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Bereavement damages and cohabiting partners

by Sara Hunt & Sarah Harper

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No amount of money can ever truly compensate someone for the loss of a loved one. A claim can, however, help a grieving family obtain some justice if the death was avoidable and caused as a result of someone’s negligence or misconduct.

The law recognises that there are certain claims that the bereaved family members can make, but many have maintained that the law doesn’t go far enough and is it out of touch with family life in today’s society.

A landmark Court of Appeal ruling in November 2017 may not have made a lot of headlines – indeed a lot of people may still be unaware if it – but the difference it could make to unmarried couples whose partner dies as a result of medical negligence, industrial accident or personal injury could be significant.

The Fatal Accidents Act 1976

The Act enables bereavement damages to be claimed by a husband, wife or civil partner (since 2004) of the deceased. The amount is fixed and is currently £12,980 and it is paid out if death was due to medical negligence, industrial accident or any other kind of fatal personal injury where an organisation or individual was at fault. The only other persons who can claim these damages in England and Wales are the parents of children under the age of 18 (where the child is not married).

This should not be confused with the one-off, tax-free, lump-sum payment of £2,000 Bereavement Benefit the state makes to any surviving spouse if their husband, wife or civil partner died before 6 April 2017 and paid enough National Insurance contributions or died because of an industrial accident or disease.

Under Scottish law, cohabitees as well a married couples have been able to claim bereavement damages since 2011 and the Law Commission has previously advocated a similar change in England and Wales.

Is a cohabiting relationship equal in every respect to a marriage?

The Fatal Accidents Act does allow cohabitees who had lived together as husband and wife for two years or more immediately before the death to make a claim for financial or other dependency on the deceased. However, couples who have been cohabiting for long periods of time are still unable to claim bereavement damages. Bringing the law into line with the law on dependency damages for cohabitees would surely be both logical and a recognition that they too have suffered a loss, yet the Act does not provide for this.

The case of Jacqueline Smith v Lancashire Teaching Hospital NHS Foundation Trust & Others [2017]

The Court of Appeal ruling may have paved the way for change. Jacqueline Smith was pursuing a claim in relation to her partner’s death. It was admitted his death had been caused as a result of medical negligence. However, despite the fact she had lived with her partner for 11 years as husband and wife, she could not claim the bereavement award as they were not married.
Ms Smith appealed under the Human Rights Act (HRA) arguing that she was being discriminated against because she was unmarried and was being denied her right to a family life - articles 8 and 14 of the European Convention on Human Rights (ECHR).

The High Court had previously dismissed her claim, ruling that there was no incompatibility between the 1976 Fatal Accidents Act (which sets out the compensation rules) and Ms Smith's rights under the ECHR.

No justification for discrimination against cohabitees

The Court of Appeal overturned that previous judgement, agreeing with Ms Smiths’ contention that, by her not being able to claim the award, the Fatal Accidents Act was in breach of EHCR and that her right to family life should be enjoyed without discrimination on grounds such as sex, race, birth or other status.

The Court of Appeal’s ruling suggests that, in this area of law at least, in their judgment a cohabiting relationship is equal in every respect to a marriage and that bereavement damages show respect for family life. There was no justification to discriminate against cohabitees, particularly when it was accepted that they could claim for dependency and would experience the same profound grief as a married couple when a loved one dies.

The Ministry of Justice was reported to have noted the judgment and is still considering its implications.

So, can cohabitees now claim bereavement damages?

Sadly, no. A ruling by the Court of Appeal does not affect the validity of the existing legislation. Until the Act is changed, compensators are not obliged to pay bereavement damages. However, in light of the Court of Appeal, decision it is hoped the government will recognise the need to bring this law into line with the realities of modern family life.

Ms Smith’s motivation throughout has been purely a sense of ‘fairness’ – she will not benefit financially, as it is not possible to receive a retrospective payment and she didn’t get a bereavement award in the first place because the hospital had a defence – it was a public authority acting in accordance with an Act of Parliament.

It remains for Parliament to decide whether to change the law and amend Section 1A of the Fatal Accidents Act to include cohabiting couples, bringing the law into line with the law on Dependency Damages, but in a legislative session crammed with BREXIT-Bills, it is by no means certain that this issue will be high on the agenda. So, while Ms Smith may well have won this battle, cohabiting couples have not yet won the war.

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