Faster and free - Your clients’ right to medical records under GDPR?

The introduction of the General Data Protection Regulation (GDPR) back in May generated a lot of uncertainty and work for businesses but created clear benefits for us all as individual “data subjects”. One up-side that went largely unnoticed is the right for clinical negligence claimants to have free access to their medical records.

Before this summer, even just the mention of GDPR might be met with groans from colleagues tired of hearing about this important but inevitably complex piece of legislation that all of us in any sort of business had to get our heads around, to some extent.

However, one specific aspect that has been of particular interest to all of us who work on behalf of people who have been harmed by medical malpractice, is the impact that the Regulation has had on accessing a client’s medical records.

The right to see the information that medical professionals have recorded about us isn’t new, of course. Such rights were certainly codified under GDPR’s predecessor the Data Protection Act in 1998 and, to a limited extent, the Access to Medical Reports Act back in 1988.

Two key aspects of GDPR have already had a significant impact on how such matters are progressed. First, the regulation has reduced the amount of time that an organisation has to respond to a subject access request (SAR) from 40 to 30 calendar days, speeding up the process of assessing a claim which should be ultimately beneficial for all parties.

Second, and perhaps more important, has been GDPRs provision that organisations are no longer permitted to charge an administration fee for responding to a SAR, in most instances. As well as making it easier for prospective clinical negligence clients to get hold of their medical records before a specialist solicitor assesses the merits of their case, this also has the effect of speeding up the claims process. 

These implications of GDPR are not entirely uncontentious and there has been some resistance, particularly for some smaller medical organisations such as GP surgeries, claiming to be overwhelmed by the demand to review large, historic medical files in order to redact data about any third parties who may not have consented to the release of any information about them.

There remains some uncertainty around precisely where such responsibilities fall but, on the whole, GDPR appears to have supplied a rare improvement for claimants trying to assert their legal rights in what are often the most difficult of circumstances.

While surveying its members on the impact of such requests, the BMA has produced some useful guidance for the medical profession about GDPR, particularly its FAQs related to SARs.

Like all legislation, there are clearly some wrinkles that still need to be ironed out. Nonetheless, anything that speeds up the lengthy process of seeking redress for injury caused by clinical negligence can only be a good thing, for all parties involved.

Covered: Health & Safety Executive Fees for Intervention

The inclusion of cover that pays Health & Safety Executive Fees for Intervention (FFI) has attracted positive feedback following the relaunch of our commercial products in the Spring. Here’s some further information about FFI that’s aimed at helping agents explain what the new cover is and how enhances the value of the products. 

Background

• Fee for Intervention (FFI) is a “cost recovery scheme” operated by the Health & Safety Executive (HSE). Under the Health and Safety (Fees) Regulations 2012.    
• Under the Health and Safety (Fees) Regulations 2012, workplaces in ‘material breach’ of health and safety laws are liable for recovery of the HSE’s costs for any inspection, investigation and enforcement action that is undertaken. A ‘material breach’ occurs when the HSE issues a notification of contravention, an improvement or prohibition notice, or a prosecution.
• When criminal proceedings are started, FFI cease and criminal prosecution costs apply. (Note - prosecution costs are not covered by LEI, but the cost of legal representation is).
• From October 1, 2012, the HSE have been able to recover the costs of its interventions from businesses found to be in material breach of the law, even in the absence of a prosecution.
• If the HSE intervenes they are under a legal duty to recover costs in all cases where there is (i) a material breach of health and safety law and (ii) a requirement to rectify the breach is made in writing.
• There does not have to be an incident or prosecution to trigger such HSE involvement

Scope of FFI 

Sectors regulated by the HSE include: factories, mines, schools, fairgrounds, nursing homes, government premises, dentists and doctors’ surgeries. (Other occupations are regulated by  local authorities which do not operate a fee regime).

FFI applies to public and limited companies, partnerships, the Crown and public bodies, and to self-employed people.

It does not apply to:

• Self-employed people who only put themselves at risk
• Employees (Partners are not employees) 
• Work where another HSE fee is already payable (for some or all of that work), e.g. under the Control of Major Accident Hazards Regulations 1999

Other organisations that enforce health and safety law, such as the police or local authorities, will not be able to recover their costs under FFI.

