Guidance

Whiplash Reform Programme: Information and FAQ

Updated 6 December 2023

Applies to England and Wales

General questions

When did these reforms come into force?

The whiplash reforms were implemented on 31 May 2021.These measures only apply to claims resulting from accidents which occur on or after 31 May 2021. So even if a claim is made after 31 May, if it relates to an accident before that date the existing rules will apply.

How do I find out more about the new system?

You can visit the Official Injury Claim website which hosts a breadth of resources including a Guide to Making a Claim and links to various guides on the OIC YouTube channel.

The insurance industry stands to save a lot from these reforms, how can we be sure that these savings will be passed on to consumers through lower premiums?

The government agrees that, having made a firm commitment to pass on savings to consumers, insurers should be held to account. This is why the Civil Liability Act 2018 includes a statutory requirement on insurers to provide information to the Financial Conduct Authority (FCA) on how they have passed on savings. Insurers must provide this information by 1 October 2023. The government will then, with the assistance of the FCA, assess whether the industry has passed on the benefits of the reforms to consumers, and a report will be made to Parliament, as soon as is practically possible, after April 2024.

Official Injury Claim (OIC) Service

How will an unrepresented claimant make their claim without the help of a lawyer, and what if they don’t have access to a computer?

Substantial work has been undertaken to ensure that the service provides a fair, accessible and efficient system for all claimants. The service has been carefully designed with the claimant firmly at its heart and provides a modern, user-friendly digital system, supported by guidance. Claimants who are unable or do not wish to use the system may also seek assistance from the dedicated telephone support centre.

How will an unrepresented claimant understand the new pre-action protocol?

The new small claims Pre-Action Protocol provides a process to help parties reach a fair settlement and also deals with the steps they should take if they need to start court proceedings. However, the OIC service has been carefully designed to mirror the requirements of the PAP. This means that claimants who process their claim through the OIC will automatically meet all the requirements of the PAP, and do not need to read it. The Guide to Making a Claim provides additional guidance for claimants, and the telephone helpline service can also provide support.

How can I access the Guide to Making a Claim?

It is available on the Official Injury Claim web resources page. It is worth remembering though, that you do not need to read the entire guide before making a claim, and only need to refer to it if you require additional support with a part of the process.

Valuation of claims

How can a claimant assess the value of their claim?

The ultimate value of an injury claim cannot, of course, be known with certainty at the start of a claim. The user will be assisted by the service and the Guide to help them understand what level of tariff may apply, the medical report will also help an unrepresented claimant to understand the value of their injuries. The OIC also links users through to relevant extracts from the Judicial College Guidelines to help them estimate the potential value of their claim at that early stage. The guidelines are used by the court to help assess the value of a claim.

The Tariff/Judicial Discretion

Why is the Government introducing a tariff - rather than use the current judicial college guidelines (JCG)?

The Government gave very careful consideration to this issue and did not rush to the view that a tariff was needed. There was extensive consultation and the pros and cons of the tariff were debated in Parliament before being passed into legislation.

The new tariff provides claimants with clarity, predictability and certainty as to the value of their claim and the levels, which are set by the Lord Chancellor, ensure that both proportionate compensation is paid and that costs are controlled.

How were the tariff levels set?

In setting the figures, the government considered a number of factors including both the suggested guidelines for compensation set by the judiciary and the average levels of whiplash compensation paid, as well as the overall government objectives to control costs and benefit consumers through reduced premiums. Data was gathered from a number of sources including insurance injury data on actual settlements made, as well as from claimant lawyers and other Government Departments. The tariff amounts were up-rated to reflect inflation, and the views of Lord Chief Justice were sought before the figures were finalised.

What does exceptionality mean?

This is as defined in section 5 of the Civil Liability Act and what is ‘exceptional’ will be particular to individual claimants. Ultimately the Act will be interpreted by the Courts.

Will the tariff figures be reviewed, e.g. every year or three years by a suitable inflationary measure?

The Act requires the MoJ to review the tariff within 3 years and then within every 3 years after that.

Mixed Tariff Cases

What is the approach for resolving mixed tariff cases?

This was recognised in section 3(8) of the Civil Liability Act which provides that, where a claimant suffers injuries in addition to a whiplash injury, the court is not prevented from awarding damages that reflect the combined effect of the injuries sustained.

Ultimately, then, the courts will need to determine how mixed injuries are addressed and we are confident that judicial expertise can resolve these cases on a day-to-day basis.

The Ministry of Justice are aware of the work of the cross sector working group on mixed injuries and support the principle of industry collaboration to improve the claims process for injured parties.

Can the OIC Portal be used to claim for mixed injuries?

Yes. The protocol and OIC service are designed to be used for mixed injuries or even non-whiplash injuries on their own, unless the overall value of the injury element is worth more than £5,000, in which case Claims Portal may well be the right place to start a claim, subject to the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

Medical Reports

How will unrepresented claimants obtain their medical report?

The OIC service is fully integrated with MedCo and once a liability decision has been received by the at-fault insurer claimants can proceed through the system to obtain their report. Claimants can search for either a directly instructed medical expert (DME) or a medical reporting organisation (MRO) to provide their report. If the at-fault insurer has accepted any portion of liability they will also pay for the report.

How will unrepresented claimants understand their medical report?

MoJ has worked closely with MedCo to ensure that medical reports are presented in an accessible and user-friendly format, whilst also continuing to include all necessary information on the claimant’s injuries and prognosis. The report provider also has an obligation under the new rules to upload the relevant information from the medical report to the service where the claimant may review and decide whether to accept it. Additional requirements for both DMEs and MROs have been developed to ensure that unrepresented claimants are fully supported through the medical report process.

What happens if the first medical report says they need a second expert?

