Guidance

Official Injury Claim Advisory Group Meeting: 17 October 2022 13:00 – 15:00

Updated 18 March 2024

Applies to England and Wales

1. Attendees:

• Ministry of Justice (Chair and secretariat) (MoJ)
• Motor Insurers’ Bureau (OIC service operators) (MIB)
• Civil Procedure Rule Committee (CPRC)
• Association of Personal Injury Lawyers (APIL)
• Motor Accident Solicitors Society (MASS)
• Forum of Insurance Lawyers (FOIL)
• Association of British Insurers (ABI)
• Law for Life
• HM Courts and Tribunal Service (HMCTS)
• MedCo

2. Introduction

1.David Parkin, as Chair, welcomed attendees and outlined the agenda for the meeting.

2.He also informed the group that this would be his last meeting, as he is moving on to a new role in MoJ. Members of the group thanked him for his contribution to the Whiplash Reforms and wider Civil Justice work.

3. OIC performance update

3.MIB outlined the operational data published on the OIC website on 10 October.

4.MIB also provided additional rolling data on exits from the OIC service and asked members for their views on the drivers behind the various reasons for exit. A helpful discussion was held in relation to:

• the underlying reasons for use of those exit categories;
• the wish for more guidance and clarity from OIC in relation to the selection of the most appropriate reason for exit; and
• the requirement that the OIC service mirror the Pre-Action Protocol and Practice Direction, thereby limiting any changes that can be made in relation to capturing reasons for exit.

5.The group were invited to give general thoughts on system performance. The following points were made:

• The settlement rate is increasing and is likely to continue to do so. Claims may still not be progressing as quickly as all parties would like, so focus must remain on how settlement rates progress.
• Settlement by claim type is an important factor when considering overall throughput.
• There are a number of drivers of efficiency/effectiveness that can influence the rate of settlement. It may be that some are waiting out the prognosis period for more complicated claims, which increases the average rate.
• Compensators have reported that they are not seeing medical reports coming through in the volumes they would have expected. Where this is down to technical reasons, it is hoped that we will start to see an improvement following fixes being implemented in the November and May code releases.
• Different API users have differing interests and needs, particularly on the speed of change. MIB confirmed that they are reaching out to known integrators to understand their progress and what MIB can do to help them get their solution to market for their clients. The MIB development team are available, operating an ‘open door’ policy, and have put on a number of workshops where users can talk about issues.

ACTION POINT: MIB and ABI to continue the ongoing discussions about guidance for compensators on reason for exit selection.

4. User behaviour discussion

6.MoJ outlined some OIC data trends and asked whether they were being driven by user behaviour. They highlighted that this was not driven by any concerns, but a desire to understand what the data could tell us about behaviour, and in turn how the service and PAP are working.

7.MoJ noted how progression through certain stages of a claim may be speeding up as professional users become familiar with the system, and therefore more efficient. However, MoJ asked whether any other behavioural drivers may help to explain these apparent trends and opened the floor to members for discussion. The following points were made:

• The 30-day liability decision deadline is needed, despite the vast majority of decisions being made more quickly - this is for those cases where extra time may be needed.
• Unrepresented claimants tend to provide extensive evidence and materials in relation to their claims, which can make a liability decision easier.
• There is inherently more back and forth involved with represented claimants, because another person is involved, which can help to explain the divergence between represented and unrepresented claimants in time taken to complete certain stages. A legal professional must respond to questions and ensure they are fulfilling their duty of care to explain the process, which adds to the overall time taken.
• It is important that medical reports address causation. Work is ongoing to ensure that this happens; communications have gone out to medical experts and additional training modules have been introduced to the MedCo accreditation process. Medical experts are being reminded that they should assess whether an injury is a whiplash injury in accordance with the definition in the CLA, not the appropriate tariff band. MedCo are keen to keep receiving feedback on the quality of medical reports.
• There has been an increase in representatives instructing physiotherapists, who often feel they are not qualified to comment on any psychological element of a claim. This can add to delay in reaching a final settlement. However, they account for a very small percentage of claims - mainly represented.
• Unrepresented claimants can struggle with choosing between a DME and an MRO. Work is ongoing on the guidance available to inform and support claimants.
• The time taken to respond to an offer will vary; claims with more elements (e.g., additional losses) will take longer to negotiate because more evidence is required.
• In relation to the handover from OIC to the court process, a large proportion of court forms are being sent back to issuers due to errors; often missing information, such as the full defendant address. A fix is scheduled which makes the inputting of certain text compulsory. MASS asked for feedback on the issues and errors being made and HMCTS agreed to provide this.

8.MoJ made clear that monitoring of behaviours is ongoing, and the group would return to the topic. Users should continue to provide feedback to their OICAG representative in this regard – as well as in respect of all other aspects of the service.

ACTION POINT: HMCTS to provide members with common reasons for returning court forms, which can be shared with practitioners to limit these types of mistake.

ACTION POINT: OICAG representatives encourage their members to continue to provide MedCo with feedback on the quality of medical reports.

ACTION POINT: MedCo and MoJ to discuss the description of MROs and DMEs on the service.

5. User experience

9.Members summarised some feedback from their respective sectors, covering experience of the service to date and suggestions for future areas of focus for the group.

Members raised the following points:

• There is a misunderstanding, by some, that proceedings can be issued for losses pursued away from the OIC portal and then separate proceedings can be issued later in relation to losses pursued via the OIC portal.
• Some courts have developed their own process, e.g., giving directions based on there being no written statement, despite the existence of the SCNF. It was agreed that this would be raised with the court in question.
• There is concern about claimant referrals to psychologists being made without specific explanation as to why that individual claimant needed to be referred, which adds extra disbursements.
• There has been little engagement from unrepresented claimants with third sector organisations so far. The visibility of the OIC portal, including gov.uk and third sector guidance, versus law firms was raised, as in previous meetings. It was agreed that this would be discussed out of committee.
• Whether it was intended that claims which are removed from the OIC service for complex reasons of law relating to causation, and which then litigate, are referred to the Small Claims Track rather than the Fast Track. MoJ asked for a summary of this in writing.

ACTION POINT: FOIL representative to raise their process query with the court in question (point 9b above) and send the CPRC member a summary of the issue.

ACTION POINT: MoJ to respond out of committee on the issue of OIC visibility.

ACTION POINT: MASS representative to provide MoJ with a summary of the issue regarding the appropriate court track when a claim has dropped out of OIC due to a dispute of causation.

6. Summary and next steps

10.MoJ confirmed that:

• they would write to members on any outstanding actions, where time did not allow for them to be addressed in the meeting;
• the minutes will be circulated to members for approval before publication on Gov.uk;
• the next meeting is scheduled for 20 January 2023.

ACTION POINT: MoJ to pick up any outstanding actions with members, where time did not allow us to address them in full at this meeting.

ACTION POINT: Members to respond to MoJ on their thoughts about the overall functioning of the Advisory Group.