MoJ defends position on access to justice for children amid whiplash criticism

Children are exempt from using the new whiplash claims portal for the time being. They are also exempt from the small track claims limit rise from £1000 to £5000.

The incoming system of tariffs means that a vast majority of children injured in RTAs will fall under the small track claims limit, meaning they will struggle to access legal representation and will not be able to use the old portal either, the Association of Consumer Support Organisations and others have cautioned.

The tariff for a soft tissue injury lasting under nine months is expected to be £805.

However, the Ministry of Justice has hit out at criticism from Acso and other bodies following Parliamentary under-secretary at the Ministry of Justice, Chris Philp’s response to a question on the reforms, and affirmed its commitment to working in the interests of children and vulnerable road users.

Acso and others had argued that it had embarked on unintentional “poor policy making”.

A MOJ spokesman told Post: “We strongly disagree with this interpretation as there are already robust measures in place to make sure children’s claims are supported.

“Our whiplash reforms will make claiming for personal injury simple, fair and proportionate, but we continue to look at ways the regime can be strengthened further in the interests of all claimants, including children and other vulnerable parties.”

The MOJ sees no fundamental reasons for compensation for claims to be different for children, vulnerable adults or others, Post understands.

Judicial discretion could come into play, which would potentially lead to a child being moved from the small claims track to the fast claims track, where costs are recoverable.

In most cases, it expects a child would be represented by a “litigation friend”, which could be a parent, rather than a legal representative. 

Any settlement of a claim that involves a minor or vulnerable adult will have to be approved by a court, with legal advice on merits of any proposed settlement also required. This would be a recoverable cost, with current practice that an insurer would pay for this to be provided. 

While children are currently exempted from the increase of the small track claims limit, this will enable the system to be assessed by non-vulnerable claimants before a long-term approach is reached, it is understood.

Panned

Philp’s response was widely panned as “missing the point”.

Last week Acso executive director, Matthew Maxwell Scott wrote to Lord Keen, urging him to address the “flaw”. As of yesterday he had not received a response.

“They don’t seem to have acknowledged the problem that it presents,” Maxwell Scott told Post, discussing Philp’s answer.

He said: “The government has accidentally, I believe, created a situation whereby tens of thousands of children will not be able to get access to justice if they are involved in a road traffic accident and have a soft tissue injury.

“So the solution to it is to change the definition of whiplash in part one of the act to exclude children and protected parties. It is a minor amendment, but it solves it. It may be possible to solve it by statutory instrument, somehow. The other thing you could do is change the overall tariff number, so the minimum payment is above £1000. But that is [unlikely to] happen, so that doesn’t seem like the most elegant solution from the government or Association of British Insurers’ point of view.

“It just seems like a cock up. We’re four years into this now and we are still having fairly fundamental problems, which you think are not the initial intentions of the reform programme.

“Until we have implementation we will continue raising concerns around particular issues. I haven’t as yet had a response to my letter to Lord Keen, so I await that with interest. The response from Chris Philp missed the point a bit.”

Tariff uncertainties

Other groups have agreed that the government has failed to address the root concern. However, some have argued that the easiest way to solve the problem would be to alter the tariff system so that only the most minor injuries dip below the £1000 small claims track limit threshold.

Paul Nicholls, chair of the Motor Accident Solicitors’ Society, said: “This really hasn’t been thought through and is the sort of poor policy making that is only going to cause further problems for claimants and insurers.

“This leaves infants in a no man’s land where they cannot use the new portal, but are forced into the current portal, where insurers will either reject them or criticise the use of the portal if the settlement is below £1000.

“It is not entirely clear that the Minister understands this, let alone the practicalities of an infant litigant in person.  Of course, the best way to solve this would be to increase the tariff figures at the lower end so that only very minor injuries fall below £1000.”

Association of Personal Injury Lawyers executive committee member, Jonathan Scarsbrook, added: “The government has missed the point about the impact of the changes proposed for children and protected parties, which were not in contemplation when these issues were debated by both Houses of Parliament in 2018. 

“The practical reality of exempting the most vulnerable in society from the new portal and the small claims increase, but not the tariffs is that any child or protected party who recovers from a whiplash injury in under nine months (which is the majority) will be entitled to only £805 under the proposed tariff. 

“Without access to either the current claims portal or the new portal, the claim could only be made through the small claims procedure, which is highly unlikely to be possible as the cost of doing so would leave little or no damages for the injured person.  This change, while well intentioned was ill thought through and puts children and protected parties at a real disadvantage which is completely unacceptable.”

Insurers have also pointed out to ministers that there should be a mechanism for ensuring vulnerable parties are protected.

An Association of British Insurers spokesperson told Post: “We did point out to the MoJ  that it should be feasible to design a system that incorporates protected parties into the new structure.”