The presumption is that most claimants will only need one report. However, medical experts are required to provide information on the type of specialist required if they recommend an additional report. The process also allows for the claimant to source their own second medical report through their MRO (if they chose to use one) or the at fault insurer may help the claimant to arrange the second report where one is justified.

Will medical experts know the tariff bands?

Yes, medical experts are aware of the different bands. We engaged with MedCo throughout the process and the necessary training was provided to experts and MROs. If a prognosis was to ‘stretch across two bands’, then the higher band should apply.

Is it possible to get a medical report before submitting a claim?

An injured claimant should seek treatment if they need to but should not seek a medical report before submitting their claim. The Pre-Action Protocol discourages this and doing so may ultimately lead to sanctions for not using the relevant portal process in either rule 45.24 or rule 45.29M.

Who pays for the medical report(s) when the claim is brought by the unrepresented claimant?

If the at-fault insurer has accepted any portion of liability, they will pay for the report which is uploaded and relied upon by the claimant. The OIC service is fully integrated with MedCo and once a liability decision has been received by the at-fault insurer, claimants can proceed through the system to obtain their report.

If the claimant receives a 100% denial of liability, they may need to seek advice on the viability of their claim and will need to consider how best to source evidence to support their claim. Practice Direction 27B makes clear that liability may be determined by the court without recourse to a medical report. If the compensator is held by the court to be liable, then a report will be obtained.

Exactly when payment is made is a commercial decision between the report provider and the at-fault insurer, and as such it is not appropriate for Government to advise on this issue.

Covid-19 Impact

Will this have an impact on court resources already affected by the Covid-19 pandemic?

Whilst the Covid-19 outbreak has put pressure on Her Majesty’s Courts and Tribunals Service (HMCTS), the Government instigated a robust courts recovery plan to alleviate the challenges posed by the pandemic. A full impact assessment on the effects, costs, benefits and savings of the reforms was published. MoJ officials continue to work closely with HMCTS to understand and mitigate the operational impacts of the reforms on the courts system, the personal injury and other sectors.

Fraud

What do these reforms do to tackle fraud?

The measures in the whiplash reform programme act to reduce fraud. The ban on seeking or making offers to settle claims without medical evidence will ensure that insurers can no longer choose to settle claims for financial reasons, without investigating and verifying that the claim is genuine. Additionally, the increase in the small claims track limit reduces the costs associated with civil litigation, encouraging greater challenge to potentially fraudulent claims.

EL/PL Claims

Is the Government going ahead with its plans to increase the small claims Track Limit for employers and public liability claims to £2,000?

Yes, although having reflected on stakeholder feedback, the government decided to defer the implementation of this measure until April 2022 and to amend the proposed increase to £1,500. This pragmatic decision will provide additional time for affected stakeholders to prepare for the increase. It will also enable the government and personal injury sectors to focus on ensuring road traffic accident claimants are supported appropriately through the new Official Injury Claim digital service.

Accessing the courts

Will Dispute Resolution be available?

The Service was designed with all users in mind and will be simple and easy to operate. Therefore, we expect the vast majority of claims to be settled under the new small claims Protocol, as they were previously. However, there will be occasions when insurers do not accept liability, and claimants will need to be able to resolve liability disputes. In these situations, we have introduced, through Practice Direction 27b, a bespoke process to enable litigants to go to court to resolve liability and other disputes.

What happens to my information if I need to go to court?

The Portal was designed to help the user progress and settle their claim. If the user is unable to reach a settlement the service will use the information they have inputted to prepare a court claim form. It also creates the court pack that can be used to issue proceedings at different stages of the process, should this be necessary. A user may, for example, issue a claim early on to resolve liability, but then come back into the portal to continue with their claim.

Behaviours

Will there be sanctions against users who try to break the rules or game the system?

The Government expects that, in the vast majority of cases, both parties will co-operate and move towards a fair and speedy resolution. The new system does however produce a considerable amount of data which can be analysed to identify changes in user behaviour. This will be monitored by the government and information will be shared with regulators such as the FCA or the SRA for consideration and enforcement action where required.

We would advise anyone who has evidence of such behaviour to report it to the relevant regulator.

Rehabilitation and Credit Hire

How will unrepresented claimants access rehabilitation if they need it?

Users of the service have the importance of rehabilitation and options for obtaining it explained to them (for example, this may have been organised by them directly or via the compensator) but they cannot use the service to access rehabilitation services. The at-fault compensator will usually offer rehabilitation where appropriate and users are given information on other options for obtaining rehabilitation. If a claimant has incurred rehabilitation charges, even on credit, they may be added to their claim on OIC as non-vehicle damages.

Is credit hire part of the service?

Settling the cost of a replacement vehicle supplied to a claimant on credit terms, often called credit hire, is not formally part of the Protocol process. We expect that the majority of these claims will continue to be settled separately via industry agreements as they were before the reforms. However, we have ensured that the rules, OIC service and guidance has a supportive procedure to help claimants if they need to add credit hire or other costs to their personal injury claim before entering the court process.

Governance

What data is available about how the OIC is performing?

The OIC service captures a significant amount of data which is published on a quarterly basis. The first tranche of data was published on 21 October 2021 on the OIC website.

How are you monitoring the operation of the service?

We are closely monitoring the operational data from Official Injury Claim to understand how it is operating and any trends.

We continue to engage regularly with stakeholders, including through the Official Injury Claim Advisory Group.

Fees

What fees apply if a claim goes to court?

We published a Court Fees Update on Thursday 13 May 2021.

What if a claimant needs help with paying fees?

Claimants are able to apply for help with fees online or use the paper based route to apply at the court handling their claim. This sits beside the OIC. Further guidance on applying for help with fees

Document last updated on 30 September 2021.