FFI Charges 

Inspection with no action taken: No costs will be recovered
Inspection resulting in an email or letter: £750
Inspection resulting in a notice being issued: £1500

Full investigation: Ranges from approximately £750 through to several thousands of pounds.

HSE will invoice the business and expect payment within 30 days. A complaints process is available allowing businesses to bring a complaint about an invoice and HSE will explain the process when a charge is levied.

ARAG’s position

In our view, FFI are not fines and they have not been introduced as a civil penalty - but solely to support Government policy which requires that service users should pay for the costs of the services they use. HSE policy guidance makes it clear that the purpose of FFI is to recoup costs, and of course exposure to FFI may encourage good H & S practice. The law does not prohibit the use of insurance as a funding mechanism.

FFI could be considered similar to an order for opponents’ costs in a civil case, but the charges relate to internal admin, rather than legal costs incurred. Including indemnity for FFI for commercial policyholders completes a ring of protection by extending indemnity that has always been available for legal costs to appeal H & S enforcements notices, and to defend prosecutions.   

Since data has become available that allowed us to calculate the risk, we were pleased to add FFI cover as part of the May 2018 relaunch of commercial products. 

Notifying claims

We cannot settle FFI invoices until they have been raised, but policyholders should tell us about H & S activity as soon as they are aware that the H & S Exec has identified non-compliance that will incur FFI charges. We may also be dealing with a claim to appeal against an improvement or prohibition notice that relates to the intervention that has resulted in liability for FFI. If that is the case, customers should quote the reference of any claim that relates to the same event. FFI invoices should be sent to us promptly for payment.  

Supporting Our Superhero Brokers

For a lot of us, learning is something we associate with our younger years and school, college, sixth form or university. Our later years are traditionally just for work.

Recently though this has been changing. More and more people are seeking out new skills and information, both to stay ahead in their careers and exercise their minds. The NHS advises adults continue to learn for their entire lives to keep up their mental wellbeing.

Continued professional learning and mental wellbeing  are a huge focus for us as a business. This year we've been working on something to mirror what we are doing internally and offer our business partners the same opportunity to learn.



To do this we're launching a completely free online training platform. This platform is designed to be a simple, easy to use way to get you intimately familiar with our products and services. It's available on your desktop just through your web browser, or on any iPhone, iPad or Android device using the EduMe app. You can see a sample of what the platform looks like on the right.

Our first module is an introduction to legal expenses insurance, then there is a specific module to help you get to grips with our recently relaunched Essential Business Legal.

The training platform has been tested and trialled both internally at ARAG and externally with some of our business partners to very positive feedback. It could even qualify towards the continual professional development (CPD) hours you need for this year, to find out if it does speak to your supervisor or compliance team.

To get started with the ARAG training platform all you need to do is click here. You'll need to sign up with your email and a password, and don't worry we won't be using your data for any marketing.

It's completely free and we'll be adding new modules on other products and services in the future so you might want to bookmark the site so you can check back.

A judge has ruled that a business that acted on behalf of a landlord to evict a tenant “crossed the line” in carrying out regulated legal services that only qualified solicitors are permitted to provide. Here’s a link to the full story which appeared on Litigation Future’s website: 

https://www.legalfutures.co.uk/latest-news/unregulated-eviction-service-crossed-line-into-litigation

It’s easy to see how landlords are tempted to use services such as “Remove a tenant” as an alternative to representing themselves, or paying for solicitor representation in legal proceedings. Not only did “Remove a tenant” break the law, the legal notice that they issued to repossess the property was faulty. The landlord had to go back to court to proceed with their claim using alternative grounds to repossess their property.

Legal expenses insurance for landlords provides a helpline to talk through correctly issuing a landlord’s notice to repossess and ARAG’s Landlord Legal Solutions policy allows your landlord clients to download the notices and a covering letter for free from our legal services website. If a tenant fails to leave on expiry of the notice, the policy pays legal costs for a regulated law firm to act for the insured.

