Bereavement Damages & Cohabiting Couples – Time For Change?

When a person dies as a result of medical negligence, under the Fatal Accidents Act 1976 (Act), relatives of that person are entitled to recover damages for the wrongdoing. Every such action will be for the benefit of the dependants of the person whose death has been caused.

Under the Act, claims can be made by the relatives and dependants of the deceased in their own right, but the categories of those eligible to benefit from such a claim is limited.

What can be claimed under the Fatal Accidents Act?

Under the Act, the following three heads of loss can be claimed:

  1. Bereavement;
  2. Dependency; and
  3. Funeral expenses.

Perhaps the most controversial aspect of the provisions of this Act are the limitations to the categories of people entitled to claim. There has been much debate and calls for change over the years.

Most recently, the Joint Committee on Human Rights reported on the Remedial Order to amend the Act to add cohabiting partners of a deceased as a new category of claimants eligible for bereavement damages. This month, the Government has shared its response and we’ll consider that further, later in this article.

But, first, let’s have a look at dependency claims and bereavement claims and consider why there is a need for change to the rules.

Dependency claims

Dependency claims represent the loss to those left behind who would otherwise have relied on the income of the deceased or continued provision of services (e.g. gardening, DIY, chores around the home, etc.). The categories of those entitled to benefit from a dependency claim are:

  • The wife or husband (or former wife or husband) of the deceased;
  • The civil partner (or former civil partner) of the deceased;
  • Any person who:
    • Was living with the deceased in the same household immediately before the date of the death; and
    • Had been living with the deceased in the same household for at least two years before that date; and
    • Was living during the whole of that period as the husband or wife or civil partner of the deceased.
  • Any child or other descendant of the deceased;
  • Any person (not being the child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage; or
  • Any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

The continue issue of contention with this part of the Act is the provision for cohabiting couples. As you can see above, those who are cohabiting as a couple will only be entitled to claim a loss of dependency under the Act if they have been living together consistently for two years prior to the date of death.

Bereavement damages

However, there are even further limitations on who is entitled to claim bereavement damages. Bereavement damages is a fixed sum, currently set at £12,980. However, it is payable only to a very limited category of claimant.

Under section 1A of the Act:

“A claim for damages for bereavement shall only be for the benefit of:

– The wife or husband [or civil partner] of the Deceased;

– Where the Deceased was a minor who was never married [or a civil partner]

– Of his parents, if he was legitimate; and

– Of his mother, if he was illegitimate.”

The Act does not allow couples who are cohabiting to make a claim for bereavement damages. Essentially, if a claimant was not married or in a civil partnership at the time, no compensation for a bereavement award is payable under the Act.

Cohabiting couples and bereavement damages – time for change

In the case of Smith v Lancashire Teaching Hospitals & Others 2017, the bereavement award system was challenged.

In this case, Miss Smith had cohabited with her partner for over 10 years when her partner died due to medical negligence. Miss Smith was unable to claim bereavement damages because she was not married or in a civil partnership with her partner at the time. The case reached the Court of Appeal where it was found that section 1 of the Act was incompatible with Article 8 of the European Convention on Human Rights.

Following this judgement, the Ministry of Justice published a proposal for a Remedial Order to amend the Act. This set out that legislative change was required to address the finding of incompatibility with Article 8 in the case of Smith.

The proposal was to amend section 1A of the Act to make bereavement damages available to claimants who had cohabited with the deceased person for a period of at least two years immediately prior to the death.

Government response to the current laws concerning cohabiting couples and bereavement damages

This month, the Government has shared its response to a report from the Joint Committee on Human Rights and the draft Remedial Order to amend section 1A of the Act in relation to bereavement damages for cohabiting couples.

In its response, the Government welcomed the action in proposing the Remedial Order to remedy the incompatibility in the Act with the Convention prohibition against discrimination and the right to private and family life. The Government hopes to complete the Parliamentary process in relation to the remedial order in a timely manner.

In the Government’s view, the proposed Remedial Order adequately addresses the judgment of the Court of Appeal by extending the bereavement damages scheme to cohabiting couples who have been living together for at least two years prior to the death, thereby removing the unlawful discrimination in section 1A of the Act.

Interestingly, the response also stated that the Government has various concerns with the bereavement damages scheme as a whole. For example, the Government notes:

  1. The language used to define cohabiting couples could be altered so as not to be based on intimation of married couples and civil partners. The Government suggests adopting a definition of cohabiting couples as:

“two people living as partners in an enduring relationship.”;

  1. The qualifying time period of two years for cohabiting couples may not always be a fair indicator of permanent and loyal relationship. The Government suggests it be reconsidered;
  2. The equal division of damages between separated spouses and cohabiting partners could lead to unfairness; and
  3. That section 1A of the Act is discriminatory against certain close family members. It is suggested that broader look at the bereavement damages scheme should be undertaken with consultation on reforming the scheme.

Further reform of the Act would fall outside of the scope of the Remedial Order powers of Government and would require primary legislation, but it is positive to see that the above has been noted and a potential consultation could be imminent.

The Government also considers that an adjustment to the level of bereavement damages is appropriate to reflect inflation in the period since the award was last increased back in 2013. It is proposed that steps will be taken to lay the appropriate Order before Parliament in due course.

Of course, the amendments of the Remedial Order are positive and welcomed, but it is clear that there is much more to consider and potentially change when it comes to the bereavement damages scheme.

Cohabiting couples bereavement damagesHow can Nelsons help?

Danielle Young is an Associate in our Medical Negligence team.

If you have any questions in relation to the subjects discussed in this article, then please get in touch with Danielle or another member of the team in DerbyLeicester or Nottingham on 0800 024 1976 or via our online form.

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