Am I correct that the DVLA had not previously been informed of your wife's condition? That puts her in a weak position, because it is a requirement to do so. It would also jeopardise her insurance (failure to disclose).
My wife is an insulin-controlled diabetic, and has to get her licence renewed with a doctor's certificate every 3 (I think) years. She has to declare that she has had no unwarned hypos in the previous period.
I have to say that absense of an actual hypo does not in my opinion make someone 100% fit to drive. My observation is that, like with alcohol, impairment begins before one approaches the limit and is similarly resisted with some anger by the driver.
I think it all depends on her doctor or consultant, and what he is prepared to certify for the DVLA.
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Thanks for the help everyone.
More developments. It transpires that she has not declared her condition when she was added as a named driver on her son's insurance. It looks like the insurers will not accept a claim as a result. Result, one very browned off son.
I was interested in the obviously well informed comments above about the Disability Discrimination Act, and in particular the comment that insurers are not allowed either to refuse to offer cover or up the premium for a diabetic.
I suppose that by extension you could argue that if insurers are obliged by law to disregard these factors, then non-dislosure of them cannot amount to a material non-disclosure. This is not my field, but I can see some logic in that argument.
Any of our resident insurance experts care to offer a view?
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Oh and Cliff, she's not my wife! One's enough for me...
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I suppose that by extension you could argue that if insurers are obliged by law to disregard these factors, then non- dislosure of them cannot amount to a material non-disclosure. This is not my field, but I can see some logic in that argument.
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if insurers do not relent, this one will be a ggod case to take to the ombudsman.
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I was interested in the obviously well informed comments above about the Disability Discrimination Act, and in particular the comment that insurers are not allowed either to refuse to offer cover or up the premium for a diabetic.
I don't think that is what is being said, and I looked on the DRC website, where there was nothing specific.
Diabetes UK says "Your premium should not be increased just because you have diabetes. If it is, you should move your business elsewhere. And you must tell any insurance company about your diabetes (including when you get travel insurance). If you don?t, it could make your insurance invalid."
At www.diabetes-healthnet.ac.uk/leaflets/driving.htm it says:
* For your car insurance to be valid, you must inform your insurance company as soon as you develop diabetes. This is required whether your diabetes is controlled by diet, tables or insulin.
* Some companies may refuse cover, impose special terms or charge an increased premium if their statistics show that drivers with diabetes are at higher risk. If this happens, it is worth challenging your insurer, especially if your diabetes is stable and well controlled. It is always worth shopping around for quotes from a number of insurers, as there can be a big difference in premiums.
I suppose that by extension you could argue that if insurers are obliged by law to disregard these factors, then non-dislosure of them cannot amount to a material non-disclosure. This is not my field, but I can see some logic in that argument.
As a non-lawyer who works on discrimination issues, I'd suggest that you are wrong about this.
I have not seen anything to suggest that insurers aee obliged by law to disregard these issues. As far as I can see, the restriction is on a refusal to do business with a diabetic, and on hiking the premium disproportionately.
So, for example, someone whose diabetes is wholly under control and may find little effect on their policy -- it would be discriminatory to jack their premium up sky-high, but a small increase may be justified in that case. However, if someone's diabetes was more serious, a higher premium might be justified.
In other words, the insurers ae obliged to assess the case on its merits, and not simply refuse all diabetics or triple their premiums.
Don't take my word alone on this, but that's how it looks to me.
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Thanks no-wheels, that's very helpful.
Alas, there appears to be no option but to do a little legal research!
I would have been surprised too if my suggestion had proved to be correct, but one does brace oneself for surprising results in these fields.
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Thanks no-wheels, that's very helpful. Alas, there appears to be no option but to do a little legal research!
Glad that helped, but I'd suggest that a call to the DRC or maybe Diabetes UK would give you a clearer picture of the legal position.
Personally, I'd be surprised if the insurers had done anything wrong in refusing the claim because of the non-disclosure, but if I was in your friend's shoes I'd want good advice before just accepting their decision.
My experience is that most solicitors are not well-versed in discrimination law, so I'd suggest a specialist solicitor if the DRC can't clarify.
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Alas, there appears to be no option but to do a little legal research!
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you can start here:
www.financial-ombudsman.org.uk/publications/ombuds...m
and trawl theough the back issues for actual ruling made by the ombudsman based on their criteria as set out in issue 46:
www.financial-ombudsman.org.uk/publications/ombuds...m
www.financial-ombudsman.org.uk/publications/ombuds...m
....
An insurer must not:
1. unreasonably reject a claim made by a customer;
2. except where there is evidence of fraud, refuse to meet a claim made by a retail customer on the grounds:
a. of non-disclosure of a fact material to the risk that the retail customer could not reasonably be expected to have disclosed;
b. of misrepresentation of a fact material to the risk, unless the misrepresentation is negligent?
...
...
the Financial Ombudsman Service approach
Taking account of the law and good industry practice, we approach non-disclosure/misrepresentation cases in three stages. We summarise these three stages below, before describing each one in a little more detail.
When the customer sought insurance, did the insurer ask a clear question about the matter which is now under dispute?
Did the answer to that clear question induce the insurer; that is, did it influence the insurer?s decision to enter into the contract at all, or to do so under terms and conditions that it otherwise would not have accepted?
Only if the answers to both (1) and (2) are ?yes?, do we go on to consider whether the customer?s misrepresentation was an honest mistake, a dishonest attempt to mislead or due to some degree of negligence.
clear questions
The insurer must first provide evidence that it asked the customer a clear question when the customer asked to take out or renew a policy. The insurer may ask questions via a traditional proposal form, which records the answers.
In many cases the transaction will have taken place over the telephone. If there is no evidence, such as a call recording and/or a copy of the statement of facts that the insurer has sent the customer, then we will have to decide what is likely to have happened. If the customer gives a credible account of events, we may find it more likely than the insurer?s version.
A similar statement of fact would be required for internet sales; as would some evidence of the questions asked during the website process, as it existed at the time of the application.
In order for non-disclosure to occur, the insurer must show that it asked clear questions.
inducement
Legally, the insurer must establish that the non-disclosure or misrepresentation ?induced? (or influenced) its decision to enter into the contract. This was established in Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd (Reported [1994] in Volume 3 of the Weekly Law Reports at page 677).
If the insurer cannot prove inducement then the policy will remain valid, even if the non-disclosure was deliberate. The burden of proving inducement will not be high in clear-cut cases. For example, if a customer fails to disclose that their house has serious cracks, we are likely to believe the insurer would not have offered them full buildings insurance.
However, it is rare for cases to be this clear-cut and we will usually require evidence that inducement took place. This may be in the form of a statement from the underwriters and/or a copy of the underwriting manual.
the customer?s state of mind
Not all instances of non-disclosure or misrepresentation breach the duty of ?utmost good faith?. We have identified four types of non-disclosure (deliberate, reckless, innocent, and inadvertent) to help us decide whether, with regard to all the available evidence, the customer acted in breach.
It is possible to deliberately non-disclose without being fraudulent. While dishonesty is one of the essential criteria for fraud, there must also be deception, designed to obtain something to which you are not entitled. For example, a customer might deliberately withhold information they are embarrassed about. Although, in doing so, they are acting dishonestly and deliberately, they are not acting fraudulently because there is no deceitful intention to obtain an advantage.
Only where there is clear evidence of fraud should the insurer retain the premium. In all other cases of deliberate or reckless non-disclosure, the premium should be returned, not least so as to protect the insurer?s position. Retaining the premium could be interpreted as an intention to affirm the contract and/or waive the right to ?avoid?. Our experience is that most insurers return the premium in any event.
deliberate
Customers deliberately mislead the insurer if they dishonestly provide information they know to be untrue or incomplete. If the dishonesty is intended to deceive the insurer into giving them an advantage to which they are not entitled, then this is also a fraud and ? strictly speaking ? the insurance premium does not have to be returned.
reckless
Customers also breach their duty of good faith if they mislead the insurer by recklessly giving answers without caring whether those answers are true or false. An example of recklessness might be where a customer signs a blank proposal form and leaves it to be filled out by someone else. The customer has signed a declaration that ?the above answers are true to the best of my knowledge and belief?, but does not know what those answers will be.
innocent
Customers act in good faith if their non-disclosure is made innocently. This may happen because the question is unclear or ambiguous, or because the relevant information is not something that they should reasonably know. In these cases, the insurer will not be able to ?avoid? the contract and (subject to the policy terms and conditions) should pay the claim in full.
inadvertent
A customer may also have acted in good faith if their non-disclosure is made inadvertently. These are the most difficult cases to determine and involve distinguishing between behaviour that is merely careless and that which amounts to recklessness. Both are forms of negligence.
Inadvertence occurs when the customer unintentionally misleads the insurer. This can occur just by failing to read and check the questions and answers thoroughly enough. When this happens there is no breach of the duty of utmost good faith.
For example, a policy application may contain a clear question about motoring convictions and penalty points. The customer discloses a careless-driving conviction but fails to disclose that they have three penalty points for speeding. In that situation, we might believe that the customer genuinely overlooked his conviction. The customer clearly did not intend to mislead the insurer because he disclosed the more serious offence; he simply failed to realise that penalty points were also part of the question. So the insurer should act as it would have done if it had been in possession of the full facts.
Where there has been inadvertent non-disclosure or misrepresentation, we expect insurers to rewrite the insurance. This should be done on the terms they would originally have offered if they had been aware of all the information. In some cases this may result in a proportionate payment; in others it may result in no payment at all. This is because the inadvertently-withheld information would, if disclosed, have led to the firm declining the application altogether.
Everything turns on the individual circumstances. Customers will find it more difficult to prove that they acted inadvertently if they answered several questions badly. To get one or two questions wrong may be regarded as inadvertent; to get several wrong starts to look like recklessness.
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Dalglish, you are a superstar.
I suspect that the answer therefore is:
If the insurer asked whether Mrs X had any medical conditions and she said no, she is stuffed. quite right too.
If the question wasn't asked, it looks as if the ombudsman will be very sympathetic, particularly in view of the fact that at the time, she had no history of hypoglycemia.
i will pass all this on to my mate, who may well owe you a an enormous virtual bottle of scotch.
i will keep you updated.
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The insurance company MUST be told about a driver being diabetic when the policy is taken out or a diabetic driver is added on to an existing policy.
Its like adding big alloy wheels or a spoiler to a car, If you dont tell the insurance company they can & will refuse to pay out to you in the invent of a claim.
They will pay out to a 3rd party though if one is involved in the claim.
I rang my insurance company today to ask how much I would have to pay if I added a standard rear spoiler on my car, There answer was " It wont cost you anything extra because its a standard factory fit accessory but we must know when its been fitted so we can amend the policy. "
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Did the insurance company ask specifically if this woman had any medical condition?
I have diabetes, and some companies have never asked me about medical conditions. However, I have always told them of my diabetes and it has never affected the premium.
A hypoglycaemic episode can be unexpected - I have never suffered from such - and she could hardly have known this would occur, even though it can be a feature of diabetes.
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It was unfortunate that your friend had an episode without warning. Usually there are early indications (not the least being aware when you change dose/drugs/take med for something else)often getting slight shakes or feeling shaky, giving you time to stop and eat or have a glucose tablet.
When my husband was diagnosed the nurse told both of us, very clearly, that he had to inform both the DVLA and the Insurance Company and that this was a legal requirement. In our case is did not arise as he gave up driving after a spinal injury followed by a stroke, both in his forties (I suspect he likes not having to take turns driving/not drinking when we go out!!)
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The lady is lucky not to have been prosecuted for driving under the influence of drugs. When my husband was diagnosed with type 1, the diabetes nurse warned that this has happened on several occasions. If someone with diabetes thinks they have low blood sugar, they should pull over, switch off and take the key out of the ignition and climb into a passenger seat... As if!!!
The only safe way to drive is to do a blood test before each journey. But who wants to do that many tests? All diabetics should do a rolling cycle of blood tests so that they have an idea what their blood sugars are likely to be on a normal day following their normal regime. If they are planning to do something different, then extra testing is the only safe way.
My husband had a hypo last year only 5 minutes after he been driving with our three children. Don't take chances, you could kill the people you love best.
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