APIL blog

At last - a balanced look at the whiplash issue
Deborah Evans | 07 May 2013

The Transport Select Committee’s inquiry into the true number and cost of whiplash claims has finally given claimant organisations a voice inside the halls of Westminster.

And news that the Government is not going to give a response to its whiplash consultation until the autumn means there is a good chance that the committee’s findings will be taken into account. At the very least, I hope the committee will note that, according to figures from the Compensation Recovery Unit (CRU), whiplash claims fell by almost 60,000 in the year 2012/2013. Claims are now back to the level they were in 2008/09.

This flies in the face of insurers’ claims of an ‘epidemic’. One of the features of an epidemic is that it spreads rapidly and widely. Scientists have yet to find one which reduces in size.

It’s hardly surprising that insurers are wide of the mark on this issue. The ABI has often based its claims about whiplash on anachronistic data. Its argument that the UK ‘has the weakest necks in Europe’, for instance, rests on a single survey that is nearly a decade out of date. The report, compiled by the, Comite European des Assurances was published in 2004 and relies on figures even older than that.

The truth is that the insurance industry’s disingenuous claims about whiplash are a misdirection designed to divert attention away from more inconvenient facts. According to the ABI’s recent report, Lifting the bonnet on car insurance – what are the real costs? the average car insurance premium in 2011 was £440. £88 of this was estimated to be caused by whiplash claims but £242 (more than half the average premium) went on car repairs and replacement vehicles. The Office of Fair Trading (OFT) has branded the area of car repairs as ‘dysfunctional’ and, having found that insurers’ approach to car repair and replacement “may push up premiums for drivers by £225 million per year”, the OFT referred the UK motor insurance market to the Competition Commission for investigation.

Similarly, documents disclosed as part of APIL’s judicial review showed that the ABI’s claims that premiums would reduce if changes to civil law were made were not as clear cut as they suggested.

In e-mail correspondence between the ABI and the Cabinet Office five days before the famous insurance ‘summit’ with the Prime Minister, the ABI refused to give chapter and verse on how much premiums would fall, saying “we absolutely cannot commit to a percentage… furthermore, we cannot commit to a timeframe.”

Since then, Direct Line and LV= have both publically indicated that premiums would not reduce significantly as a result of the changes.

The Government has already slashed lawyers’ fees in the RTA portal after being persuaded to do so by the insurance industry and is now considering channelling hundreds of thousands of injury cases through the small claims court on the same basis. This would have a devastating effect on access to justice with genuine claimants forced to pay for their lawyers out of their own pockets or take their chances in court alone against qualified solicitors, who usually represent defendants and their insurers.

Those who decide to go it alone without legal representation are likely to be considerably undercompensated and claims management companies will exploit any increase with aggressive marketing campaigns targeting injured people. This kind of publicity could even encourage more fraudulent or exaggerated claims, and yet the Government seems to think the small claims court is a panacea for dealing with fraud..

APIL’s carefully considered 10 point plan to eliminate fraud from whiplash claims was designed to tackle the problem effectively while maintaining the rights of genuine victims of injury, who are, after all, the reason the system exists in the first place. The Government’s proposals will simply create a process which works first and foremost for insurers and their shareholders.

The Transport Select Committee must listen to the facts. If changes to the small claims court are implemented, a totally unbalanced system will be created in which the rights of people suffering injuries through no fault of their own are pushed to one side. Only by listening to all parties can a balanced system be created, with balanced priorities and the interests of genuinely injured people at its heart.

The increase in clinical negligence claims - is it really the lawyers fault?
Deborah Evans | 22 Apr 2013

The press focuses on the fact that claims against hospitals continue to rise and that last year the Government set aside nearly £19 billion to cover compensation claims. Before jumping to conclusions, let’s understand the context - the facts behind the figures.

There are three reasons why the amount of damages paid out is going up. Firstly, if the NHS injures more people through falling standards, it will result in more claims. Secondly, those poor people who end up the most severely injured as a result of medical negligence are living longer. Thirdly, if the injuries inflicted (particularly in a number of the recent scandals) are more severe, they will obviously cost more to compensate.

When a patient is severely injured, he has high costs of future care. Each year, money will be spent on caring for such people’s needs – in some cases this may be round the clock care. Disabled people have much longer life expectancies than only a decade ago. Life expectancies for serious disabilities have increased by 50 – 100 per cent. The costs of care continue over a longer period of time, costing the wrongdoer - in this case the NHS - more.

