise of statutory powers in connection with land and property” which advocated the acceptance of assessing agent’s negotiating fees on the principle of quantum meruit. Whilst the content of the note is a matter for RICS, on 13 June 2014 the Scottish Government formally wrote to RICS advising that “ It will be for acquiring authorities to consider the contents of the Guidance Note and come to a view on an individual case as to its relevance. However, the Scottish Government recognises that the calculation of such fees should in the first instance be based on the principle of quantum meruit.”

The RICS guidance note also confirmed that “Cases up to this date [1 May 2014] should be completed under any previously agreed fee basis”.

 

Turning to the specific points of your query.

Point 1:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as Transport Scotland did not provide instruction to the District Valuer to implement the quantum meruit basis for calculating professional fees.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about the instruction to implement the quantum meruit basis for calculating professional negotiating fees we cannot provide information which we do not hold.

 

Point 2:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as the Scottish Government did not confirm to RICS that Ryde’s Scale had been abolished.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in confirmation to RICS regarding the abolishment of Ryde’s Scale we cannot provide information which we do not hold.

However, I can confirm that on the 13 June 2014 the Scottish Government wrote to RICS on the principle of assessing agent’s negotiating fees. A copy of this letter is enclosed at Annex A.

 

Point 3:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as Transport Scotland did not email, write or hold meetings with the District Valuer confirming that Ryde’s Scale had been abandoned.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in discussions with the District Valuer regarding the abandonment of Ryde’s Scale we cannot provide information which we do not hold.

However, I can confirm that Transport Scotland held a workshop with the District Valuer on the 23 September 2014 to discuss the practicalities of assessing agents negotiating fees on a quantum meruit basis. Whilst there were no minutes taken of the workshop I have enclosed the agenda, invitation e-mail and attachments at Annex B.

 

Point 4:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as Transport Scotland did not email or hold meetings confirming that Ryde’s Scale had been abandoned.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in discussions within Transport Scotland regarding the abandonment of Ryde’s Scale we cannot provide information which we do not hold.

However, as referenced at point 3 I can confirm that Transport Scotland held a workshop with the District Valuer on 23 September 2014 to discuss the practicalities of assessing agents negotiating fees on a quantum meruit basis. Whilst there were no minutes taken of the workshop I have enclosed the agenda, invitation e-mail and attachments at Annex B.

 

Point 5:

As referenced at point 2 the Scottish Government wrote to RICS on the principle of assessing agents negotiating fees. This response was also issued to Transport Scotland, the Valuation Office Agency and the Association of Chief Estates Surveyors (Scotland). A copy of this letter is enclosed at Annex A.

 

Point 6:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as the Scottish Ministers did not undertake a consultation exercise on the calculation of professional fees.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about consultation exercises undertaken on the calculation of professional fees we cannot provide information which we do not hold.

However, I can confirm the Scottish Government did pass comment on the draft RICS Guidance Note entitled “The calculation of surveyor’s fees relating to the exercise of statutory powers in connection with land and property” on 22 May 2013 which I have enclosed at Annex C.

 

Point 7:

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which is does not have. The Scottish Government does not have the information you have requested as there were no legislative changes required to consider the payment of agent’s fees on a quantum meruit basis.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in legislative changes required to consider the payment of agent’s fees on a quantum meruit basis we cannot provide information which we do not hold.

 

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