When the government’s new whiplash portal opened for business in May 2021, its aims were clear: make the claims process more efficient, take excess costs out of the system, and pass on subsequent savings to motorists.
Heralding the advent of the Civil Liability Act, the then justice secretary David Gauke said that whiplash claims would no longer be ‘an easy payday’ and that money would be ‘put back in the pockets of millions of law-abiding motorists’.
It is difficult to find anyone who believes these targets have been met. Claimant lawyers complain that the portal is plagued by technical issues, while defendant lawyers say incentives to game the system are still present. The time taken to settle claims has doubled in the last year and motor premiums have rocketed to an all-time high. The prospect of a £35 saving for every motorist – as trumpeted by the government back in 2021 – is for the birds.
The success or failure of the Official Injury Claim (OIC) portal has largely flown under the radar as many MPs who once railed against the whiplash ‘epidemic’ and the ‘weakest necks’ in Europe move on to other issues. But some remain concerned that claimants are being short‑changed.
The House of Commons justice committee this week highlighted that there are 349,000 unresolved cases in the OIC system and the average time to settle them is 251 days. One of the main reasons is the plethora of mixed claims – some two-thirds of the total – where the whiplash element is subject to a fixed tariff while other injuries are not. Most of these are on hold pending the Supreme Court verdict in Hassam v Rabot, but that is not likely to be resolved for several months.
The committee called on the Ministry of Justice to investigate the reasons for the growing number of unresolved cases and worsening delays in reaching settlement, and to publish its findings by the end of the year. It also wants insurers to be transparent when they explain to the government – as they are required to do by the Civil Liability Act – what savings have been passed on.
The committee, chaired by Conservative grandee Sir Bob Neill MP, pointed out that the government’s own impact assessment estimated that 30% of claimants would settle cases without legal representation. Evidence from claimant and defendant lawyers to the committee’s call for evidence said the actual proportion ‘going it alone’ is likely to be 3%.
The Association of Consumer Support Organisations pointed out: ‘Given the OIC was designed to be used by LiPs [litigants in person] and to remove the need for lawyers, this is a policy failure.’
The Motor Accident Solicitors Society told the committee: ‘Since day one it was argued that RTA claims are simple and straightforward, and that lawyers were simply an unnecessary cost in most cases. The reality is that even low-value claims often involve a degree of complex legal arguments and medical uncertainties.’
The publication of a 64-page guide to making a claim has not assuaged concerns that the system is too complicated.
Defendant representatives, meanwhile, say there is extra incentive to load up claims with non-whiplash injuries as they are not subject to a fixed tariff. The result, they add, has been that the claims industry has continued to thrive.
‘Claims for treatment for psychological injury have significantly increased since the whiplash reforms, with warning signs that the increase is bringing with it exaggeration and fraud,’ the Forum of Insurance Lawyers said. ‘Overall, there are concerns that the reforms have not overcome the “squeezed balloon” phenomenon: the concept that when claims and costs are limited in one area, activity switches to another to enable the claims sector to maintain claims volumes and costs.’
In its written evidence, the MoJ acknowledged that some high-volume professional users had experienced technical problems with the API connection. It said: ‘There are always going to be some technical issues when a digital system is launched, for example [Claims Portal Ltd] encountered significant issues when launched in 2010 which have been rectified over time.’
The MoJ also distanced itself from pre-portal predictions about LiPs, adding: ‘The proportion of claimants who are unrepresented is not on its own a measure of access to justice or the usability of the OIC, but outcomes are. OIC data shows that unrepresented claimants are settling their claims for similar amounts to represented claimants, and more quickly.’
The dissonance between the government’s assessment and portal users’ experiences is startling. As the committee pointed out, for all the confidence in the system displayed by the MoJ, the numbers tell a different story.
