The Government has recently rejected calls for expanding the eligibility for bereavement damages with the justice minister, Edward Agar, stating that the current legal framework is a “reasonable, proportionate and practical approach”.
In response to parliamentary questions published on Monday (17th April), Mr Agar commented that:
“Changes to extend availability to other family members (including fathers of illegitimate children) whose relationship to the deceased person may be less close may require a fundamentally different approach which would permit enquiries into the nature of the relationship in individual cases.
“This could lead in some cases to intrusive and upsetting investigation of the claimant’s relationship with the deceased person and could also increase the cost and complexity of the proceedings.
“The context is important – bereavement damages are widely recognised and accepted as a fixed payment in acknowledgment of grief and are in no way intended to try to reflect the value of the life lost in monetary terms. They are only one element of the damages that may be awarded in a particular case, which for example can also include damages for dependency.”
What are bereavement damages?
There is a statutory award under the Fatal Accidents Act 1976, payable to certain relatives in a personal injury claim where their loved one has died because of another’s negligence or breach of duty.
For years, claimant lawyers have campaigned to change this award as it is both too low and too restrictive in terms of who is eligible to claim the same, meaning thousands of people are left not only without their loved ones but without justice and without well-deserved compensation.
The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020 came into force in May 2020 and increased the statutory bereavement award in England and Wales from £12,980 to £15,120. This was the first increase since April 2013 and is still considered to be too low. Further still, no changes have been made to who can claim.
Who can claim bereavement damages?
Currently, statutory bereavement damages can only be claimed by the husband, wife or civil partner of the deceased, or the parents of a deceased child who was under the age of 18 at the time of death, who had never been married or in a civil partnership. This is further limited to only the mother being able to claim if the deceased child was “illegitimate”.
The Court of Appeal case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and the Secretary of State for Justice (2017) found that excluding unmarried, cohabiting partners from claiming the statutory bereavement award was incompatible with the European Convention on Human Rights and prompted a change in the law. Thereafter, Government reforms came into force on 6 October 2020, under the Fatal Accidents Act 1976 (Remedial) Order 2020. This extended the scope of eligible claimants to unmarried cohabitees who were living in the same household as the deceased, immediately before the date of death, and had lived together for at least two years prior to the death.
Despite these reforms, many relatives are still unable to claim the award following the loss of their loved one. For example, a parent cannot claim for the death of a child if they were over the age of 18 when they died, a child cannot claim for the death of a parent, and a cohabitee cannot claim if they haven’t lived together for more than two years.
In other countries, there is both a much wider class of relatives who are entitled to claim, and the awards are generally much higher. In Northern Ireland, for example, the bereavement award is £17,200 and in Scotland, there is no limit set for the bereavement award.
The unfairness of this situation was underlined by the recent case of Haggerty-Garton & five others v Imperial Chemical Industries Ltd (2021) in which the Deceased had died of an asbestos-related illness. This case was heard before the English Courts as the Deceased lived in England. However, as the exposure had occurred in Scotland, Scottish laws applied. The Widow was awarded £115,000, their sons were awarded between £35,000 and £40,000 and five further relatives were also awarded damages before the Trial. Had this been heard in the English Courts, only the widow would have been awarded anything and that would have been limited to the statutory award of £12,980.
It is therefore obvious to most that there is a great injustice happening in the English, Welsh and Northern Irish legal system.
Time for change
The Association of Personal Injury Lawyers (APIL) has long campaigned for reforms to the current laws concerning bereavement damages.
In April 2021, they launched a bereavement damages report entitled ‘Bereavement Damages: A Dis-United Kingdom’, which sets out the postcode lottery in respect of the law across the UK and shares stories from some of those who have been affected by these laws. APIL continue to campaign for the law in England, Wales, and Northern Ireland to be changed to reflect the law in Scotland and has set up a webpage dedicated to this campaign.
Labour MP Lilian Greenwood asked the Ministry of Justice to consider extending the eligibility for bereavement damages to include unmarried fathers or fathers not in a civil partnership along with their child’s mothers. In response, the Ministry of Justice informed the Parliament’s Joint Committee on Human Rights in 2020 that it would “consider the merits” of revising these laws “when a suitable opportunity arises”. Fast forward to 2023, this no longer appears to be the case.
In response to the recent comments made by Mr Agar, APIL commented that it was a “sickening display of indifference towards grieving relatives”. In a press release issued by the organisation, APIL President, John McQuater, commented:
“The Government’s reluctance even to consider further reform is a snub to bereaved families, and flies in the face of consistent calls for modernisation of the law…”
Adding:
“Far too many bereft relatives are cut out of the law on bereavement damages and this needs to change. Those eligible are spouses and civil partners, cohabitees of at least two years, and parents of unmarried children under the age of 18 but only the mother if the parents are not married or in a civil partnership…”
“It leaves no room to recognise other loving relationships.
“The answers and the language used this week demonstrate how deeply flawed the Government’s attitude is to the fabric of modern families…
“And the implication that fathers do not have as close a relationship to their children if they are ‘illegitimate’ is utterly disgraceful.
“More than half of babies born in the UK last year were to unmarried parents. They are being stigmatised and their fathers are completely left out of the law on bereavement when they suffer a parent’s worst nightmare.
“This 40-year-old law is totally out of touch with modern society…
“The Joint Committee on Human Rights made a clear recommendation that reform to the law on statutory bereavement damages is needed, as did the Law Commission before it, but the Government continues to brush the issue under the carpet in a sickening display of indifference to bereaved families”.
How Nelsons can help
Emma Howard is an Associate and Legal Executive in our expert Personal Injury team.
If you have any questions in relation to the topics discussed in this article, please contact Emma or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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