Cohabitees no longer bereaved and aggrieved

This article was co-authored by Zachary Hilton, Litigation Executive, Manchester.

The government has proposed an amendment to S1A of the Fatal Accidents Act 1976 (FAA) to allow a cohabiting partner to receive a statutory bereavement payment. The move follows a Court of Appeal decision that the current law is incompatible with the right to family and it was discrimination, therefore was an infringement on human rights.

Current position

Presently, bereavement damages are fixed at £12,980 and only available to:

  • The spouse or civil partner of the deceased
  • Where the deceased is under the age of 18, his/her parents (if they are married) or the mother (if not).

It is surprising that the rules have not yet caught up, so that a cohabiting partner (let alone a longstanding one) has no entitlement to such an award - this exclusion was the focus of a Court of Appeal case.

Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Others [2017]

Ms Smith had cohabited with her partner Mr Bulloch, for a period of 11 years, before Mr Bulloch tragically died as a result of negligence. Despite this, under the current rules, Ms Smith did not qualify for bereavement damages.

Ms Smith argued however, that a bereavement award should be made available to anyone who had been in a relationship for a minimum of two years (thus bringing it in line with the law on dependency damages).

The court concluded the dichotomy that exists between the respective dependency damages and bereavement damages provisions was incompatible with the European Convention on Human Rights Article 8 (the right to family life) and thus in breach of Article 14 (protection from discrimination).

A change to the law was therefore recommended.

Proposed government amendment

The decision in Smith paved the way for change and only last month, the Ministry of Justice published a draft remedial order to amend S1A of the FAA. The government now proposes to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to death.

Furthermore, the remedial order also provides that in instances where both a qualifying cohabitant and a spouse is eligible (i.e. where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least two years) the award should be divided equally between the eligible claimants.

This change in law is expected to be passed by the end of this year. Sadly, for claimants such as Ms Smith, the law change will not apply retrospectively.

What next?

Many will see this as a welcome development and the proposed amendment will provide certainty in what surely seemed an inevitability following the decision in Smith. Assuming the law is passed (and there is no reason to think it will not), compensators will need to ensure the obligation to pay bereavement damages to cohabitees is accounted for in their reserves.

Looking further ahead, we do not expect the push to ‘modernise’ the FAA to end here. What about the parents of adult children and siblings? The bonds of love and affection do not end or diminish when a child reaches maturity. Likewise, losing a sibling would undeniably be a very distressing and immensely painful experience.

Moreover, what about the amount of damages? Many view £12,980 as being a ‘derisory’ award. Contrast, for example, the situation in Scotland where there is no maximum limit.

This article was co-authored by Zachary Hilton, Litigation Executive, Manchester.

Read other items in Personal Injury Brief - June 2019

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