According from their website “Remove a tenant” charge from £50 to issue a repossession notice, and the cost of preparing for a court hearing and representation is charged from £250 (+VAT) http://www.removeatenant.co.uk/legal-services/ - this is much more than the cost of Landlord’s Legal Solutions over the average term of a tenancy. Surely peace of mind and confidence that claims will be dealt with properly is surely an attractive prospect for customers who may be reluctant to opt in to legal expenses? I’ll leave you to guess the moral of this story...

Have you and your clients registered with our Business Legal services website to receive free monthly business law bulletins?

This month’s bulletin is out. Subscribers can read about “last straw” resignations – which can expose businesses to claims for unfair dismissal, get practical advice and brush up on disability discrimination law and there’s also an item on planning law.

To receive our monthly business law bulletins, you will need to opt-in when prompted at the time you register to use the site for the first time. Registration is simple and will give you/your clients access to the law guide and a comprehensive range of sophisticated legal documents which can be customised to meet circumstances. The result is far superior to using flat template documents that have to be amended to meet business needs and our documents can be relied upon in court without seeking further legal guidance.

If you’ve already registered to use the Business Legal Services web site but didn’t opt-in to receive our business bulletins, you can change your preferences by clicking through to “My Account”.

D-ARAG-ON RACERS!

On Sunday the 10th of June our team of Viking warriors, the D-ARAG-ON RACERS, took part in the Bristol Dragon Boat Festival. This festival is an annual event organised by the Rotary Club of Bristol in order to raise money for Caring in Bristol, a charity to benefit the homeless.

After weeks of training an elite team of 20 D-ARAG-ONS took to the high seas (well, the Bristol harbour) and raced against 29 other teams to see who could cover 200m in as short a time as possible. We had three attempts at this and got better with every run. Our final round we were over 5 seconds faster than the first!

Whilst we came 27^th out of 30 we still had a great time on the day, raising money for Caring in Bristol and our charity of the year Focus. We managed to raise £1,182.50 (including Gift Aid) in advance and even more on the day in cash donations from fans and supporters.

We also had an ARAG yellow gazebo set up by the water all day with our Head of Sales, Andy Talbot, flipping burgers for hours on end to keep the hungry D-ARAG-ONS and their friends and family fuelled up for the races.

It was a really great day, with fantastic weather and a lot of fun had by all. And we were watching the techniques of the best teams, so we’ll do much better next time!

If you'd like to donate towards this great cause you can do so by clicking here to go to our Virgin Money Giving page.

Click here to watch the team warming up!

LEI : Are you making the most of this opportunity to differentiate yourself?

Whether it is serving the needs of commercial, motor or household customers, legal expenses
insurance (LEI) is now a key part of the business proposition for many insurance brokers.
The cover can be sold on a stand-alone basis, but in most cases is offered alongside household,
motor, commercial and landlords’ policies and is an affordable extension that typically includes
indemnity against the cost of common legal disputes as well as advice helplines and access to
online legal documents.

A legal matter can surface unexpectedly and there can be enormous reassurance in having
taken out LEI, often on the advice of a broker. But, given that legal risks change, are there
sufficient levels of understanding among brokers? To gain greater understanding of the sector,
Insurance Post and specialist LEI provider ARAG have recently conducted a major research
project with brokers to find out more about this market.

Certainly, without cover, many clients could find it more difficult to meet potentially high legal
costs, and indeed, even know where to find a solicitor with relevant experience. However, LEI
takes pressures away and is typically available at affordable prices, and can be tailored to meet
individual needs.

Here today, gone tomorrow

Following last month’s news of the collapse of CBL Insurance and the subsequent failure of Denmark’s Alpha Insurance, Head of Sales Andy Talbot, considers where the next legal expenses underwriting failure may occur.

In 2016, it was AU Insurance Services. Last summer, it was Elite Insurance Company. Already in 2018, New Zealand’s CBL Insurance Limited has collapsed leaving Alpha Insurance A/S in solvent liquidation and run-off.

Often, it seems, these failures impacting the legal expenses sector get associated with the ATE market, somehow remote from the majority of brokers. But most legal expenses underwriters, wherever they are based, will have feet in both ATE and BTE camps.

Alpha is a case in point, having underwritten numerous motor legal protection and other policies for brokers around the country, as well as some ATE business.

The precise causes and circumstances of these failures (and the several others that have occurred in between them) may be very different, but they have all left brokers, other intermediaries and their clients in the lurch.

In most cases, clients are unlikely to be impacted if a change of underwriter is forced on their insurance provider. Some consolation for brokers who have to go back to the market, find a new underwriter or product and undertake all the subsequent work that such failures inevitably trigger. 

What is troubling is the frequency with which such failures seem to be occurring.

The legal expenses insurance market has not been an easy one in recent years. Increased regulation, LASPO, numerous other legislative changes and even the succession of IPT rate increases have all put pressure on smaller LEI providers.

Some underwriters have also been more vulnerable to the impact of continued uncertainty over EEA passporting rules, resulting from the Brexit vote, and there are likely to be more legislative changes to come. Proposals to change the way “whiplash” claims are handled and raise small claims court limits could seriously undermine the business models of some LEI providers and trouble their underwriters.

Brokers have good reason to be cautious. Alpha Insurance is only the latest underwriter to exit the legal expenses market. It is highly unlikely to be the last.

How and when the next legal expenses underwriter will leave the market is inevitably hard to predict, but brokers owe it to themselves at least, to minimise the risk of finding themselves in a similar situation over the coming months.

Very few law firms will have the knowledge of insurance markets that most brokers do, so it may be hard for them to understand and calculate the risk. Brokers, on the other hand, should be much more adept at asking the right sort of questions, not just of their immediate provider but the ultimate underwriter too.

Who is this policy underwritten by? Where are they based? Who regulates them and what sort of scrutiny do they come under? Are they independently rated by a credible agency? How much experience do they have writing this sort of business?

Thankfully, it seems that Alpha’s departure and run-off will, like Elite’s before it, be orderly. The underwriter appears solvent and seems capable of meeting its obligations.

Next time, we may not be so lucky.

Care Providers & the National Minimum Wage

This blog is aimed at Care Provider Legal Solutions Policyholders and agents who specialise in the care sector. I would like to share with you a Government briefing document that summarises recent developments relating to payment of the national minimum wage for sleep-in care duties. Here is a link to the document and my summary is below. 

Back ground

The Royal Mencap Society v Tomlinson-Blake case considered whether sleeping during a shift should be deemed as “work” for the purpose of applying National Minimum Wage (NMW) regulations.

In April 2017 the Employment Appeal Tribunal handed down judgment which, held that, in some cases, carers who are required to be present throughout the night will be entitled to the NMW whether awake or asleep. The briefing document summarises this case and others. 

Consequences of breaching NMW

To obtain backdated wages if underpaid, an employee can take a claim to the employment tribunal or the country court. If a worker is successful in his NMW claim, he could be owed up to six years’ back pay. HMRC enforces the NMW on behalf of the Department for Business, Energy and Industrial Strategy (BEIS). If HMRC finds that an employer has underpaid worker(s), it will fine the employer, require it to provide back pay to affected workers, and name and shame them via a press release.

Relief for social care employers

Given the potential impact on the social care sector the HMRC has, until 31 March 2019, modified its approach to enforcement by launching the Social Care Compliance Scheme (SCCS). Subject to certain criteria, employers who have opted into the scheme can have financial penalties in relation to under payment of sleep-in shifts prior to 26 July 2017 waived and will escape “public naming and shaming”.  Details of the SCCS scheme are here. https://www.gov.uk/guidance/tell-hmrc-if-youve-underpaid-national-minimum-wage-in-the-social-care-sector
Nothing in the scheme prevents individual workers taking their own legal action (whether in the Employment Tribunal or Court) to recover arrears owing to them.

Staying compliant

No single factor is determinative and the weight each factor carries (if any) will vary according to the facts of the particular case however a key point is that “where specific hours at a particular place are required, upon the pain of discipline if they are not spent at that place, and the worker is at the disposal of the employer during that period, it will normally constitute time work”.
The briefing note sets out potentially relevant factors in determining whether a person is working by being present. Full enforcement guidance is here.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656568/nmw-enforcement-beis_-_policy_doc_-_full_vFINAL__3_.pdf

Scottish Parliament consults on raising court fees

Just like the star of Bethlehem, legal costs are in the ascent in Scotland.

The Scottish Government is consulting on raising court fees for Scottish jurisdiction. Its objective is to ensure that the fees collected are sufficient to pay for running its courts.  A “demand-led” remission scheme is available which is intended to protect access to justice.

https://consult.gov.scot/courts/scottish-court-fees-2018-2021/user_uploads/00526265-2.pdf

Court fees have generally been reviewed every three years, with the last full round being implemented in 2015.

In 2016 the Scottish Government concluded that it was necessary to move further towards full-cost recovery in the courts, which has been the policy of the current and previous governments for some time. The Court Fees (Miscellaneous Amendments) (Scotland) Order 2016 came into force on 28 November 2016.  This order raised the level of fees significantly, although certain fees, such as those in the Sheriff Personal Injury Court, were frozen in order to protect access to justice.  The overall effect was intended to bring the level of fees to the point at which they cover the costs of the civil justice system. 

Inflationary pressures in the wider economy have driven the Scottish Government to adhere to the original three yearly review to set fees for the three- year period commencing on 1 April 2018 (by which point it will be 17 months since the last fees increase).

Unlike the position in England & Wales, where a policy of enhanced court fees has developed, it is not intended that court fees should move to a point where a profit is made (that could be used to subsidise other parts of the justice system).

A separate but connected development is the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill currently before the Scottish Parliament. The Scottish Government state that this will make the costs of civil action more predictable by increasing the funding options for pursuers of civil actions through greater availability of “no win, no fee” success fee agreements.   

 It is proposed that qualified one-way cost-shifting should be introduced for personal injury claims and this will also protect pursuers from the risk of having to pay their opponent's costs in personal injury cases if the case is lost, provided they have acted properly (as in England & Wales). 

LEI ensures that personal injury claimants are able to keep their damages in full. Considered together these two developments support the premise that LEI will provide even better value than before for our policyholders in Scotland.

Landlords Legal Solutions

By the way – a reminder that we have updated our Landlords policy to reflect the new landlord and tenant law in Scotland.

With all best wishes for the festive season from the Product Development team at ARAG.

Getting Data Privacy Right

“Data protection… didn’t we just do that?”

Facebook founder Mark Zuckerberg was still in high school, two Stanford PhD students were in the process of founding Google and none of us had even heard of WiFi, let alone cloud computing, when the UK passed it’s most recent Data Protection Act.

So, it’s fair to say the legislation could do with a tune-up. The General Data Protection Regulation (GDPR) will supersede our 1998 Act and similar legislation in every other EU member state, and has been built to unify legislation and strengthen data protection for individuals throughout the EU.

What’s new?
There are new rights for data subjects; new responsibilities for businesses; a new principle: accountability; and much tougher penalties including compensation for data subjects and fines of up to €20 million (more for the very largest companies).

What do brokers need to know?
Far too much to cover here, but BIBA has produced extensive guidance, available online.

What about law firms?
Similarly, solicitors have a lot to be aware of, but the Law Society has created some excellent resources for the profession.

But, but… Brexit?
GDPR will be enforced in the UK regardless of Brexit. It is also expected that its requirements will continue here, whatever the terms of any Brexit deal.

How long have we got?
About 6 months. GDPR compliance must be achieved by May 25, 2018. That may still seem a way off , but we all know how long systems work can take.

Necessity is the mother of invention

Should you need proof that creativity is spurred on by adversity, look no further than the legal expenses sector. ARAG is rolling out new products, taking technology in new directions, and helping grow new business for our partners. All this, despite the challenges on both the political and legal landscapes.

Fee caps, whiplash reforms, increases in small claims levels plus Brexit, place special demands on our resources and business model. Because of this, we have already rebalanced our BTE and ATE portfolios and are able to actively seek new business from a variety of sources in both BTE and ATE sectors.

On the face of it, this is a complicated recipe with which to progress our second decade in the UK. However, nothing has changed in our philosophy of opening the doors to justice for everyone, whatever their financial status. The consistent accolades at awards ceremonies confirm our belief in the highest standards throughout the organisation: our by-words remain innovation, flexibility and service.

Elsewhere in this issue of the RAG we have a lot to say about the Insurance Distribution Directive, BTE developments and the need for employers to reconsider their commercial policies (CLP) now that employment tribunal fees have been scrapped. CLP has proved an enormous growth area, along with assistance services, and we aim to keep all BTE products affordable whilst providing top level cover and service. ARAG will meet the challenges of the market with solutions that benefit all our partners and policyholders.

Upcoming test cases will untangle some of the current impasse over clinical negligence settlements and we will ease some of the current solicitor ‘malaise’ through a new advanced disbursement product, aiding their cash flow.

Housing disrepair continues its strong growth and we are looking to more debt recovery and professional negligence for matrimonial business. Closer ties with solicitors through the pre-paid disbursement product will help introduce ARAG as the ideal partner for employers’ liability and motor business too. We already have our Practice Policy that covers all ATE cases in a firm.

I am pleased to say that we shall continue pursuing clinical negligence claims at the current level. And aft er the hysteria over discount rates earlier this year, insurers and government are getting closer to a more balanced view with a final figure that looks like it will be fairer to claimants.

Why do you need High Net Worth cover?

Most High Net Worth clients are looking for that bit extra from their insurance.
At ARAG we offer comprehensive bespoke cover, higher limits of indemnity, backed by high quality legal advice and partner-led claims handling from solicitors who are experts in their field.

We provide enhanced family, home emergency and motor breakdown products, ensuring our cover is the perfect choice for your client’s needs.

 In summary, we offer:

• 24/7 HNW legal advice line
• flexible, tailored cover 
• pre-vetted, HNW preferred solicitors
• excellent customer service 
• account management
• award winning products & services

Why choose ARAG?

• Faster initial responses to claims notification and quicker initial assessment of claim 
  - 2 day service standard
• Claim handled by ARAG Senior Claims Handler
• Solicitor will be specialist in claim area
• Partner led claims handling at solicitors
• Enhanced service standards  with solicitor throughout claim

For more information please call us on 0117 307 2278.

BIBA Conference & Exhibition 2018

Visit us on Stand B38!

We are delighted to have secured stand B38 at the BIBA Conference & Exhibition 2018, taking place on the 16th & 17th May at Manchester Central.

As well as a great opportunity to showcase our range of legal expenses and assistance products, it’s the perfect time to catch up, over an ARAG coffee, with new and familiar faces. 

Over the two days, our sales team and senior managers will be on hand to discuss how our flexible and innovative solutions can work for you and your customers. However, with over six months to go until the big event, if you would like get in touch with us before then please email enquiries@arag.co.uk.

Click here to register for the event. 

Follow us on Twitter @ARAG_UK and keep updated with all our #BIBA2018 news!

Further discount applied

Last week’s announcement of a new process for setting the discount rate applied to serious injury compensation did not come as quite the surprise that the sudden hike in March did, and the proposals seem targeted on the middle ground between insurers and those representing severely injured accident victims. ARAG’s Product Development Manager Lesley Attu takes a closer look at the announcement.

Liz Truss sent the insurance industry into a tailspin a little over six months ago, when she announced a change to the ‘discount rate” from 2.5% to -0.75%. Share prices dropped, premiums were hiked and the insurers’ PR machines went into somewhat unseemly overdrive, demanding that the ‘crazy’ decision to ensure that people with catastrophic injuries should be adequately compensated, be urgently reviewed.

It may not have come about quite as quickly as some would have liked, but the MoJ’s proposals for a new mechanism to set the discount rate seem designed to strike a compromise. If Lord Chancellor David Liddington’s prediction that the new system would currently generate a rate between 0% and 1%, then it could fall very close to the mid-point between the -0.75% that so outraged the ABI and the 2.5% that it lobbied and fought so hard and for so long to preserve.

