PI reform: Make rehabilitation code compulsory

Making the industry-backed rehabilitation code compulsory would address concerns about fraud, a leading claimant solicitor has argued, as well as protecting injured people from ‘drastic’ reforms ‘hidden’ away in the Ministry of Justice’s whiplash consultation.

Since the publication of the soft-tissue injury consultation, lawyers have focused on the potential impact an increase in the small claims limit and restriction or removal of damages would have on claimants.

However, the MoJ is also asking for views on measures to reduce fraud in rehabilitation and cut financial links between solicitors and rehabilitation providers. This is despite the consultation paper only citing concerns raised ‘by a number of sources’ and ‘anecdotal evidence’.

The options for reform include requiring claimants with low-value claims to fund rehabilitation costs themselves, rather than having them paid by an insurer. Lawyers fear this could result in claimants not seeking help, with injuries persisting for longer than necessary. There is also a worry that claimants may turn to the NHS for treatment at the expense of the taxpayer.

The rehabilitation code, which is periodically reviewed by a working group that includes the International Underwriting Association of London, the Association of British Insurers, lawyers, care providers, and the NHS, receives no mention in the consultation paper, much to the disappointment of Amanda Stevens, group head of legal practice at Hudgells and a prime mover behind the code.

‘It’s almost as if the rehabilitation aspect of the consultation is an afterthought hidden away at the back of the consultation,’ the former APIL president told Solicitors Journal. ‘All sides of the personal injury industry have co-operated to create a way of delivering rehabilitation that works for the injured person first and foremost, but also the paying party, lawyers, and providers.

‘The code, which was only revised last year, contains industry-agreed safeguards to ensure compensators are not forced into accepting a course of treatment or cost they are unhappy with, so I cannot understand why the Ministry of Justice is contemplating drastic reform to address an unspecified potential for fraud.’

However, there is ‘a simple and quick win here’, according to Stevens. ‘While the Civil Procedure Rules recommend the rehabilitation code, its use remains voluntary. Making the code a compulsory part of the claims process will ensure that best practice is adhered to by all, without the need for the Ministry of Justice to take risks with the recovery of claimants from their injuries.’

A rise in the small claims limit is expected to impact 140,000 non-whiplash related cases, according to National Accident Helpline, while figures from the Department for Work and Pension’s compensation recovery unit suggest that 800,000 cases in total will be affected, including 83 per cent of public liability and 78 per cent of employers’ liability claims.

In an exclusive interview with Solicitors Journal, the president of the Law Society, Robert Bourns, said Chancery Lane remains hopeful the scope of the reforms can be narrowed. Lawyers have until 6 January to respond to the consultation.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD