MoJ accused of failing to address whiplash reform challenges

Lawyers have criticised the Ministry of Justice (MoJ) after it issued a report last week (29 November 2022) following the first year of operation for its Official Injury Claim (OIC) portal, designed to enable policyholders to report their own whiplash claims online.

The digital OIC system was part of the UK government’s whiplash reform programme, which was implemented on 31 May 2021.

While the original intention of the OIC portal was to reduce the “disproportionately high number and cost of whiplash claims in England and Wales”, legal experts have said that the system was not fit for purpose when it was introduced and that the MoJ has failed to inform the public on how to actually use the portal.

November’s MoJ report found that use of the OIC service grew exponentially following its introduction in May 2021, with over 250,000 claims submitted through the portal during its first year of operation.

The report stated: “The data shows that the number of claims started on the system increased from May until October [2021] and monthly data published by the Motor Insurers’ Bureau (MIB) shows that volumes have levelled out at around 24,000 claims per month.

“In addition, the latest data published by [the] MIB on 10 October 2022 shows that monthly claims volumes have subsequently remained at this level.”

Although the MoJ report indicated that the government department was pleased with the OIC portal’s progress so far, it did add that it is “still too early to make definitive assessments regarding the impact of the reforms - particularly given that external events such as the Covid-19 pandemic and its associated restrictions have had a wider impact on driver behaviours and road usage figures”.

The report continued: “That said, the data does indicate a reduction in claims compared with pre-reform volumes, although care is still required in relation to making firm assessments.”

Achieving objectives?

Within the report, the MoJ said that the OIC system has provided greater claimant choice in how to take forward a claim and has enabled claimants to represent themselves if they choose to do so.

However, the MoJ’s report and the OIC system in general has been criticised by legal experts.

Qamar Anwar, managing director of First4lawyers, said the system had failed in its primary purpose of allowing claimants to avoid the need for a legal professional to make a claim on their behalf.

He said: “The report may say it is just an analysis of the OIC’s operational performance, but it clearly goes much further than that. Unfortunately, it is a very one-eyed perspective of what has been happening.

“Motor claims are at a record low and the data we have seen so far suggests that is because, at least in part, claimants don’t understand the complex system.

“Despite promising the portal would eliminate the need for lawyers, around 90% of users still instruct one. And even that is becoming harder, with our own State of the market survey revealing that half of firms that previously handled low value road traffic accident (RTA) claims have stopped doing so.

“The knock-on effect of such change is that people seeking a lawyer now find their choice is severely restricted. This at a time when the Competition and Markets Authority is advocating more choice for consumers of legal services, not less.”

Anwar concluded: “The Ministry of Justice has been kicking this can down the road for long enough and must now answer serious questions about the effectiveness of the portal in delivering access to justice.”

A ‘flawed’ service

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations (ACSO), is unsurprised by the MoJ’s report findings.

He said: “The report’s analysis throws up little that was not already known about the operation of the OIC - for example, the number of bugs and fixes that have been required because the platform was inadequately tested before it was launched.

“The MoJ is careful to make clear that the report is an assessment, not an evaluation.

“The evaluation made by most practitioners in the sector is that the OIC remains flawed and while operations are improving, further collaborative work is needed - including input from practitioners - to improve its functionality.

“To achieve this, engagement from the market is required, preferably through a change control group where all sides can work together to get the OIC to ‘green’ status.”

In addition to concerns about the OIC portal’s functionality, Maxwell Scott also flagged that ACSO had calculated “that tens of thousands of claims have gone missing in 2021 compared with 2019, the year before the pandemic, suggesting that many people are not getting access to justice after suffering injuries that were not their fault”.

He added: “Ministers may be delighted that the overall number of claims has fallen sharply, but there remain question marks over the efficacy of the OIC [portal] as a user friendly digital claims journey.

“The report’s authors note that ‘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’.

“[However,] given the MoJ has spent precisely nothing on educating the public about the reform and the presence of the new portal, it is a bit rich to talk in warm terms about the variety of options open to them.

“And, in the period under assessment, less than 10% of claimants were unrepresented, underlining our view that there remains a huge gap in public knowledge about the impact of [the reform] on their rights and the options open to injured people wanting to make a claim.”