The MoJ says it will maintain a 100% compensation rule so that claimants should receive full compensation for the loss caused by the wrongful injury, and not any more, nor any less. It has accepted that the existing legislation governing how the rate is set is unrealistic and could result in awards that significantly overcompensate claimants.

The consequence, it claims, is that the NHS and other public sector bodies can be adversely affected and insurance premiums are inflated.

The MoJ has also acknowledged that injury victims are likely to be more risk averse than ordinary, prudent investors but that “low risk” rather than “very low risk” investments would represent a fairer benchmark. 

Primary legislation is necessary and, once it is passed, the discount rate will be set by the Lord Chancellor, who will take advice from a panel of independent experts. The panel will be chaired by the Government Actuary and will include four other members who will bring experience as an actuary, an investment manager, an economist and a consumer investments expert. HM Treasury will continue to be a statutory consultee for each review, which will take place every three years.

The panel will still be able to set different rates for different types of case, but the principles behind how the rate is set will be set out in the legislation.

So far, the Lord Chancellor’s news has been received more enthusiastically by the insurance industry (and its investors) than those representing injured victims, but only time will tell if the new rate setting mechanism will prove fairer or not.

Unrepresented struggle with employment tribunals

I was surprised by the harsh line taken by the employment tribunal and employment appeal tribunal in a case summary prepared by James English of Hempson’s Solicitors and circulated by barrister Daniel Barnett in his excellent employment law bulletin.

The Claimant brought several claims, including constructive dismissal, against his former employer.

Perhaps he didn’t have legal expenses insurance because he initially contacted ACAS for Early Conciliation without any legal representation.  The claimant named a director of the business as the party he wished to make his claim against (the Respondent). It seems that in this case matters could not be resolved through ACAS Early Conciliation and the claimant instructed solicitors to prepare his Claim Form to pursue the matter at tribunal.

The solicitors correctly named the claimant’s ex-employer, 'SNA Transport Limited' as Respondent.  The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director's name was a "minor error", which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application taking the view that confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant's application. It said that a two stage test should be applied. Firstly, was it a minor error? If not, the claim would be rejected. Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal's Judgment, the Claimant's appeal was dismissed.

I’m disappointed about this decision as it’s an easy mistake for someone who is acting without legal representation to make. The case does however underpin the value of legal expenses insurance for ACAS Early Conciliation.  Although the system was designed with the intention that employees should negotiate without legal assistance it is not free of obstacles. If this claimant had taken out LEI, the error in completing the ACAS form would have been avoided, allowing him to pursue his action at tribunal. Additionally, the insurance would have covered the Tribunal fees and legal costs incurred.

It’s been a busy couple of weeks for our ATE Sales team – Mike Knight, ATE Sales Manager

First up was AvMA’s Annual Clinical Negligence Conference followed, a week later, by the APIL Advanced Brain and Spinal Cord Conference. Both exhibitions are regularly in our events calendar as they provide an invaluable opportunity for us to connect with new prospects and re-connect with our current partners. 

Both events were extremely busy for us, so apologies to anyone who didn’t get the chance to speak to us on our stands, please do contact us below if you would like a chat! Even though each event has a different demographic of delegates, our message is always the same.

For more than a decade, ARAG has led the way in delivering innovative after-the-event insurance solutions to law firms throughout the country. Many will talk of ‘access to justice’, but ARAG is still driven by its founding principle, more than 80 years old, that “…every person should be able to assert their legal rights, not just those who can afford it.”

Nowhere is this principle more important than in our mission to ensure justice continues to be accessible to those who have sustained severe and sometimes catastrophic injuries. At a time when claimant firms and their clients have been confronted with successive challenges, seemingly perpetual reform and shifting regulatory and market conditions, ARAG has stood firm, developing and adapting products to satisfy increasingly demanding requirements, especially in the personal injury and clinical negligence sectors.

The design of our Recourse range of after-the-event solutions has always focused on simplicity. Products that a solicitor can easily explain and a client can readily understand; products free from complex underwriting mechanisms and onerous conditions; products, put simply, that work.

