Title: Insurance Year End Situational Report

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1 PUBLIC ACCOUNTS AND AUDIT SELECT COMMITTEE 25th March 2015 Title: Insurance Year End Situational Report Report of: Group Manager Risk & Insurance Open Wards Affected: None Report Author: Sharon Roots Group Manager - Risk & Insurance Accountable Director: Jonathan Bunt - Chief Finance Officer For Information Key Decision: No Contact Details: Tel: Summary: Approximately 20% of an organisation s risks are insurable. Insurance is one of the main methods of transferring risk and as such plays an important role in any risk mitigation strategy. Insurance is arranged to manage insurable risks, and in some cases it is a legal requirement. This report sets out for Members how the Council manages the transference of these risks and how claims against the Council are managed both proactively and responsively. Recommendation(s) PAASC is recommended: (i) To note the report (ii) Review and comment on the Insurance Information provided within this report. Reason(s): Insurance is an essential part of the arsenal available to mitigate risks faced by the Council. The principal reason for having insurance is to ensure budgetary certainty and is a matter of good financial practice. Insurance assists in the priority of being a well run organisation by ensuring the Council is adequately covered for the consequences and cost of claims, allowing resources to be used elsewhere. 1. Background 1.1 Approximately 20% of an organisation s risks are insurable. Insurance is one of the main methods of transferring risk and as such plays an important role in any risk mitigation strategy. Insurance is arranged to manage insurable risks, and in some cases it is a legal requirement. 1.2 By transferring risk to an insurer, the Council is purchasing a large element of financial protection from the impact of large losses and a degree of budgetary certainty. The Council s insurance arrangements are a mixture of external insurance and internal self-funding, the aim being to achieve an optimum balance between the two. 1.3 In 2012, the Council entered into a new 5 year contract with Zurich Municipal Insurance (ZMI) who have been the Council s insurers since the demise of

2 Municipal Mutual in The contract renewed with ZMI on 31 st March 2012 after a tender was conducted in accordance with European Procurement Directives. 1.4 There is a limited market for the provision of insurance services for local authorities and an insurance broker was engaged to ensure the widest possible selection of insurance companies were available to quote. Insurers expressing an interest in this contract were short listed following a comprehensive evaluation. ZMI were appointed having proved that they offered the best value for money solution for the Council. 1.5 There are currently 38 policies broadly divided into liability, property, motor, legal expenses, personal accident and travel. 1.6 The extent of coverage provide by insurance policies is influenced by changes in the insurance market. One of the effects this has had on the Council is that it has become self-insured for excluded perils where buy back cover is not available. Buy Back Insurance is where a liability has been excluded from the general policy but is available to buy back at an additional premium. 1.7 The current levels of self Insurance (known as deductibles or excesses) carried by the council for the main types of insurance is: 150,000 in respect of Liability Claims 150,000 in respect of Property Claims These deductibles are applied for each and every claim. The Council maintains an insurance fund to ensure that the financial liability for claims below the deductible will not impact on budgets. The level of this fund is reviewed by an insurance actuary every three years and by the Council s insurance team annually. 2 Municipal Mutual Insurance (MMI) 2.1 Before it stopped underwriting operations in September 1992 Municipal Mutual Insurance Ltd (MMI) was the predominant insurer of public sector bodies, including local authorities, police and fire and rescue services. The implementation of a Scheme of Arrangement in 1993 means that even today many of those bodies and their successor authorities still have potentially significant financial exposure to MMI. 2.2 MMI declared insolvency in November 2012 which triggered the Scheme of Arrangement. 2.3 Ernst & Young has been appointed administrators of the Scheme and in their letter of 2 April 2013 they advised that: The 1st Levy rate will be at 15% The payment of future claims will be at 85% of the total claims. The impact of this is that the Council will become liability for 15% of any future claims. Depending on the level of the claims run-off, it may be necessary to impose further Levies. 2.4 The Council s liability for the 1st levy was 521,184 which was paid out of the MMI Fund established in 1992 to cover the Council s potential liability under the scheme of arrangement agreement.

3 3. Claims 2.1 Claims are divided into those made against the Council (liability claims) and those made by the Council for damage or loss of its property. 2.2 Liability claims are where a party suffers a loss due to an alleged negligent act or omission by the Council. A negligent act is a tort or civil wrong and is based in common law. Breach of legislation also constitutes a tort. The main legislation governing liability claims are: Heath & Safety at Work Act 1974 Occupiers Liability Act Road Traffic Act Human Rights Act 2.3 The processing of liability claims is governed by legislation. The most important being the legal protocols introduced by Lord Woolf, the Civil Procedure Rules The protocols mainly concern injury claims. They set out deadlines, claims procedures and document disclosure that if not followed can lead to the claimant being awarded compensation whether or not a liability is found in addition to financial penalties being levied against the defendant. Some of these penalties have been in excess of 50, The amount of compensation payable is based on the principle of placing the claimant back into the position that he or she would have been in but for the accident. Changes or new legislation have an impact on the final outcome, for example: Conditional Fee Arrangements (CFA) (no win no fee) have led to an increase in the number of legally represented claims. CFA s have also increased the cost of a claim as the Lawyers are given a success fee if they win that can be up to 100% of the award amount as well as their normal case fee. For example, an award of say 10,000 compensation for an injury, then actually costs the Council 10,000 plus the success fee percentage, say 100%, another 10,000 plus normal fees on average for a normal straight forward claim of 5,000 meaning a total claim pay out of 25,000 CFA's have been used in civil litigation since the 1990s. CFAs are a means of funding litigation, usually entered into by claimants, where the lawyer agrees not to take a fee if the claim fails. If the claim is successful, the lawyer will charge an uplift (known as a success fee) in addition to his base costs. They have been particularly used in damages cases, such as for personal injury. The previous arrangements meant that the winning party's 'success fee' is payable by the losing party in addition to the ordinary legal costs of the winning party. This adds substantially to costs for defendants. Since 1 April 2013, the 'success fee' has no longer been payable by the losing side; if one is charged it will be paid by the winning party, typically out of damages recovered. The 'success fee' can be up to 100% of basic fee this remains unchanged from when CFAs were first introduced in the 1990s. However, in personal injury cases, the success fee that the lawyer may charge must not exceed 25% of the damages, excluding damages for future care and loss. This is designed to protect claimants' damages in personal injury cases, and will ensure that any damages for future care and loss are protected in their entirety.

4 The Jackson Reforms, now in operation from September 2013, amends the CFA. It is abolishing the success fee but replaced it with an increase in the total amount of Compensation payable by an across the board 10%. Creation of the Department of Work and Pensions Claims Recovery Unit (CRU) whereby the cost of any benefits paid to a claimant are clawed back if compensation is found payable. This means any benefits paid to the claimant are recovered from the defendant if they are found liable and are added to the amount payable to the claimant. This can include the costs incurred for treatment, including NHS costs, or transportation by the ambulance service being added to the cost of the claim. 2.5 The number of liability claims paid is a key indicator of how well the Council manages its risks. Compensation is only paid, whether from ZMI or from the Council s insurance fund, where: a liability is found where there is insufficient documentation available to mount a reasonable defence a breach of legal protocols 4. Claims Funding 3.1 The impact of insurance market changes means that the Council is self insured for any losses or compensation under the policy deductibles and for excluded risks. Internal insurance funds have been established to ensure that provision is made to meet any liabilities or losses incurred. This currently stands at 9.5m. 4.2 The following are examples of changes in market trends that can have an enormous impact on the finances of the Insured Large deductibles (excesses) were imposed by the market on large organisations and public sector bodies 1993 Terrorism was excluded from all policies and can only be purchased from an insurance pool instigated by central government Gradual contamination and pollution was excluded from liability policies 2005 Asbestos liabilities were excluded from liability policies and as yet there is no buy back product being offered 4.3 The outstanding claims figures included in this report represents the Council s known estimated financial exposure at this time. However due to the statute of limitations on claims a liability can be incurred but not yet reported. Injury claims 3 years from the date of the accident Disease / ill health 3 years from the date of diagnoses. For certain forms of asbestosis or abuse this can be as long as 40 years. Minors until the injured party reaches the age of Claims Fraud 4.1 It is estimated that fraudulent claims cost the insurance industry 1.9 billion a year. The insurance industry has set up a number of centralised data bases, for example the Insurance Fraud Bureau, where claims information is recorded to help combat fraud and to identify serial claimants. 4.2 The Council s insurers work closely with the Council to prevent fraudulent claims. Although very few suspicious claims have been identified, these have been withdrawn following a carefully worded letter from the Insurers Fraud Investigation Team.

