Natalie Harvey, a partner at Thompsons Solicitors and expert in road accident claims, comments on the Ministry of Justice (MoJ) publishing a five-step guide to the Official Injury Claim Service earlier this month, following on from changes to the small claims limit that came into force in May 2021.

A five-step guide to the whiplash portal was slipped out by the MoJ with little fanfare in February 2022. To even find it, you’d have to hunt through pages and pages of government publications and updates – hardly something a litigant in person with a busy life is going to have time to do.

But this is not a surprise. The MoJ has form on major changes being announced below the radar - think the changes to the small claims limit for road accident victims last May and changes to the small claims limit in all other personal injury cases from this April.

But this guide – rather like its 64-page big sister that was brought out when the changes came into force last year - is confusing, vague and at times completely unhelpful. 

It’s unclear whether the MoJ is doing its best, by failing to provide people with timely, digestible explanations of its actions, to ensure that its desire for a reduced number of claims after the reforms is met. But what is clear is that the only people to suffer, yet again, are claimants who will miss out on compensation, and the only people to gain will be those due to pay out that compensation -namely insurers.

The most recent statistics show that just 10 per cent of those using the Official Injury Claim Portal (OICP) are unrepresented, which means that most claimants are still going to solicitors for help as they always did. They are certainly still coming to us, and when they do we are having to explain the changes to them. 

We don’t know whether people are still using lawyers because they don’t know about the changes or if they are daunted by the sheer complexity of the system, but what we do know is that this isn’t the easy access process we were promised.

And what of the five-step guide itself?

It’s certainly shorter than its big sister, but it still has to make regular reference back to the original 64-page Guide to Making a Claim.

It directs claimants not to use the OICP if their injury claim is worth more than £5000. But how could the average lay person possibly know what their injury is worth? Indeed, until the issue of hybrid injuries is resolved, even insurers and those representing claimants are not entirely clear, so the lay person is surely at a loss.

The section on liability in the guide is woefully inadequate and that’s probably because liability for road traffic accidents, regardless of the value of the resulting claim, is often complex (and exactly why this shouldn’t be left to an online portal for unrepresented claimants to navigate). How is the average layperson to know if the other driver is 25 per cent, 50 per cent or 100 per cent liable, or not liable at all? The guide simply tells the claimant they can go back with liability proposals up to three times on the OICP, but there is no guidance or support as to how they determine what a reasonable proposal might be. 

There is no explanation as to how a claimant can challenge a medical report or request factual errors are amended. The five-step guide simply says the report should not be sent to the insurer until the claimant has agreed, but that’s it. There is no guidance in the medical section as to how the claimant will know when the claim is ready to settle, i.e. that they should have recovered in line with a report or that the report may say their injuries are permanent.  And the guide is silent on how a claimant will know when their case is no longer suitable for the OICP, perhaps because their injuries have persisted for longer than expected or have become more complex.

While the guide lets claimants know they can wait out the prognosis, the implications of not doing so and potentially settling their claim too early are explained like this: “Waiting out your prognosis can provide you with additional information, but it can also mean a delay in reaching a settlement. Once you accept the offer, your claim will be closed and cannot be reopened. The insurer will then contact you to arrange payment”.

This is as clear as mud and the risk that a claimant could settle their claim yet not recover within the time expected, and even deteriorate significantly meaning they could be hugely undercompensated, is not explained anywhere.

The negotiation section remains as unhelpful as the original guide in terms of adequately supporting a claimant to know what their claim is worth, particularly if they have suffered non-whiplash or mixed injuries. The only straightforward aspect is the tariff dealing with pure whiplash injuries, but many claims have a non-whiplash element. The guide contains a link which directs claimants to the Resource section of the OIC website, and this in turn gives a link to the original 64-page guide, which contains no helpful information whatsoever, simply referring to the Judicial College Guidelines (which is not a publication on most people’s bookshelves). The explanation for the lack of clarity is that the MoJ don’t know how mixed injuries will be valued – another major flaw baked into this scheme.

The section on non-protocol vehicle costs simply says the OIC service and supporting guidance can provide further information on how to progress, which is vague and unhelpful for a claimant trying to work out what to do about credit hire costs, for instance.  

Claimants remain on their own when it comes to standing up to an insurer in negotiations and there is no guidance about what grounds there may be to do so. The reality is that only a legally represented claimant can ensure that they get the right advice to secure the maximum compensation when going up against an insurer, but the MoJ can’t say that because it undermines the whole charade that this system is consumer friendly and fair. 

The final section aims to deal with the possibility that a claim breaks down and a case has to go to court, but again it’s very vague and provides no clear guidance about the circumstances in which a claimant could find themselves having to take their case to court and what might happen if they do. And once again, the complicated 64-page guide is wheeled out as the place to look for further information. 

The rollout of this portal and the external communications – or lack thereof – since May 2021 from the MoJ have been nothing short of shambolic. Injured road users know nothing more now than they did more than half a year ago, and we expect they will continue to come to us in their droves looking for guidance that the MoJ is not giving them.

Fortunately, as is so often the case, the trade union movement has stepped in to help. Many trade union members across the UK, and their families, injured in a ‘small claim’ on the roads will continue to receive free legal support despite the new law, as unions have agreed to cover the legal costs. It won’t fix the ‘David vs. Goliath’ situation that the government has imposed on claimants, but it will at least go some way to levelling the playing field.

To find out more about our work with trade unions, visit our trade union hub.