Claims Management Companies

David Mowat Excerpts

Thursday 8th November 2012 Westminster Hall

[Jonathan Evans]

I not only agree with that point but think that it makes the case for taking much more severe action. The flow of PPI cases will undoubtedly work its way through the system and people will look for other sources of revenue, so by the time we catch up, I fear that the horse will have bolted. For that reason, we must have firm regulation.

The problem is that there is confusion about who regulates this field. We have a claims management regulator within the Ministry of Justice, but that was set up to approve, as it were, or otherwise, people engaged in the business. It has been responsible for the industry increasing from 40 companies to 3,007, according to its last annual report. As my hon. Friend the Member for Thurrock indicated, the regulator’s powers are limited, which is why the Government have been rightly looking at how they can firm up the process, including introducing an independent complaints process and placing the responsibility for it with the legal ombudsman. The chief ombudsman, Adam Sampson, also appeared before the all-party group. Hon. Members who were present will know that he is enthusiastically looking forward to looking at such complaints.

[David Mowat (Warrington South) (Con)]

My hon. Friend is making good points about regulatory failure and the Ministry of Justice “kitemark”. A large part of this shoddy industry is in effect administered by solicitors, who are supposed to be regulated by the Law Society. The Government have given it particular powers, including monopoly powers, so it should be in a good position. Does he agree that the Law Society has failed to manage its people effectively in respect of this shoddy industry?

[Jonathan Evans]

My hon. Friend puts me in a difficult position. Although I am no longer a member of the Law Society, I am a solicitor of the Supreme Court, albeit no longer in practice. As I will go on to say, people in this area should be regulated. His complaint about the effectiveness of the regulation in relation to the legal profession is one thing; the difficulty about claims management companies is that, for the most part, many people introducing the business are not regulated at all.

I move on to the point that I raised with the hon. Member for Makerfield, whose support I am grateful for.

--- Later in debate ---

[David Mowat]

I did not realise that my hon. Friend was a member of the Law Society. I apologise for putting him on the spot.

[Jonathan Evans]

No, I am a non-practising solicitor.

[David Mowat]

My hon. Friend makes the point that some regulation is better than none whatever, but I am not sure that that is true: if regulation is so weak and ineffective and the public think that responsible, professional people are acting in this shoddy way, I simply do not think that that is good enough.

[Jonathan Evans]

I am not sure that the legal profession figures as highly in the activities of claims management companies as it might in other cases. For instance, in the context of the position of solicitors in injury claims and such things, he and I may well have a more productive exchange, but I am not aware that they figure so heavily in the context of claims management companies.

I return to my earlier point, which I intend to develop. For cases to come through and claims to be made, a body of introductions has to be generated, which is done through texts and e-mails. The Minister in the Lords said that he had received a number of texts, and our e-mail accounts are full of such unregulated approaches from outside the United Kingdom. It is very difficult to know how on earth people can try to stem that flow of unsolicited approaches, without the removal of the financial incentive. The all-party group heard from a representative of the claims management companies, and I challenged him on that by suggesting that those companies accept batches of introductions that may well come through illegal routes. His response was, “Well, we are in a market. If we do not buy those introductions, somebody else will.”

This is an area in which I, as a Conservative, might favour regulation. Claims management companies putting forward such claims must not only be regulated by the Ministry of Justice, but should not take on claims introduced by those who are not regulated, for instance by a professional body or the Ministry of Justice. I am absolutely sure that the outcome of that would be no more need for the Information Commissioner. The texts would dry up, because people would not send them if there was no financial return. The reason why we have all the texts is, of course, because there is a return.

Consumers’ heads must be spinning with all this: we have the Ministry of Justice, the legal ombudsman, the Information Commissioner—we have talked about his responsibilities—and the Financial Ombudsman Service, to which all PPI claims have to go, as we know. I have looked at the various representations: The Government have now proposed a process whereby complaints go to the Legal Ombudsman, while the Association of British Insurers has suggested that they should go to the Financial Conduct Authority of the Financial Services Authority. I know that the hon. Member for Makerfield understands that wealth of complication. I will only say that if we are looking for effective regulation, I have much more faith in the FCA, which is being set up under Martin Wheatley. That would send a certain message, if I may use that expression, to the industry.

Let me turn to some areas where we need to see progress. The first is that, as has been mentioned by nearly every speaker, we should not have up-front fees. The Government are in a position to regulate on that, which would very swiftly remove one of the serious concerns raised by several colleagues. My hon. Friend the Member for Thurrock, whom I again congratulate on raising this important issue, gave a clear constituency example. The second is the introduction of a cooling-off period. That would clearly be helpful in the case that the hon. Member for Dumfries and Galloway (Mr Brown) talked about—he spoke earlier, but has now had to go elsewhere—and in others that have been cited in this debate.

