MoJ identifies where, but not why, OIC cases are being delayed

Bellamy: OIC has delivered greater choice

The period between a liability decision and the insurer making a first offer is where the ever-lengthening delays in the Official Injury Claim (OIC) portal are occurring, the Ministry of Justice (MoJ) said yesterday.

It also made clear that it was not concerned that the number of litigants in person using the service remains low – although it has inched up in recent months to 11% of all claims.

The MoJ made the comments in its response to September’s justice select committee interim report about the whiplash reforms, which had told the government that it needed to investigate why there was a growing number of unresolved cases in the portal.

The response declared that the OIC service “is working well and has grown consistently since its introduction, with over 635,000 claims commenced since 31 May 2021 and £218m paid out as of 31 October 2023”.

The MoJ insisted that claimants were not being put off from using OIC or bringing a claim at all from comparing the number of claims registered by insurers with the Compensation Recovery Unit (CRU) in the first nine months of the year (244,441) and number of claims brought via the OIC and Claims Portal over the same period (273,840), which “indicates that valid claims are not being held back post reform”.

However, these figures do not reflect the huge reduction in the number of claims from before the portal was introduced.

As of 30 September, around 385,000 OIC claims remained unresolved. The MoJ said an increasing number of these were dormant – some for “valid reasons”, such as the claimant waiting out their prognosis period before continuing their claim, but other claims “seem likely to have been abandoned”.

Many claims were also stalled to await the outcome of the Rabot Court of Appeal case on mixed injuries, “and OIC data does show there was an acceleration in settlements after this judgment was handed down”. But the case is now going to the Supreme Court.

There was “a significant tranche of claims which have stalled for other reasons”, such as claims which have received a denial of liability and which the claimant has chosen not to pursue but not formally closed.

Portal data will from January include the number of claims thought to be dormant.

The period between obtaining a liability decision and the insurer making a first offer to the claimant was the only one of the five stages of a claim where there was a significant discrepancy between the lifecycle of a claim brought by a represented claimant (217 days) and by an unrepresented claimant (74 days).

“No technical issues with the service have been identified by MIB which might be causing this discrepancy and consideration is being given as to what else could be at the root of this difference.”

One reason could be the different process for seeking and disclosing medical evidence for represented and unrepresented claims; the MoJ’s recent consultation on medical reporting asked whether the processes should be aligned – claimant lawyers, however, have strongly opposed this.

The figure for 30% of OIC users to be unrepresented came from the reforms’ impact assessment, but the MoJ said “this was an assumption—not a target—designed to indicate a maximum number of possible users”.

The response continued: “The MoJ has not set any targets for increasing the number and proportion of unrepresented claimants and this has never been an objective of the whiplash reform programme. OIC was designed to be accessible to both unrepresented and represented claimants.”

It added: “We are aware that some claimant representatives have asserted that the actual unrepresented claimant figure is closer to 3%.

“This estimate appears to have been calculated by assuming that claimants are not truly unrepresented if they are receiving third party support from someone other than a lawyer, such as a family friend, colleague or an insurer.

“The MoJ disputes this definition. An unrepresented claimant is an individual who is using the OIC service directly, without the assistance of a legal professional and irrespective of whether they are seeking/receiving help from another type of professional (such as a teacher, advice sector provider or an insurance company).”

The MoJ said it did not agree “that the number of unrepresented claimants using the OIC is a point of concern”.

In his introduction to the response, justice minister Lord Bellamy said: “OIC was implemented to provide greater choice and the 67,000 claimants who have chosen to bring their own claims – compared to virtually none pre-reform – is testament to this greater choice.

“I am pleased that the web-based service used by these unrepresented claimants has worked consistently well since launch. We are committed to optimising the visibility of OIC, to ensure that claimants can access the service and helpful information when they need it.

“I am also pleased that the API-based system, via which many professional users access OIC, is now working well following the resolution of some technical issues. System changes proposed by users are now enhancements, rather than issues which require fixing.”

He added that MoJ officials were already engaging with their counterparts in HM Treasury to ensure “a robust review of the impact of the reforms on costs for motor insurance policyholders”, which must be published by 1 April 2025.

The MoJ will also review the operation of the portal next year, after its third anniversary.

Justice select committee chair Sir Bob Neill MP said: “The committee welcomes the MoJ’s commitment to investigate in detail the timely progression of claims following concerns raised in our report.

“However, it is disappointing to see that unresolved claims now stand at around 385,000 – a 10% increase on the figure cited in our report. It is incumbent on the MoJ to examine the reasons for this and the committee awaits the publication of additional data early next year relating to the impact of dormant claims on outstanding claim volumes.

“One of the objectives of the OIC portal was to simplify and speed up the process of making a claim for whiplash injuries and it is vital that becomes a reality for all those using the system both represented and unrepresented.”

Mike Benner, chief executive of the Association of Personal Injury Lawyers, commented: “Despite repeated assertions from the government that the OIC is ‘working well’, there is still a clear divergence between the number of claims and the number of people being injured.

“Comparing claims data from the [CRU] with claims data from the OIC, as the government has done, is not the way to establish whether access to justice is being served because it does not take injury levels into account.

“There has been an undeniable collapse in the number of road injury victims seeking recompense since the OIC was introduced, at the same time there has been a very steep rise in the number of road casualties.

“Claims numbers have fallen by a quarter, while the number of road casualties has increased by nearly a fifth according to Department for Transport figures.

“By not making reference to the number of injuries suffered, the Government’s assessment misses the point. A justice system in which victims of negligence are not retrieving redress cannot ever be deemed a success.”

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