Official Injury Claim and fraud – two years since launch

We are now two years since the launch of the Official Injury Claim (OIC). In this blog, we offer some further thoughts on the whiplash reforms, fraud risk in the OIC and the available data.

The data

The Ministry of Justice (MOJ) continue to periodically release the data captured by the OIC. The latest publications can be found here.

There has been a total of 521,528 claims presented in the OIC from launch in May 2021 to April 2023. Of those 5,678 (1%) legally represented claims and 324 (0.06%) unrepresented claims exited the OIC with a formal allegation of fraud.

In addition, there are 12,912 (2.5%) legally represented claims and 566 (0.11%) unrepresented claims that fell out of the Protocol due to a dispute that the accident caused injury. Whilst these are not a formal allegation of fraud, by implication the compensator is of the view that the claimant is not being truthful.

The data indicates that there is a small percentage of claims where a compensator felt there was enough evidence to support a formal allegation of fraud. Of course, the number of fraudulent claims that have flown under the radar and have been paid, remains an unknown.

The data indicates that disputes that an accident caused injury are more prevalent and perhaps that is to be expected, given that the OIC is designed for low value injury claims often associated with accidents at a low speed.

Fraud risk

However, the MOJ data does not tell the full story. Kennedys’ own data offers some further insights.

The areas of fraud risk and behaviours we are advising compensators on include farmed claims, low speed impacts not causing any injury and exaggerated injuries.

We continue to see claims layering designed to maximise the financial reward, such as remote physiotherapy, CBT and fabricated invoices.

We are seeing a considerably higher percentage of represented claimants choosing a physiotherapist (not a general practitioner) as the first medico-legal expert, when compared with unrepresented claimants. This is despite a physiotherapist not being able to comment on any psychological injuries therefore the claim requires a second report.

Or, more subtly, the same medico-legal experts always recommending the same treatment.

There is a growth of psychological injuries (70% of settlements between May 2022 and April 2023 involved psychological injuries), multi-site injuries, non-tariff injuries and an increase in injuries beyond objective testing, such as tinnitus.

We continue to track the delayed submission of medical reports (significantly more for represented claimants) and those seeking a 20% uplift for exceptionally severe whiplash or exceptional circumstances.

The fundamentally honest view

In our previous blogs, we offered a view that the opportunity remains for a fraudster to take advantage of the OIC process and there is sufficient financial incentive for claimants and those enabling claims, to make it worthwhile.

That view has not changed and is starting to grow roots, especially since the appeals in Rabat and Briggs (discussed in this blog), mean that financial rewards are greater.

This is in the context of the current cost of living crisis (discussed in this blog), influencing fraudulent behaviours.

All of this emphasises the importance of a refined investigation process, with a degree of automation, to identify fraudulent claims as early as possible in a claim lifecycle.

Looking further down the line, the OIC’s two-year anniversary may have some further significance as whiplash injuries with a duration exceeding two years are excluded from the OIC. It will be interesting to see if compensators will shortly see a flurry of those claims and if some may be late notified, or deliberately incubated by those enabling the claim.

Early fraud detection, prompt investigation and evidenced challenge will all be more vital than ever given the short timescales compensators have to respond to a fraudulent claim and the wording of the rules.

Kennedys’ Official Injury Claim: A Practitioner’s Guide First Edition