Proposed Extension Of Bereavement Damages
The government has presented a draft proposed Remedial Order to amend section 1A of the Fatal Accidents Act 1976 in relation to bereavement damages.
If implemented, the statutory bereavement award will be recoverable by a ‘cohabiting partner’ of the deceased. Where both a spouse and qualifying cohabitee are eligible for the statutory bereavement award, it is proposed that the award will be split equally between them.
Where a death is caused by the wrongful/negligent act or omission of another person, two distinct claims are possible: –
- for the benefit of the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934;
- on behalf of the deceased’s dependants under the Fatal Accidents Act 1976 (FAA).
Section 1A of the FAA provides for a fixed sum of bereavement damages to be awarded to a limited category of persons. The level of the award is set by the Lord Chancellor. In England and Wales, the level of the award has been set at £12,980 since 1 April 2013. Currently, the award is only available to the wife, husband or civil partner of the deceased; and to the parents of a deceased child.
In Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others  EWCA Civ 1916, the Court of Appeal held that section 1A is incompatible with Article 14 and Article 8 of the European Convention on Human Rights because it denies an award of bereavement damages to an individual such as Ms Smith who had lived with the deceased as his unmarried partner for over 2 years immediately prior to his death.
If implemented in its current form, the Remedial Order will add cohabiting partners to the class of claimants eligible to recover bereavement damages, provided that they:
(a) were living with the deceased in the same household immediately before the date of death; and
(b) had been living with the deceased in the same household for at least 2 years before the death; and
(c) were living, during the whole of that period, as the husband or wife or civil partner of the deceased.
In cases 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) it is proposed that the award should be divided equally between the eligible claimants.
The new provisions will apply to causes of action which accrue on or after the day on which the Order comes into force, which is expected to be later this year.
Whilst the proposed changes bring parity between spouses, civil partners and cohabitees, inequality remains in the level of award within the different jurisdictions of the United Kingdom. As of 1st May 2019, the award in Northern Ireland was increased to £15,100. No statutory limit is set in Scotland where such damages are awarded on a case by case basis.