01 March 2021

It is estimated that the NHS is vulnerable to £1.21 billion worth of fraud every single year. This is a shocking sum. Fraud takes taxpayers' money away from patient care and puts it into the hands of criminals, and it is understandable that there is currently so much focus on this area.

The latest example is a 37-year-old claimant, Linda Metcalf, who deliberately and fraudulently claimed compensation in excess of £5.7 million against the NHS.

At a committal hearing on 11 February 2021, she was sentenced to six months in jail, and she has repaid the interim payment of £75,000 that she received for her injuries by selling her home.

She was also ordered to repay the costs of the committal hearing within 28 days, amounting to £23,000.

NHS Resolution pursued committal proceedings on behalf of Calderdale and Huddersfield NHS Foundation Trust in line with its strategy to combat and deter fraud by dishonest claimants. The court determined that Ms Metcalf was fundamentally dishonest for grossly exaggerating the effect of injuries sustained from a 24-hour delay in diagnosing spinal cord compression (cauda equina syndrome). The court heard that the doctor who saw Ms Metcalf said he was "fundamentally misled" by Metcalf during the examination.
The court heard that if she had not committed the fraud, she could have been entitled to a genuine claim for around £350,000.

Video surveillance of Ms Metcalf showed that, while she claimed to be severely disabled, she only used her wheelchair and crutches for medical appointments. She only admitted her dishonesty when caught out with the surveillance. The footage showed her driving, walking up steps, walking without sticks and queuing for half an hour in a hotel reception unaided. She also visited countries all over the world.
In his remarks, The Honourable Mr Justice Griffiths said: "She gave a completely stage-managed appearance about her disability…. She was misleading, and that was shown on more than one occasion."

It is little wonder she was jailed. This was far from a one-off incident and amounted to a course of conduct which was sustained relentlessly over a course of years.

What is clear now from the case law is that a claimant who knowingly pursues a fraudulent claim is likely to receive a custodial sentence, and courts are taking an increasingly hard line on fraudulent claims. In Zurich Insurance v Romaine (2019) the claimant issued proceedings for a noise-induced hearing loss claim, then later discontinued, only to then be served with committal proceedings. The judge issued a warning to claimants that "dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim."

With the aim of increasing access to justice, the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 will this year introduce a regime of 'qualified one-way cost shifting' (QOCS) for Scottish personal injury claims, meaning that with a few exceptions, an unsuccessful claimant will not be liable at all for the defender's costs.
The claimant must "conduct the proceedings in an appropriate manner" - s8(1)(b). If it is found that the claimant has made a "fraudulent representation or otherwise acts fraudulently in connection with the claim or proceedings", then the court has discretion to make the claimant liable for the defender's costs.

However, we do not yet know how the fraud exception to QOCS will be applied, and it will be interesting to see how this develops. What is clear is that there is potential for an increase in fraudulent claims.

For more information on this matter, please contact:

Natalie McCartney, Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2957