5 4.3 The LBBD Insurance staff report any suspicious claims received to the Insurers requesting that they be investigated and quarterly meetings are held with the Insurers to review potential cases. 5.4 The Council participates in the Government s National Fraud Initiative, investigate every match and have, to date, not had any fraudulent claims identified. 5.5 The Council appears, to date, to have avoided many of the "cash for crash" problems in London although the Insurers have reported a number of suspicious whiplash claims and Phantom passengers in a few of the more recent claims. However the Council s drivers have started to take photographs of accident scenes which is proving beneficial in defending claims. 6. Claims Trends 2.1 There has been an increase in the numbers of claims for damage to contents within tenanted properties, i.e. due to damp and mould and leaking roofs, and this has to be considered as a factor in the prioritisation of the investment in the housing stock. 2.2 Increase in suspect motor claims and phantom passengers. 2.3 A decrease in the number of theft of lead from school roofs and other properties which is due to many reasons such as replacing stolen lead with a non-lead material, increased security and surveillance, changes in legislation relating to Scrap Metal Dealers and a more pro-active approach by the Police 2.4 It is still too early to confirm any significant impact on the number of claims following the return of the Housing Repair & Maintenance Service to the Council although a quick comparison between the five years preceeding, and almost two years after it s return, has at this stage shown an increase in Tenant property damage claims, with a projection of a similar 5 year period indicating a possible 37% increase in claims. 2.5 It was hoped that the changes to the legal aid system and the Ministry of Justice Reforms would see a reduction in injury claims. Regrettably, this did not materialise and the relative ease with which Third Party solicitors can now submit claims via the Portal, coupled with the removal of any worry of their fees not being paid in the event of losing a claim at trial, more and more opportunistic claims are being made. 7. Claims Management 7.1 The level of compensation paid to third parties is slowly increasing and is estimated to be on average between 1.8 to 2million per year, payable by the Council out of its self funding provision. 7.2 Due to the nature of services provided by the Council, claims will never be totally eradicated but preventative and proactive actions taken can reduce the number of claims and the level of compensation payable. Key to reducing claims are: Risk awareness Sufficient resources to maintain good systems of inspections, repairs and security o e.g. Highways Inspectors local authorities have a statutory defence for highways slips and trips referred to as a Section 58. If authorities comply with best practice and their own policies on highway inspection and maintenance, maintain sufficient records, then a successful defence of the majority (80%) of slip trips claims can be expected. Failure to comply

6 with those policies and/or best practice means Councils lose that defence and therefore will have to pay all claims. This could cost, using current number of claims and amounts claimed, about 1.25m per year, in addition to the other claim amounts that are paid. o There have been some examples, Manchester CC & Liverpool CC, who cut their Highway Inspectors and inspection regimes, where this has cost the authorities approximately 5 million in a 4 year period in additional claim payments. The lack of records and inspections allowed organised fraud rings to take advantage of the situation and the numbers of claims for slip/trips escalated as it became known that there was no statutory defence in place. Good standards of record keeping make claims defendable Adequate Health & Safety resources to maintain good standards of staff training and inspections 7.3 To assist departments in the identification of weak areas, good practice and to raise risk awareness, the Risk and Insurance Service is providing claims data to Corporate and Divisional Directors on a regular basis. Also being explored is the possibility of holding a number of workshops concerning liability and claims. 7.4 Actions already in place are: Risk Management Training Feed back to departmental managers on an individual claims basis stating why a liability has been found or identifying areas of good practice enabling the claim to be defended The commissioning of various risk audits by the Insurers as part of the Insurance contract 8. New Risks for 2015 Return of some Elevate Services to the Council Continued reduction in services due to budget cuts 9. Financial Implications Implications completed by: Jonathan Bunt 9.1 The regular review of the Council s insurance arrangements assists in ensuring the Council is adequately covered for the consequences and cost of claims and that risks are identified and managed through appropriate insurance policies or sufficient provision made to cover self insured risks. 10. Legal Implications 10.1 This is a for information only report and has no specific legal implications 11. Other Implications Risk Management 11.1 Insurance is an essential part of the arsenal available to mitigate risks faced by the Council. The principal reason for having insurance is to ensure greater budgetary certainty. The knowledge that you are covered for the amount over the excess in the Policy allows resources to be used elsewhere. If the Council did not buy insurance and was completely self funded then if, for example, a School valued at 12 million was burnt down it would have to be rebuilt and paid for out of current

7 resources whereas with insurance in place, the Council is only liable for the first 150,000.This is exemplified by the Campbell Infant School fire claim that was settled by Insurers at 2.5m which would have had to have been found if the Council wasn t insured 12. Consultation 12.1 The Insurance Manager and Insurance section have been fully involved in the provision of the information contained within this report. 13. Background Papers Used in the Preparation of the Report: 13.1 Insurance Claims Records 14. List of appendices: Claims Figures for claims where the Council part self-insures Appendix A - Liability Claims o Public Liability o Employers Liability Appendix B - Motor Liability Appendix C - Property o Housing o General o Education

8 Appendix A Public Liability Claims for Period to Barking and Dagenham Council Summary Status Report - Public Liability No. Claims PAYMENTS TOTAL CLAIM Page 1 of 1 O/S ESTIMATE Year Closed Open Total Insurer Internally Total Claim Insurer Internally , ,056, ,152, , , , , , , , ,186, , , ,215, , , ,864, , , , , , Totals: ,317 5, ,794, ,715, , ,135, Public Liability Claims by Department Finance & Resources, 1% Adult & Community, 4% Children's Services, 5% Housing & Environment, 90%