One area that has not been mentioned, but which I believe would be appropriate, is the introduction of a sector-wide compensation scheme. Something that is not widely understood in the world of financial services is that a whole range of financial companies that are regulated within the United Kingdom maintain funds for paying to the Financial Services Compensation Scheme. In the past, I have criticised the scheme because the people who administer it like to suggest that the money it pays out is somehow provided by the Government. A former Chancellor of the Exchequer boasted about funds being made available through the scheme, which he had ensured were paid, as though that was central Government spending.

In reality, whether they are insurance companies, insurance brokers, bankers or financial intermediaries, all such companies, as a condition of their being regulated, have to take their place in the Financial Services Compensation Scheme, so that if someone goes bust, they can stand behind the liabilities of that individual and ensure that a fund of money is available in the scheme to meet such liabilities. One can imagine, in the context of what has happened in financial services in the past few years, that that is a real liability, to which people must give a lot of attention.

Yet an industry of claims management companies has developed. My hon. Friend the Member for Thurrock rightly indicated that, at £1 billion, its income is a massive understatement. She is right because, annually, it is likely to be two or three times that figure. Surely, we have the opportunity at the moment to ensure a sector-wide compensation scheme, so that people who want to get rich quick and disappear tomorrow are not in a position to do so, because a fund will have been created to meet the liabilities that they leave behind.

To return to the sourcing of introductions, which I mentioned earlier, it would be very simple to impose a requirement not only that all claims management companies must be regulated, but that they can accept introductions only from those that are similarly regulated.

Finally, we must see claims management companies conform to regulatory requirements. I return to the point made by the hon. Member for Makerfield about the Which? report, which I referred to earlier. We already have very clear rules in place, but 12 or 14 months ago, 60% of claims management companies were clearly ignoring them. On that basis, there must be a consequence—that is not only my view—about seeking redress: we should put such people out of business and, at the same time, ensure that they have the funds to meet any liabilities they may have to wronged individuals. My view is that it is quite right that those who have failed in financial services, be they bankers, insurers or insurance intermediaries, must compensate consumers. Here we have a real scandal, in which our constituents are today seeing up to 30% of their compensation being sliced away. In my view, action is urgently necessary by the Government, and I have great confidence in the Minister’s ability to tell us what that action will be.

--- Later in debate ---

[Mr Slaughter]

I am certainly happy to look at that. It is a constructive proposal that combats the sharp practice and cleverness of such firms on their own level, and that is not happening at the moment. I am afraid that those firms will always be one step ahead of the regulation unit. I hope the legal ombudsman will address that point. We need to look at these companies’ approach to advertisements, text messages and such things. I am somewhat at a loss as to why the Government have been reluctant to tackle this area more cogently. Again, I refer to a question that I asked in February, which is in the debate pack:

“How many claims management companies have had their authorisations revoked as a consequence of telephone or text message spamming since May 2010?”—[Official Report, 27 February 2012; Vol. 541, c. 75W.]

The answer is none, and yet we know that telephone or text message spamming is not only one of the most irritating ways of hooking clients in the first place but one of the most productive; clearly it is productive, or the companies would not use it.

The legal ombudsman makes the point that they should have a significant role to play in unsolicited contacts, whether it is cold-calling or text messaging, but it is not quite clear to me at the moment what that role will be. The legal ombudsman also raises another issue. Once a client is hooked and then effectively milked by the claims management company, how does one deal with enforcement if the company is to be brought to account but simply changes its name and directors, then disappears before appearing under a new guise? I ask the Minister to address those points and consider whether a more comprehensive legislative regime to counter abuses by claims management companies should be introduced.

My right hon. Friend the Member for Blackburn (Mr Straw) has done an extraordinary amount of work in this area and introduced a private Member’s Bill on it. When we were discussing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 last year and earlier this year, both in the main Chamber and in the other place we tabled a comprehensive series of amendments to deal with the type of abuses I have been describing. I understand that the Minister was not in her current role then, but I know she took an interest in the Act. I was at a loss to see why the Government were not happy to adopt—other than that they came from us—what were very stringent restrictions on unsolicited cold-calling and SMS texting, the regulation of claims management companies and other areas to do with data selling. They were primarily restrictions on the abuse of road traffic claims, but they equally apply to the mis-selling of financial products. It does not matter whose legislation it is: again, I advise the Government to go back and look at those restrictions.

There is a myth around that there is a whole industry, including lawyers and other practitioners, that is somehow encouraging the abuses of the system, but nothing could be further from the truth. I should say that I have had representations from the Association of Personal Injury Lawyers, the Bar Council, the Law Society, as well as from major solicitors’ firms dealing with claims on this subject. I urge the Minister, having recently taken on her new role, to listen to the voices in the claimant sector belonging to some of the best informed and most knowledgeable people, who are also very angry about the abuses that take place. Perhaps she should listen to those voices more and listen a little less to the Association of British Insurers and the rest of the insurance industry, whose fingers are all over the claims management industry. Many insurance companies own or co-own claims management companies, and many indulge in practices that are just as suspect in terms of third-party capture, and which manipulate the claimant market in that way. What I hope all Members wish to see is something that protects the consumer and allows genuine and honest claims to be made.

