This proposed draft Remedial Order (“the Remedial Order”) concerns the entitlement to bereavement damages under the Fatal Accidents Act 1976 (“the FAA”). Section 1A(2)(a) of the FAA currently provides that bereavement damages are only available to:
i)the wife, husband or civil partner of the deceased;
ii)parents, where the deceased is a “legitimate” unmarried/unpartnered minor; or
iii)a mother, where the deceased is “not a legitimate” unmarried/unpartnered minor.
This Remedial Order arises from a declaration of incompatibility made by the Court of Appeal in Smith v Lancashire Teaching Hospitals NHS Foundation Trust. In this case, the claimant’s cohabiting partner of eleven years died as a result of NHS negligence. She was not eligible to claim bereavement damages, however, as she was not the wife or civil partner of the deceased.
The Court of Appeal held that section 1A(2)(a) of the Act is incompatible with Article 14 in conjunction with Article 8 of the European Convention on Human Rights (ECHR), as it denies bereavement damages to cohabiting partners (who have been living together for at least two years prior to the death). The Court considered that as Parliament treated cohabitees (of two or more years) as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purpose of dependency damages there was no justification for treating cohabiting couples differently for the purpose of bereavement damages. The grief caused by the death of a stable and long-term partner is the same whether the couple had been married, civil partners or cohabiting.
To remedy the incompatibility, the Government proposes to amend the provision governing the award of bereavement damages under section 1A of the FAA. The Government proposes to make two key changes: (i) to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death; and (ii) where both a qualifying cohabitant and a spouse are eligible (e.g. a couple are separated but not divorced), the award would be divided equally. The provisions would only apply to causes of action which accrue on or after the day on which the Order comes into force.
We welcome the Government’s action in proposing the Remedial Order to remedy the incompatibility in the FAA with the Convention prohibition against discrimination and the right to private and family life. We consider that the procedural requirements of the Human Rights Act 1998 (“the HRA”) have been met and the Government’s reasons for proceeding by way of remedial order rather than by a Bill are sufficiently compelling for the purpose of section 10(2) of the HRA. Remedying the incompatibility by way of a non-urgent order strikes a reasonable balance between avoiding any further undue delay and the need for proper parliamentary scrutiny. The Committee does, however, regret that it has taken twenty years following the Law Commission’s report in 1999 which recommended reform, and a declaration of incompatibility in November 2017, before seeking to remedy the discrimination in May 2019.
In our view, the proposed draft Remedial Order adequately addresses the judgment of the Court of Appeal by extending the bereavement damages scheme to cohabiting couples (who have been living together for at least two years prior to the death), thereby removing the unlawful discrimination in section 1A of the FAA identified by the Court of Appeal.
Although the proposed Remedial Order addresses the specific discrimination identified by the Court of Appeal in Smith, we have various concerns with the bereavement damages scheme as a whole.
Firstly, the language used to define cohabiting couples should not be based upon an intimation of married couples and civil partners. We suggest that the FAA could adopt the definition of cohabiting couples as “two people living as partners in an enduring relationship”.
Secondly, the qualifying time period of two years for cohabiting couples may not always be a fair indicator of a permanent and loyal relationship and we suggest that this should be reconsidered.
Thirdly, we are concerned that the equal division of damages between certain eligible claimants may, in some cases, lead to unfairness. For example, bereavement damages would be shared equally between a cohabiting partner (of at least two years) and a spouse who is not yet divorced. Given the purpose of the award is to compensate for grief following the loss of an intimate and long-term personal relationship, this could be unfair in circumstances where the deceased remained in the midst of a protracted divorce settlement but had re-settled in a new intimate relationship with a cohabiting partner of at least two years.
Fourthly, we are concerned that section 1A of the FAA remains stigmatising towards children. We recommend that references to children as illegitimate should be removed from the statute.
Fifthly, section 1A of the FAA is discriminatory against certain close family members. We therefore suggest that the Government should use this opportunity to look more broadly at the bereavement damages scheme and undertake a consultation with a view to reforming the scheme. The consultation should explore:
a)whether entitlement to bereavement damages should be open to the following family members who have a genuine close relationship with the deceased: fathers grieving the loss of children born outside of wedlock; parents grieving the loss of adult or married children; children grieving the loss of a parent; and siblings grieving the loss of a brother or sister; and
b)whether the Scottish model of assessing damages on a case-by-case basis is fairer than the fixed lump sum model in England, Wales, and Northern Ireland.
Finally, there are two points of drafting to which we draw the Government’s attention.
1 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916
2 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, paras 90–91
Published: by authority of the House of Commons