In a fatal civil compensation claim, the husband, wife or civil partner of the deceased is entitled to receive £12,980.00 by way of a bereavement award as part of the claim under the Fatal Accidents Act 1976 (FAA). However, the FAA does not currently allow cohabiting unmarried partners to claim the award.
Following the decision in Smith v Lancashire Teaching Hospitals NHS Foundation Trust in 2017, the government has proposed a remedial order to amend s1A of the FAA. The order, if approved, will allow cohabitees to claim bereavement damages if they had been cohabiting as partners with the deceased for at least two years immediately prior to the death.
Smith v Lancashire Teaching Hospitals NHS Foundation Trust
Ms Smith had lived with the deceased as his partner for 11 years but they had never married. She was, therefore, not entitled to receive a bereavement award under the FAA.
Ms Smith argued that the FAA discriminated against her right to respect for family life contrary to article 14 and/or 8 of the European Convention of Human Rights, and requested that a declaration of incompatibility be made. The Court of Appeal agreed and made a declaration of incompatibility on the basis that the FAA was inconsistent with the values of modern Britain.
Who will benefit from the order?
A claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death will now be entitled to receive the bereavement award.
Perhaps more controversially, if 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 proposed order says that the award should be divided equally between the wife/husband and the new partner.
As the order is not yet approved, the exact terms of the order are still subject to change.
Remedial Order v Primary Legislation
The judgment is being implemented by way of remedial order (an order to remove an incompatibility between domestic law and a European Convention right).
The alternative would be to implement it by way of primary legislation. However, the government consider that “the current pressure on the legislative timetable means there is little prospect of finding suitable primary legislation to make an amendment in the near future”.
The government consider that the order can be scrutinised under the non-urgent procedure as they believe it will only affect a small number of people.
Timescale for implementation
Under the non-urgent procedure, the proposed remedial order is laid before Parliament for 60 days and representations are made. If the government decides to make any changes the proposed order is laid for another 60 days. Before the order can be officially implemented, both Houses of Parliament must also approve it.
Impact on asbestos-related disease claims
Hugh James run a number of claims where the person suffering from the asbestos-related disease sadly dies either before the claim is commenced or whilst the claim is being investigated.
In these circumstances, Hugh James is able to pursue the claim on behalf of the family of the deceased and the claim is run on a fatal basis.
If the deceased had a husband, wife or civil partner, Hugh James are currently able to claim £12,980.00 bereavement damages as part of the claim.
If the proposed remedial order is approved, Hugh James will also be able to claim for bereavement damages for claimants if they lived with the deceased as their partner for two years or more immediately prior to the death.
A further update will be provided as parliament examines the order over the coming months.
A draft of the proposed order and further details can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799965/draft-remedial-order-fatal-accidents-act-1976.pdf
