OIC portal ‘does not work as well’ as previous MoJ process for whiplash claims

Nearly two months down the line since the Official Injury Claim (OIC) portal was launched, Carpenters Group director Donna Scully has emphasised that “so far, the OIC [portal] does not work as well as the old portal” because litigants in person (LiP) have had “issues uploading and initiating claims”.

The brainchild of the Motor Insurers’ Bureau (MIB) and the Ministry of Justice (MoJ), the OIC portal came into effect from 31 May this year, finally fulfilling the much-delayed part one of the Civil Liability Act, which gained Royal Assent in 2018.

A key objective of the new portal is to empower claimants to progress their own whiplash injury claims online, following a road traffic accident, without the necessary involvement of law firms or claims management companies (CMCs). Compensation is awarded using a new tariff table, which bases claim payouts on whiplash injury recovery times.

However, at this early stage following the OIC portal’s launch, Gallagher Bassett’s UK technical director Andy Sewell is finding that the opposite – in fact – is proving true.

He told Insurance Times: “The intention of the way the MIB built it [was to] be extremely user friendly, accessible for the direct claimant market and the litigant in person market.

“The vast majority of claims that we’ve seen [however, are] claimants being represented by mainstream claimant lawyers that were in play before the existence of [the OIC portal]. Around 5% of new claims are being presented from an unrepresented claimant.”

Sewell’s view is supported by research conducted by handl Group back in May, which found that claims industry professionals expected between 90% and 95% of injured claimants using the OIC portal to still be represented by law firms or CMCs.

Sewell added that this is “not necessarily so surprising” because “few claimants want to read the dozens and dozens of pages of guidance that’s out there for them to read”.

“Certainly, the intention of this portal being extremely user friendly for the purpose of it being full of direct claimants has not manifested initially,” Sewell noted.

Carpenters Group’s Scully agreed. She added: “We have loaded the most claims so far and things are working well enough from our point of view. However, across the claimant community, there have been issues uploading and initiating claims.

“So far, the OIC [portal] does not work as well as the old [MoJ] portal. Hopefully with time, input and collaboration that will change.”

Bumping up costs

For Sewell, a resulting impact of this “early trend” is that “where there’s legal representation of the claimant, the vast majority of those claims are presented with a whiplash injury for the tariff and also a suggestion of psychiatric issues and other soft tissue injuries which aren’t covered by the tariff”.

“When you then, conversely, look at non-lawyer represented claimants, they don’t seem to have those additional elements to them,” Sewell added.

He believes that whiplash injury claims were progressing towards this inclination for additional, mixed injuries pre-OIC portal, as the industry perhaps sought to create a “new normal” around insurers paying for non-whiplash injuries ahead of the portal’s implementation.

This could include, for example, “an increase in injuries to wrists from steering [wheels], seatbelt injuries, banging of knees, heads against windscreens and a rise in tinnitus”.

Sewell continued: “The strategy may well be that you create a new normal environment, [so] that once the OIC [portal] was launched, those claims don’t get challenged because you’ve been paying them on that basis in any event.

“It’s quite telling to see the sheer number of claims that have those additional injuries attached to them.”

This landscape is also influencing law firms’ business models, Sewell said – he predicts a “battleground” around compensation awards for non-tariff elements of motor injury claims.

“We know that a lot of claimant law firms have changed business models on the way claims are funded and how then costs are recoverable from their clients, with an increase in damages-based agreements being entered into,” he explained.

“If [law firms are] in those agreements, then the incentive will certainly be to drive the value of that case up as high as it possibly can go in order for their percentage to also increase in terms of recovery and that’s the only way that money, in terms of costs, can really be made on the low value claims that remain under £5,000.”

For Scully, industry professionals need to be cautious when reviewing additional injuries alongside whiplash claims due to the potential for fraud.

She said: “A new frictionless portal is always going to increase the opportunity to commit fraud or exaggerate, so we need to be alert to that.

“There are also a couple of elements to consider around behaviour on claiming the lower or upper whiplash tariff, non-whiplash injuries and when exceptional circumstances might apply.

“Some of this can be genuine where firms are acting in their clients’ best interests. However, some of it may well be gaming.”

Desire for data

Both Sewell and Scully have noted a low volume of claims coming through the OIC portal so far.

“The numbers generally of new claims that have come into the new OIC portal are very low, partly driven by the fact that the rules state that [use of the OIC portal is] on the basis of the accident date and not date of notification of a claim and equally, numbers aren’t anywhere near potentially the values they perhaps could have been. We’ve certainly not seen any stresses in that area in terms of volume,” Sewell said.

However, Scully noted that “the low volumes and decreased frequency we’ve seen are not likely to be a true representation of the picture” due to the difficulties claimants have had using the portal by themselves.

“We may never know if someone is truly a litigant in person, or if they are being represented by a CMC through the portal, but the numbers so far appear low,” she continued.

“We might be able to try and guess this figure, but without a mechanism in the portal to capture it, we’re all left somewhat in the dark.”

With this in mind, Scully believes data sharing is fundamentally important in uncovering the true trends coming through the OIC portal.

She said: “The new OIC portal can presumably produce good data from which we can see what trends [and] behaviour [are] emerging, good or bad.

“We have been pushing to get that data shared and believe the matter sits with the MoJ now and they will make the decision on when and how that data is collected, shared and acted upon.

“It’s vital this is done sooner rather than later.”