9 Public Liability Claims Costs Incurred by Department Adult & Community Children's Services Housing & Environment Finance & Resources Public Liability Claims by Cause TREES, 2% OTHER, 5% ACCIDENTAL DAMAGE BY EMPLOYEE, 5% PROPERTY DEFECTS, 24% SLIP/TRIP/FALL, 47% CARRIAGEWAY DEFECTS, 16%

10 Public Liability Claims Costs Incurred by Cause 5,000, ,500, ,000, ,500, ,000, ,500, ,000, ,500, ,000, , SLIP/TRIP/FALL CARRIAGEWAY DEFECTS PROPERTY DEFECTS ACCIDENTAL DAMAGE BY EMPLOYEE TREES OTHER

11 Employers Liability Claims for Period to Barking and Dagenham Council Summary Status Report - Employers Liability Page 1 of 1 No. Claims PAYMENTS TOTAL CLAIM O/S ESTIMATE Year Closed Open Total Insurer Internally Total Claim Insurer Internally , , , , , , , , , , , , , , , , , Totals: , ,094, , Employers Liability Claims by Department FINANCE & RESOURCES, 9% ADULT & COMMUNITY, 16% HOUSING & ENVIRONMENT, 31% CHILDREN'S SERVICES, 44%

12 Employers Liability Claims Costs Incurred by Department ADULT & COMMUNITY CHILDREN'S SERVICES HOUSING & ENVIRONMENT FINANCE & RESOURCES Employers Liability Claims by Cause HIT BY OBJECT/EQUIPMENT, 8% ASSAULT, 4% OTHER, 16% SLIP/TRIP/FALL, 41% WORK RELATED STRESS, 5% DEFECTIVE PREMISES/EQUIPMENT, 9% MANUAL HANDLING, 18%

13 Employers Liability Claims by Costs Incurred SLIP/TRIP/FALL MANUAL HANDLING DEFECTIVE PREMISES/EQUIPMENT WORK RELATED STRESS HIT BY OBJECT/EQUIPMENT ASSAULT OTHER

14 Appendix B Motor Policy Claims Report for period to Barking and Dagenham Council Summary Status Report - Motor No. Claims PAYMENTS TOTAL CLAIM Page 1 of 1 O/S ESTIMATE Year Closed Open Total Insurer Internally Total Claim Insurer Internally , , , , , , , , , , , , , , , , , , , , , , , , , Totals: , , , , , MOTOR CLAIMS BY CAUSE Reversing Hit Stationary Vehicle Hit By Third Party Vehicle No Knowledge Of Incident Hit From Behind Hit Vehicle In Front Hit Whilst Parked Doors - Swung Open Found Damaged In Depot Hit by Vehicle Accidental Damage Other 24% 21% 2% 2% 2% 2% 3% 3% 4% 8% 10% 18%

15 MOTOR CLAIMS BY COST 200, , , , , , , , , , Reversing Hit Stationary Vehicle Hit By Third Party Vehicle No Knowledge Of Incident Hit From Behind Hit Vehicle In Front Hit Whilst Parked Doors - Swung Open Found Damaged In Depot Hit by Vehicle Accidental Damage Other

16 Appendix C Property Damage Claims for period to LONDON BOROUGH BARKING & DAGENHAM - EDUCATION PROPERTIES BUILDING CLAIMS SUMMARY - 01/04/ /03/2015 PERIOD PERIL TOTAL TOTAL NO. NUMBER AMOUNT NUMBER TOTAL CLAIMS CLAIMS ESTIMATED CLAIMS AMOUNT OUTSTANDING OUTSTANDING CLOSED PAID FIRE 5 1 2, , WATER , , IMPACT , , STORM , , BREAK-INS , THEFT LEAD , TOTALS , , LONDON BOROUGH BARKING & DAGENHAM GENERAL PROPERTY CLAIMS SUMMARY - 01/04/ /03/2015 TOTAL UNDERWRITING PERIL TOTAL NO. NUMBER AMOUNT NUMBER TOTAL YEAR CLAIMS CLAIMS ESTIMATED CLAIMS AMOUNT OUTSTANDING OUTSTANDING CLOSED PAID FIRE , WATER , IMPACT , STORM THEFT LEAD , TOTALS , LONDON BOROUGH BARKING & DAGENHAM HOUSING DWELLINGS SUMMARY CLAIMS - FROM 01/04/ /03/2015 Year Total Number Estimated Number Total Number Claims Costs Claims Costs Claims Outstanding Outstanding Closed Paid Made , , , , , , , TOTALS ALL , , YEARS

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