I was grateful to receive the various briefings for today’s debate—except possibly that from the ABI. After a nod towards claims management companies, it suddenly got on to the idea of the compensation culture again. I fear that, in their legislation so far, the Government have been seduced by that argument, despite all the evidence in their own reports and reports by the Better Regulation Task Force, Lord Young of Graffham and Professor Löfstedt. All those reports found that there may be a perception of a “compensation culture” in this country, but there is no reality, and what is needed is the regulation of abuse, not of honest claims.

The Government have pushed forward very enthusiastically in LASPO with a restriction on the ability of claimants with meritorious claims to bring their cases before the courts, across the whole area of civil litigation.

[David Mowat]

I am listening very carefully to what the shadow Minister is saying about compensation culture. To pick one issue, we appear to have a massively bigger incidence of whiplash than other European countries. What is his position on that situation; why does it arise?

[Mr Slaughter]

That is a good point. We have not spent a lot of time discussing whiplash today; I had thought that we might spend a little more. The situation is exactly the same: there is fraud in the area of whiplash claims, particularly soft tissue injury claims. The figures compiled by APIL show that 80% of sufferers of such injuries either report their symptoms accurately or underplay them. That means that 20% are perhaps not reporting their symptoms accurately or are exaggerating them. That puts things into perspective. I do not believe that a massive amount of fraud is going on, but a significant amount is going on and it needs to be tackled.

[Mr Slaughter]

Some of us may have qualifications in some areas, but I have to say that I have no medical qualification and I do not know whether the hon. Gentleman has one to add to his other distinguished qualifications. We will not resolve the issue of whiplash this afternoon, but to write off soft tissue injury and say that there is no such thing is taking matters too far the other way.

I will quote one other statistic. As we know, almost 30% of claims are encouraged by insurers. I have one or two examples here from constituents of mine who had minor road traffic accidents, and who then had their details sold on by their insurers. So we have insurance companies that—presumably to make a profit—either own or co-own claims management companies, and that are selling on details and engaging in third-party capture, which of course means they are paying out money without any medical evidence whatsoever.

I am not saying this is a black and white issue. I am saying, “Let us identify who the rogues are, crack down on them and not be distracted by them from our other purposes.”

[David Mowat]

We got into this discussion because of the point the shadow Minister was making about compensation culture. Of course nobody is minimising soft tissue injuries—that would be awful—but we seem to have five times as many of them as other countries in Europe. Surely that statistic should at least have given him pause for thought before he read out the brief from the APIL.

[Mr Slaughter]

As I always do, I read out briefs from everybody, even from the ABI; I have very catholic tastes in the sources I use. Also, I think I said that fraud in relation to road traffic is an area that we need to crack down on. I am always a little suspicious when the ABI and others say, “Well, look how many road accidents and whiplash accidents we are having in the UK,” or, “Look at the concentration of where they are.” One tends to find that there is a higher incidence of road traffic accidents in congested urban areas than in rural areas, and there are more claims management companies in conurbations than in shire counties. That is probably just a truism, but there we are.

[David Mowat]

In terms of the hon. Gentleman’s brief from the personal injury lawyers, Germany also has built-up areas, and we would not necessarily expect the incidence in our country and other countries to be so massively different.

[Mr Slaughter]

I am glad the hon. Gentleman mentions Germany, because one provision in German law is that one cannot make a soft tissue injury claim—a whiplash claim—if one’s vehicle is travelling at below 8 kph. That was the subject of another of the amendments that we tabled to the Legal Aid, Sentencing and Punishment of Offenders Act but the Government chose not to accept.

[Mr Charles Walker in the Chair]

I am not speaking on behalf of, or indeed against, any sectional interests; they are all entitled to make their points, and, on the whole, professional organisations do a very good job in this country. What I am saying, however, is that it is easy to be distracted—often when there is a political agenda on the table—from addressing the real problems and to start addressing what are not the real problems. Where the Government have clearly got things wrong—we could spend until the end of the debate arguing about road traffic claims and probably about PPI claims as well—is in extending the attack on claimants across the board into areas such as employers’ liability and public liability insurance. Some of the changes being introduced in the Enterprise and Regulatory Reform Bill—again, at the behest of insurers and employers—are appalling in the way they balance, or unbalance, power in the legal system in favour of employers and away from employees, turning back the clock, in some cases, more than 100 years. However, I may be going beyond the subject of the debate.

I will not detain hon. Members any further, because there is a reasonable degree of consensus on the problems we need to address. I suspect there is also a reasonable degree of consensus—Government Back Benchers may be slightly less confrontational about the way they express this—about the fact that the MOJ needs to do more to tackle what is a very common problem for all our constituents.