Survival rates for the most serious injuries are increasing, which is good news. However, this also means that people are living with serious injuries who would previously not have survived at all. A baby with cerebral palsy, where the baby is brain damaged at birth, would have rarely survived a few years ago. Now, babies survive but need a lot of care.

What these costs do not demonstrate is rising legal bills. The cost per claim has actually gone down, and therefore it is wrong to point the finger at lawyers driving up these costs. A claim is only settled, and the lawyers paid, where someone has been genuinely injured. You only have to pick up a daily newspaper to see that hospital standards are falling – time and time again there is a story showing that there is a massive public health scandal here.

If the Government and the NHS want to reduce the costs of claims they need to stop injures happening in the first place. In an environment of cuts, there is a debate to be had as to whether there will remain enough money in the NHS system to provide for proper care for patients. Will the problem worsen over time?

Part of a lawyer’s job is to properly quantify claims and work out exactly what injured people need to provide for their future care. Lawyers bring great expertise to claims, and in particular, the precise calculation of compensation. Being injured should never mean being consigned to poverty, unable to afford proper care when the compensation has run out. Nor should it be the case that those injured through no fault of their own by the NHS should then have to rely on the cash-strapped NHS for their care needs.

No one deserves to be injured. Prevention, learning from mistakes, and a real focus on patient care is the best way to reduce the costs of claims. Claims only cost the NHS when people are injured on its watch. The scandal isn’t the rising cost of claims, it is the rising number of injuries. Let’s focus on cause, rather than effect.

The importance of scrutiny
Deborah Evans | 22 Feb 2013

Those who embrace scrutiny generally have nothing to hide, and welcome it as a means of giving assurance to the outside world that all is as it should be. Transparency engenders trust.

Those who eschew it, however, are often fearful of what will be revealed. And certainly, resisting scrutiny builds distrust and suspicion. So often, resisting scrutiny is about hiding the indefensible.

Scrutiny is particularly important in public life. The electorate places its implicit trust in those it elects, and scrutiny guarantees that trust is not misplaced.

So what do I mean by scrutiny? Well, it could take the form of a freedom of information (FOI) request to the Government – a simple written request for information – the agenda for a summit, the guest list for an event, the minutes of a meeting. Many organisations, including APIL, ask for such things occasionally to get a feel for how decisions are made and policies formed, what arguments are debated, who contributes to the thinking, what evidence is gathered. They do this to satisfy themselves that the thinking is proportionate, reasonable and balanced. In our case at APIL it helps inform the way we operate as an organisation, what research we carry out and what evidence we collect, how we, in turn, form our policies, and how we work with our members to ensure that they are prepared for a changing environment.

Obviously, if all such information was in the public domain there would be no need to ask, but it isn’t. Freedom of Information requests aren’t generally onerous to deal with – generally a quick e-mail in reply to a request , with an attachment, is all that’s needed. With modern technology, information is readily available at the touch of a button. But I believe unnecessary work is too often created by internal debate within the agency which has been asked to provide information about whether something should be released or not, so making a mountain out of a molehill.

Governments should always be able to justify their decisions, to show that they can provide evidence for their choices. Data and evidence should be used to shape a policy to ensure it will deliver its objectives. Governments tend to fear scrutiny when their decision-making is ideological rather than based on evidence, and they are unable to justify their actions. A Government which has made a good, informed decision will never be scared about providing the evidence. So what are we to make of reports that our Government is considering reducing the so-called ‘burden’ of FOI requests?

The press uses FOI requests as a tool to ensure ministers and civil servants conduct themselves in an ‘above board’ way. Too often, FOI requests show decision-makers in a poor light. Indeed, the MP expenses scandal would have been exposed via FOI requests had it not been overtaken by a leak. This is good investigative journalism through legitimate means.

FOIs aren’t the only thing under threat. Consultations, a well established method of gathering evidence, are now also viewed as a burden, rather than an asset. Consultations take 12 weeks – why? Because it takes time to assimilate evidence and carry out research to prove or disprove a hypothesis. It adds to, rather than inhibits, policy development. Yet the Government has now warned that we should no longer expect 12-week consultations. Is it that policy makers don’t want to wait 12 weeks or is it that they just don’t want to be questioned?

The Government is also considering removing the facility to judicially review (JR) its actions. The recent JR involving Richard Branson is a classic example of why this procedure is vital – the Government had not followed procedure and had made a decision that was fundamentally flawed. No-one enters into a JR lightly – they can typically cost six figures, and the adverse consequences can be huge. A JR is simply a last resort when a Government won’t listen.

Scrutiny shines a light on decision-making and mediates behaviour. Let’s not return to the dark days where decisions were made without impunity behind closed doors. We have too much to lose.

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