Bereavement Damages, otherwise known as a Bereavement award is a payment that can be claimed under the Fatal Accidents Act 1976 following the death of a person involved in an accident or illness caused by another. The current award is fixed at £12,980.
There is a very narrow bracket of individuals who can claim the statutory bereavement award, i.e. parents of deceased children under the age of 18 and the deceased’s wife, husband or civil partner. Under the Fatal Accidents Act 1976, section 1A (FAA), an award cannot be made to a deceased’s children, unmarried partner, step-parents or parents of deceased children over the age of 18. This has long been seen as outdated and unfair.
John & Jacqueline Smith
The law was recently challenged by Jacqueline Smith, an NHS worker, after she was denied the statutory award following the death of her partner of 16 years. Her partner died aged 66 in 2011 after an infection was missed by doctors.
The High Court dismissed the claim but the Court of Appeal allowed her appeal. It was argued that the current rules were in breach of Article 8 and 14 of the European Convention on Human Rights and that the award should be available to partners who had been in a relationship for at least 2 years.
The Court of Appeal held that section 1A of the FAA was incompatible with the rights conferred under Article 14 (prohibition of discrimination), read in conjunction with Article 8 (right to respect for private and family life).
“If you are living together the government classes you as a couple for the purpose of payments like council tax and jobseeker’s allowance, so why not when it comes to this?
There’s no longer a taboo around being unmarried. Attitudes have changed, society has moved on and the law needs to be changed to reflect that.
It felt unfair to me because I couldn’t have the bereavement damages. I felt they were saying: ‘You weren’t married, you weren’t bereaved, it didn’t count’. I wanted it to count.”
Zak Golombeck, the lawyer representing Jacqueline said:
“The Court of Appeal have made clear in their judgement that Jakki and John’s relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.
We hope that Parliament will now rectify the incompatibility and bring this legislation into the 21st Century.”
A spokesman for the MOJ said: “We have noted the judgement and are considering it carefully.”
Until legislation is amended by Parliament, what impact the landmark decision will have is unclear. The decision certainly gives hope of a statutory right for unmarried partners to claim bereavement damages in the future.
Furthermore, the decision may well be a catalyst for further human rights challenges to the arbitrary and unfair rules on who can claim bereavement damages.
The case for reform in this area is now stronger than ever.