Final Guidance: Business interruption insurance test case - proving the presence of coronavirus (Covid-19)

Open consultation
11/12/2020
Consultation closed
18/01/2021
Final Guidance
03/03/2021
03/03/2021

This final guidance sets out the types of evidence and methodologies which policyholders may wish to use when proving the presence of coronavirus (Covid-19) in a particular area around their premises.

The guidance will provide clarity for all parties and help to ensure that the process of proving the presence of Covid-19 is made as simple as possible for policyholders and enable valid claim payments to be made as early as possible.

Read the final guidance (PDF)

Read FS21/5: Feedback from the draft guidance

Why we’re issuing this guidance

This guidance builds on the High Court’s judgment and declarations and the additional statements from the Supreme Court in the context of insurers’ obligations under our rules to handle claims fairly. It is intended to:

  • provide clarity for all parties
  • help ensure that the process of proving the presence of Covid-19 is made as simple as possible for eligible policyholders and
  • enable those policyholders to receive claim payments as early as possible

Who this applies to

This guidance is for:

  • policyholders
  • insurers (including managing agents at Lloyd’s) 
  • insurance intermediaries

Background  

We received many complaints that insurers were taking a narrow view of whether their business interruption (BI) policy wordings would provide cover in response to Covid-19. Our supervisory work confirmed that insurers were refusing most SME BI claims, with genuine debate about the meaning of some policy wordings. Some policies require the policyholder to prove the presence of Covid-19 in a particular area around their premises.

In June 2021, we began a test case in the High Court to provide certainty for all parties. Aspects of the High Court judgment were appealed to the Supreme Court, which delivered its judgment on 15 January 2021.

The declarations of the High Court relating to proving the presence of Covid-19 and covered by the draft guidance were not under appeal.

Next steps

The guidance comes into effect on 3 March 2021 and will cease to have effect on 31 January 2022, by which time we expect that all issues relating to proving the presence of Covid-19 will have been resolved.

This guidance is our view and it does not prevent policyholders using other sources of evidence or putting forward their own arguments regarding the sources of evidence in this guidance.

Imperial College Data

Download the Imperial College Data dated 18 March 2021 referred to in the FCA Guidance at paragraph 8.13.

The data shows the Imperial College estimate of infections at the Lower Tier Local Authority (LTLA) level during the early stages of the pandemic. We consider that the Imperial Data is a reliable estimate of the number of cases present in LTLAs during March 2020 and later periods. It is the best available evidence of estimated cases at LTLA level that we are aware of at the date of this guidance.

The data is presented in the following columns:

  • Area: LTLA name
  • Type: infection or R rate
  • Value: point estimate of new cases / R rate
  • CIlow: lower bound of confidence interval
  • CIup: upper bound of convidence interval
  • Period start/period end: date of estimate (adjusted, see below)
  • Coverage: statistical confidence level

Updated data set

Imperial College issued an update to their data on 18 March 2021. We have published this data as it is the most up to date and accurate publication for a policyholder to use. If you have used the previous version we recommend you use the latest version of the data.

Adjustment to start date

We have made an adjustment to the dates in the Imperial College data set. High Court Declarations 5 and 6 require a person with Covid-19 to be capable of being diagnosed in order for Covid-19 to be 'sustained', 'occurred' or for there to be an 'illness sustained by an person resulting from' Covid-19. Declaration 7 requires a person to have symptoms or be actually diagnosed for Covid-19 to be 'manifested'.

Given that there is an average of 5 days between a person being infected with Covid-19 and the date on which they are capable of diagnosis through testing due to the incubation period of the virus (see 'Epidemiology and transmission of COVID-19 in 391 cases and 1286 of their close contacts in Shenzhen, China: a retrospective cohort study' published in the Lancet on 27 April 2020), we have added 5 days to the Imperial College data. As a result, the Imperial College data which Imperial College report for [15 March] is referable to [19 March] instead. This means that the data we are publishing should show the number of infections that are capable of being diagnosed on any particular day, in line with the Declarations.

Page updates

30/03/2021: Information added Updated Imperial College Data