Government changes to the way victims of road traffic accidents (RTAs) are compensated will result in most injured children losing their legal rights to seek redress, according to the Association of Consumer Support Organisations (ACSO).
A flaw in the 2018 Civil Liability Act means almost all children and incapacitated people (‘protected parties’, in legal jargon) injured in RTAs will be barred from using the government’s new online portal to process their claim. They will also be prevented from using the existing portal for processing claims, and will not be able to seek legal help to fight their corner in court either.
Matthew Maxwell Scott, executive director of ACSO, said: “Unless the law is changed, minors and protected parties will be stranded in a civil justice no man’s land.
“Data from ACSO members who specialise in supporting RTA victims shows almost all injured children could be affected by this. While this must surely be the result of a mistake rather than ministerial design, it’s right to ask how this policy has survived a reform programme first announced almost four years ago and despite previous warnings that this risk existed.”
How has the problem arisen?
While children are being excluded from the increase in the ‘Small Claims Limit’ from £1,000 to £5,000 – meaning anyone who receives compensation for their injuries worth less than £5,000 cannot also recoup their legal costs from the at-fault party – they still face a new government-set tariff of damages for their injuries.
Under this, those with injuries lasting less than nine months – which represents around 85% of the tens of thousands of children for whom claims are made every year – will receive a maximum of £765 in compensation for any pain, suffering and loss of amenity, well below the current £1,000 Small Claims Limit. If this were increased to £2,000, this would include all claimants with injuries lasting up to 15 months, who would receive £1,820. This would then affect all but a tiny handful of injured children.
Mr Maxwell Scott said: “They can’t use the new portal, they can’t use the old portal and so the only option would be a traditional, paper-based process including a trip to court. However, caps on solicitors’ fees mean no lawyers would be able to able to take such cases on.
“We have written to Lord Keen, the minister responsible, and urged him to find a solution. The easiest way may be to amend the Civil Liability Act to exclude children and protected parties from the definition of “whiplash”. This would restore access to justice to tens of thousands of people who are almost always innocent passengers, although it would also help injured drivers aged 17 enjoy the same rights as those aged 18 or more.”
His concerns were echoed by Ellie Reeves MP, a member of the Justice Select Committee, which has also warned about the effect of the government’s proposed changes. She said: “Ministers have failed to think through the impact of this legislation, and the result is that tens of thousands of injured children and protected parties will be denied access to justice, as they will be unable to gain redress for their injuries following a road traffic accident.
“I call on ministers to take urgent action in order to ensure that children, protected parties and their families can have confidence that the government will protect their interests and ensure they continue to receive appropriate care and attention in the eyes of the law.”
Mr Maxwell Scott said the issue was only one of the serious problems concerning the government’s new portal, whose planned launch date of April 2020 is in doubt. The portal, which is being funded by the insurance industry, is meant to enable injured people to process minor RTA injury claims online.
He said: “We support any measures that will make it simpler for injured people to receive justice, and look forward to any resulting savings being passed on to customers. But nobody wants these savings to be made by removing rights from children. As with most things in life, this smacks of cock-up, not conspiracy. Thankfully the solution is straightforward and once applied the Ministry of Justice can focus on its other challenges.”