Bereavement Award22 May 2019 | Nicholas Leahy
A Historic Decision
In the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916, the Court of Appeal held that the current law on bereavement damages was incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights. The Claimant, Ms Smith, had argued that Section 1A(2)(a) of the Fatal Accidents Act 1976, which allows a claim for bereavement damages for the benefit of married couples or civil partners, but not to unmarried cohabiting couples, discriminated against her as an unmarried person. As such, Ms Smith argued that the provision was incompatible with her Convention rights. The decision of the Court of Appeal (Ms Smith’s claim having been previously dismissed by the High Court in 2016) was hailed as an historic one and Ms Smith’s lawyer called for Parliament to change the law and “bring bereavement legislation into the 21st century” in the aftermath of the judgment.
In order to bring the decision of the court into practical effect, legislative change is required. This can be brought about either by primary legislation being implemented through parliament, or by a Remedial Order under Section 10 of the Human Rights Act 1998 to amend existing primary legislation. With the existing pressures on parliamentary time as a result of Brexit, it is unlikely that such primary legislation would have passed without considerable delay.
Finally, on 8 May 2019, the Ministry of Justice (MOJ) announced a proposed Remedial Order providing for the award of bereavement damages under Section 1A of the Fatal Accidents Act 1976 to be available to a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death. The Remedial Order also provides that where both a qualifying cohabitant and a spouse are eligible (for example 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) the award will be divided equally between the two eligible claimants.
Before the changes come into place, the proposal is laid before Parliament for 60 days during which time representations can be made. Following this, the draft order with any revisions the Government wishes to make must be laid for a further 60 days. It must then be approved by a resolution of each House of Parliament before coming into effect. Despite this small delay, the changes have been praised by lawyers working on fatal accident cases across the profession. The President of the Association of Personal Injury Lawyers (APIL), Brett Dixon, commented:
“So far bereaved partners have been ignored by the law just because they are not married…today’s news is a small but significant step into bringing the system for acknowledging needless bereavement out of the dark ages”.
More Change Needed
Whilst the above changes have been welcomed, it is clear that the law on bereavement damages as it currently stands in England and Wales is unfair and lags behind that of other advanced jurisdictions.
The current level of the statutory award for bereavement damages in England and Wales is £12,980, a figure that shocks relatives of many people who have been involved in a fatal accident caused by someone else’s wrongdoing. By comparison, in Scotland there are no fixed statutory limits on the amount payable, with cases considered on their own individual merits. Past awards in Scotland include sums of £80,000 for widows, £35,000 for adult children, £30,000 for siblings up to £86,000 for parents and between £2,500-£18,000 for grandchildren. Whilst no amount of money can adequately compensate for the loss of a loved one, the figure as it stands in England and Wales seems woefully low.
There have been numerous calls in recent years for legislative change to increase the amount of the bereavement award in England and Wales however to date the figure remains at £12,980. A survey by APIL found that a majority of people thought that bereavement damages should be more than £100,000 while three quarters of people also supported levels of awards being set on a case by case basis.
In addition to the low amount of the award, there have also been calls to widen the category of those eligible to receive such an award. At present, under S1A(2)(a)-(b) of the Fatal Accidents Act 1976, only spouses/civil partners of the deceased, and parents of an unmarried minor who is deceased, are entitled to such an award. Again, this compares unfavourably with Scotland, where spouses, civil partners, cohabitees, parents, children, brothers and sisters, grandparents and grandchildren of the deceased are all entitled to an award. Further, whilst in England and Wales a single award of £12,980 is all that can be made, in Scotland, each qualifying relative is entitled to an award in their own right.
The decision of the MOJ to propose a Remedial Order to give the judgment of the CoA in Smith v Lancashire practical effect is a welcome one, but it remains clear that further change is needed to ensure that bereaved families are treated fairly.