As a result, we are regularly shortlisted for a string of awards, from Personal Injury Insurance Provider of the Year to Legal Expenses Team of the Year, ARAG has been recognised as the outstanding provider of legal expenses insurance solutions for law firms and their clients.

I always enjoy attending events like those put on by AvMA and APIL as they offer a perfect mix of business and networking. Then again, maybe that’s why I have now decided to take on the challenge of Dry July!

The idea of going alcohol free during a summer month of BBQ’s, sporting events and corporate entertaining is not going to be easy but it is for a great cause and a charity close to our hearts at ARAG; FOCUS. The motivation to stay off the alcohol and enjoy a range of non-alcoholic beverages throughout the month comes from the knowledge that any donations received will enable the charity to invest in projects that make hospitals better. Their aim is to create a comfortable and positive environment for all their patients and staff, investing in improvements to buildings, state of the art equipment and extra care over and above that provided by the NHS. If you would like to show your support, please click here. 

Going forward, we are supporting the St John’s Chamber and AvMA Charity Dinner in Bristol on the 21^st September and exhibiting at the APIL Clinical Negligence Conference in Brighton on the 5^th and 6^th of October – I hope to see you there!

Contact details:

Mike Knight, ATE Account Manager

Email: mike.knight@arag.co.uk

Mail: 9 Whiteladies Road, Clifton, Bristol, BS8 1NN

Mobile: 07795 636391

What the whiplash proposals mean for Legal Expenses Insurance - explained by Andy Talbot, Head of Sales at ARAG plc.

Those outside the legal and insurance worlds would be forgiven for knowing nothing about the government’s plans to reform the claims process. Whisked through ‘consultation’ in just a few weeks, the MoJ’s plans went from launch in mid-November to inclusion in the Prison and Courts Bill, published on February 23rd 2017.

The changes will increase the Small Claims Court limit for all motor personal injury claims to £5,000 and double the limit for all other injuries to £2,000, as well as introducing low, fixed payments for all but the most serious ‘whiplash’ injuries. They represent some fundamental changes to the justice system and are likely to have a major impact on injured parties, the courts and some law firms, but what do they mean for the legal expenses sector?

Andy Talbot, Head of Sales
Successive governments have backed LEI as a means of delivering access to justice, as legal aid has been withdrawn, especially since Lord Justice Jackson floated the idea, back in 2010. But I’m not sure politicians fully understand how it works.
The problem is always that those who struggle to access justice are less likely to have a legal expenses insurance policy.
They are the same people who will suffer most from these changes.

An increase in the Small Claims Court limit has been talked about for years, and is probably overdue. Doubling it will have some impact on non-motor claims costs but it shouldn’t be too dramatic. This is where most of ARAG’s BTE business is, so we’ll be watching with interest and keeping customers informed as the change approaches.

The impact on the market for motor legal protection will be much more significant. It’s estimated that the changes will bring about 90% of motor claims into the Small Claims Court jurisdiction, where costs are not recoverable. These costs will inevitably increase motor legal expenses insurance premiums.

Whatever the rights and wrongs of the status quo, it is difficult to overstate how significantly the reform will disadvantage people genuinely injured in accidents. They will have to trust the third-party insurer to admit liability as, even with the legal knowledge to do so, the cost of challenging an insurer’s denial would quickly exceed the potential award.

This will obviously make motor legal protection much more valuable, but also a bit more expensive, as the costs of challenging a contested claim will no longer be recoverable. Whether consumers will appreciate the increased value that LEI policies offer, because there will be no other means to pursue a claim, remains to be seen.

It is at times like these that ARAG’s focus on service and innovation serves us well. Whatever the finer detail of the reforms and however consumers respond, I know that my colleagues in our Product Development team will build the most attractive proposition available, that will add great value to our partners’ products.

As Head of Sales, I must admit to being slightly relieved that ARAG doesn’t have too many eggs in the motor LEI basket, as it is shaken up, yet again. On the other hand, I’m also excited at the opportunity the latest reform will present. Throughout the world, ARAG is still very much driven by its founding principle of providing affordable access to justice, and equally committed to our belief that investment in innovation and offering the very best service, is the most effective way of achieving that.