Four leading legal charities have urged the government to delay next year’s whiplash reforms over fears that litigants in person and the organisations supporting them will be overwhelmed by the new regime.
The Personal Support Unit (PSU), LawWorks, Advice UK and the Access to Justice Foundation said the planned start-date of 6 April 2020 should be put back by at least a year.
The charities said the Ministry of Justice (MoJ) had estimated that raising the small claims limit for whiplash claims from £1,000 to £5,000 could leave around 150,000 claimants without legal representation.
They warned that if 150,000 people visited the PSU only once for basic guidance, the charity’s current workload every year could be tripled – “an impossible equation on current resources”.
As it was, the LASPO cuts to legal aid had increased the PSU’s workload from just over 10,000 contacts a year with litigants in person (LiPs) in 2012 to over 75,400 in 2018/19.
The charities said that, so far as they were aware, “no conversations have yet started with relevant third sector organisations”, and no attempt had been made to estimate the resource costs of the whiplash reforms, “let alone the processes by which it might be delivered”.
They predicted that law centres, Citizens Advice services and the 660 social welfare and legal advice centres that make up Advice UK would all be “among frontline sources of help”, though in most cases they had never provided advice on personal injury matters.
There were concerns, “even within government”, that the new whiplash portal for LiPs could be “too complex for injured people to use without support” and claimants lacking experience or access to IT could be completely excluded.
“A telephone helpline and last-resort paper option are to be offered, but have not yet been thought through,” the joint briefing paper said.
It described the proposal to provide a “self-help tool” for LiPs as “flawed” because it assumed a level of capability not supported by evidence.
“It is optimistic (at best), to expect that litigants in person will be able to (a) argue the complexities of liability; or to (b) fully evaluate the losses they will be entitled to claim; and (c) recognise the potential long-term impact of what may initially appear to be a minor accident.
“There is a real risk of serious inequality of arms. It is not hard to envisage a situation where an uninformed LiP could accept an apparently generous settlement offer from an insurer, with very little idea of the potential value of the claim they could have submitted with help from an experienced lawyer.”
The charities also highlighted the many areas which remained unclear, such as how mediation within the new process – or what they called the “one-way adjudication” – would work, and the risk that LiPs would treat it as a “default substitute” for legal advice.
They said the MoJ believed in the “iterative” development of the whiplash portal and planned to launch a ‘minimum viable product’, with further processes added over time.
“It is vital that time is spent ensuring the portal is fit for purpose, and is thoroughly tested before going live.
“The project has been under way since before the last general election of June 2017, and considerable work is still needed to scrutinise the online screens in detail, to ensure even the minimum viable product.”
The charities concluded: “We are extremely concerned that the proposed timescale of testing in October 2019, followed by implementation in April 2020 is unrealistic, given the number of stakeholders, the details yet to be agreed, and the significant lack of preparation put in place to support LiPs managing these complex and potentially life-changing situations.
“We ask that the timeline is reconsidered as a matter of urgency, and suggest the target dates are postponed by at least one year.”