Kerry Underwood

NHS Litigation Authority: Has it misled Parliament?

with 10 comments


“30% rise in negligence claims against NHS” screams the Daily Telegraph headline of 5 August 2011, typical of others.

No such increase ever occurred as I will demonstrate below, so where did this figure come from?

In its report to Parliament 2010-2011 the Chief Executive, Steve Walker, a Civil Servant, leaps straight in to the political arena:

“We are delighted that the Ministry of Justice is taking forward the recommendations made by Lord Justice Jackson regarding the costs of civil litigation.  We believe very strongly that a regime which allows success fees and the recoverability of After-the-Event (ATE) insurance premiums makes litigation so profitable that solicitors and so-called “claims farmers” are drawn into the market thereby fuelling the rise in claims volumes we have experienced.

After large increases in previous years we saw new claims volumes for newly reported clinical claims rise by around 30% in 2010-2011 and by around 6% for non-clinical”.

The truth is very different.

Conditional fee agreements were first allowed on 5 July 1995.  According to the NHSLA’s own figures the number of claims notified in 1997/1998, when conditional fee agreements were first becoming popular in clinical negligence claims, was 6,711.  By 2009/2010 the number had fallen to 6,652.

Recoverability of success fees and ATE insurance premia came in on 1 April 2000, apparently causing the explosion in claims.  Yet the 2007 NHSLA report said “the number of matters we receive has remained remarkably steady over recent years.  This year there was a small decrease in the number of clinical matters in 2006/2007 over 2005/2006″.

The 2008 report said: “The number of claims we receive has continued to remain remarkably steady over recent years.  This year, there was an increase of less than 1% in the number of clinical claims reported”.

Between 2008 and 2009 there was an increase in clinical claims of 11.30% from 5,470 to 6,088 and between 2009 and 2010 a further increase of 9.26% from 6,088 to 6,652.

The pattern of non-clinical claims very closely follows that of clinical claims, and the percentage rises in such claims between 2007-2008 and 2008-2009 was 10.74%, up from 3,380 to 3,743 and between 2008-2009 to 2009-2010 was 8.84% up from 3,743 to 4,074.  Previous years show a similar close correspondence.


Between 2009-2010 and 2010-2011 non-clinical claims rose from 4,074 to 4,346, an increase of 6.68%.

Another measure of activity is the figure of claims open at the year end.  A big surge in new claims will result in an even bigger rise in figures because it will be the older, lower, number of claims falling out whereas the new ones are all still in.  On this measure non-clinical claims showed a 7.52% rise between 2009-2010 and 2010-2011 and clinical claims showed a rise of 7.51%.

So for 2010-2011 on three measures we have rises of 6.67%, 7.52% and 7.51%.

Yet clinical claims jumped from 6,652 to 8,655, an astonishing increase of 30.1%.

Very obviously this rise has nothing to do with conditional fees or recoverability of success fees and ATE as conditional fees had been in for 15 years and recoverability for 10 years, and as we have seen claims sometimes fell during the years of recoverability.

So what DOES explain it?

Nothing, because there was no such increase.

On page 12 of the report, under “Claims Received” it says:

“Formal clinical claims received under CNST [Clinical Negligence Scheme for Trusts] saw an increase of 31.6% on 2009/2010 and non-clinical claims under LTPS [Liabilities to Third Parties Scheme] rose by 7.8%.  Part of the significant increase in claims under CNST may be explained to some extent by the requirement for claimants to now send us a copy of the Letter of Claim at the same time as it is sent to the defendant NHS body, at which point we now record the claim, but we are analysing patterns and trends to obtain a better understanding of the reasons behind the increase” (My emphasis).

Thus the headline-grabbing 30% increase is pure fiction and is obviously and readily explained by a change in reporting methods.

Why did Mr Walker not mention this?  Why make the politically charged, and wholly inaccurate, link between “large increases” and recoverability of success fees and After-the-Event insurance premia?

Of course next year, based on this year’s higher figure and using the same, new, recording procedure the percentage increase will revert to a true figure, so it is just this one year when the percentage increase is distorted upwards.

Am I being too cynical in thinking that it suited the NHSLA to present the report to Parliament in this way this year just as Parliament is considering the abolition of recoverability?

As Disraeli said “There are lies, damned lies and statistics”.

10 Responses

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  1. Interesting post Kerry. I am not very surprised, though a reporting change may also include a real increase in claims it seems to me important that such a body reports such information clearlly and neutrally. Indeed, I wonder if the NHSLA has breached any of its obligations to “efficient, effective and impartial administration of the Scheme” as per its Framework document. An FOI request of its discussions of the data might also be very interesting.

    Richard Moorhead

    August 25, 2011 at 9:51 pm

  2. Thanks Richard. Yes, I suspect there was a rise of between 6% and 7% in line with the other figures and similar to the rises for the previous 2 years.Good point about Freedom of Information Act request. Are there any journalists still doing investigative work?


    August 26, 2011 at 8:46 am

  3. Dear Super Sleuth. Sorry for the delay in comment but I have been resting on distant shores. These blighters who tell shameless lies should be punished with a medievil bollock crushing device. Can you believe anyone would tell such porkies for political gain ?. Its a good job we have truth seekers such as yourself to expose their disingenous filth

    As a famous peron once said “A liar is sooner caught than a cripple”


    August 30, 2011 at 8:10 am

  4. Maybe Mr. Walker could appear in front of the House of Commons to explain this – surely he has a good explanation? It would also be good if some legal journalists did some research – us lawyers do have practices to run as well as carrying out investigative journalism!


    August 30, 2011 at 2:15 pm

    • Steve Walker has resigned from the NHSLA, coincidence?


      August 30, 2011 at 8:31 pm

  5. It has been announced that Steve Walker, Chief Executive of the NHSLA ,will retire in March 2012.


    August 31, 2011 at 7:21 am

  6. Late to the party but do have a look at the example of the Clinical Indemnity Scheme in the State Claims Agency in Ireland which was set up to manage clinical negligence claims. However, beware of the following caveat: there is a huge private element to health care in Ireland and this complicates claims somewhat.


    February 16, 2012 at 11:45 pm

  7. […] in 2010-2011 was misleading and that the truth was very different. (Click here for original piece: […]


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