Posted by Andrew Wild, head of legal at Legal Futures Associate First4InjuryClaims
Wild: Lack of public awareness
Almost four years and more than a million claims on from the launch of the Official Injury Claim (OIC) portal, the system designed to simplify the process is still beset with problems.
Set up in the wake of the whiplash reforms to deal with road traffic accident (RTA) claims valued at less than £5,000, the portal was purportedly to help claimants pursue damages themselves without the need for legal representation. The verdict? Consistently, around 90% still instruct a lawyer.
Average settlement times have been steadily creeping up since the start and now stand at well over a year, even though claims volumes have more than halved since 2018.
The promised savings on motor insurance premiums, we have been told, are a notional £31 over the first three years, which wouldn’t even pay for a tank of petrol, rather than the promised £35 a year. The government has also gone quiet on plans for a motor insurance taskforce to tackle the spiralling costs.
Only last month, the Association of Consumer Support Organisations (ACSO) called for a ‘root and branch’ review of the portal – something I suspect will also fail to materialise – but the following are steps that I believe could be taken now to improve the process. Maybe the post-implementation review due this year will bear these in mind.
Penalties for poor behaviour
There are currently no penalties for poor behaviour such as insurers stalling or making low-ball offers. This is unfortunately something we still see and particularly in relation to mixed injury claims, despite clear guidance as to how to value these being laid down by the Supreme Court.
ACSO estimates that there could be as many as 500,000 mixed injury claims stuck in the portal and, for many, this could be the reason why.
One way to address this would be to set up an independent behaviours committee or arbitrator to which such conduct could be referred for investigation.
Avoidable delays could also be dealt with by imposing strict timeframes in which parties must submit their response at different stages of a claim. Those that fail to adhere without good reason could either be fined or kicked out of the portal and made to restart the process.
Just the threat of any of the above is likely to act as an effective deterrent and encourage all parties to more swiftly progress their claims.
Medical reporting
Following a public consultation on the topic, the government has promised to review why so many claims in the portal are held up waiting for medical reports and to explore the development of an aligned process that is suitable for both represented and unrepresented claimants when obtaining medical evidence.
It has been suggested that one of the reasons for delays is that some claimants are being encouraged to wait out their prognosis period in case their recovery takes longer than predicted and lifts their claim out of the portal. From my perspective, this is a flimsy argument as the aim of any reputable claimant lawyer is for their client to receive the appropriate compensation award as efficiently as possible.
Regardless, the fact remains that there is a chasm of knowledge here and only when we understand why so many claims get stuck at this stage will we be able to do something about it.
Market intelligence (MI)
The average time taken to settle a claim in the portal peaked at 420 days in Q4 of last year; a significant increase from Q3 when settlement times were almost 100 days quicker.
The reason behind this is that the OIC automatically closed a number of ‘pending acknowledgement’ claims that had been laying dormant. ‘Pending acknowledgement’ refers to claims where acceptance of an offer has been sent to the compensator, but the compensator has not acknowledged this, which is needed in order to close the matter.
It is likely that there are many other claims that require review for different reasons, perhaps even ones that should be withdrawn. If they are not updated, however, then the OIC will still show them as being active which skews the data and makes it hard to gain an accurate picture of what’s going on.
I continue to urge all parties to regularly review their OIC data to ensure that it is up to date.
Collaboration
Since 2018, the number of motor injury claims has more than halved, yet there are more vehicles on the road and similar annual mileage numbers.
As Matthew Maxwell-Scott, executive director of ACSO which obtained the Compensation Recovery Unit figures under a Freedom of Information request, says: “People are still suffering injuries from RTAs, but they are not claiming, even though they have every right to do so.”
‘Why’ is the big question and I believe it’s down to a combination of factors including a general lack of awareness amongst the public about their rights.
The OIC portal was launched without fanfare or indeed any kind of publicity to inform people of its existence, instead relying on insurers to signpost their clients. This is at best optimistic, if not unrealistic, when you consider the vested interest many insurers may have in referring potential claims to their legal service provider partners.
Anyone expecting the Ministry of Justice to suddenly mount an awareness campaign may be waiting a while, but we as claimant firms can continue to apply pressure – by taking part in consultations and calls for evidence, and by sharing our thoughts as I am now to ensure that access to justice is safeguarded and not eroded further.
Collaboration also cuts both ways. As the OIC portal enters its fifth year, it is high time that we saw some progress in improving what is still a deeply flawed process for represented and unrepresented claimants alike.
Listening and learning from, rather than paying lip service to, the many stakeholders such as lawyers who have years of experience in this area would be a good place for the government to start.
A version of this blog first appeared on Claims Media.
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