Whiplash: Important that claimants have options, says government
The fact that fewer than 10% of claimants use the Official Injury Claim (OIC) portal without legal representation does not mean the system has failed to deliver, the government said yesterday.
Rather, the Ministry of Justice (MoJ) said, it showed there was “demand for the greater choice” that the OIC provided, while not having legal representation “has not been an impediment” to a fair outcome.
Lawyers have also proven to be “adaptable” and able to continue to represent “a significant number of claimants”, it said.
The MoJ published an analysis of the operational performance of the OIC in its first year, which it said was not an evaluation of the reforms but nonetheless drew conclusions on how they were working.
There were 255,150 claims begun in the year to 30 May 2022 and have levelled out at around 24,000 per month. A further 131,000 claims were made through the pre-existing Claims Portal for cases worth up to £25,000.
The total of 386,000 was 15% lower than the previous, pandemic-hit year of 462,000 claims, which in turn was a drop of around 25% from the previous year, when 611,000 were begun.
Since lockdown restrictions were lifted, the report said, “we have seen a gradual increase in traffic volumes and accident rates, but levels are still not back to those seen pre-lockdown and driving habits have also evolved”.
Some 9% of claimants were unrepresented in the first year. “This is not on its own an indicator of how well the service has worked, how easy it is to navigate or how the market has adapted,” the MoJ said.
“What is important is that claimants have been provided with options as to how to achieve a proportionate outcome, regardless of the choice they make.”
The MoJ press release that marked the launch of the OIC portal on 31 May 2021 made clear that its aim was to reduce the number of claims, not to provide injured people with options for advancing their claims.
“It is anticipated that the majority of road traffic accident claims will use the portal in future,” the release said.
Yesterday’s analysis said claimants continued to be able to access justice: “The existence of a significant number of unrepresented claims being registered, progressing and settling demonstrates that OIC provides an accessible and easy-to-use process for those without a lawyer.”
The data indicated that unrepresented claimants did not find the OIC “overly complex”, with settlement rates, liability decisions and average compensation all in line with those achieved by represented claimants.
As expected, the MoJ said, unrepresented claimants were more likely to seek an uplift on their damages on the basis of exceptionality (32% v 20%). But the figure was “not excessively high, indicating that many unrepresented claimants understood that such an application needed to be evidenced and justified”.
So far as lawyers were concerned, “as indicated by the government during the passage of the [Civil Liability Act] 2018, the sector proved itself to be adaptable and law firms have found ways to increase efficiencies and continue to provide cost-effective services to a significant number of claimants.
“Such adaptation, along with uptake of legal expenses insurance, meant that many claimants continued to use professional representation to make a claim.”
The MoJ said pre-reform concerns that insurers would increasingly deny liability have not been borne out, while it would continue to monitor whether claims for non-tariff injuries were increasing “and additional action will be taken to address any issues” that are identified.
It reiterated its position that the question of how mixed claims – those involving both tariff and non-tariff injuries – were dealt with should be resolved by the industry and courts. A Court of Appeal hearing on this issue begins today.
The 2018 Act requires the Lord Chancellor to undertake an evaluation of the whiplash tariff by no later than May 2024, while insurers must report to the Financial Conduct Authority by 1 October 2023 on the savings they have passed on to policyholders.
“Following this, the government will publish and lay a report on the outcomes in Parliament as close to April 2024 as possible,” it said.
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