39.We consider that the fundamental principle underlying the Court of Appeal’s judgment is that cohabiting partners are analogous to married and civil partners in the context of the bereavement damages scheme. We note, however, that the language of proposed section 1A(2A)(c) of the Order, and the existing provision dealing with dependency damages (section 1, FAA), intimates a differential hierarchy between the different forms of relationship. Section 1A(2A)(c) defines cohabiting couples as persons living “as the husband or wife or civil partner of the deceased.” This definition implies that cohabitation is an imitation of marriage or civil partnership, rather than an equal alternative.
40.We recognise that the definition of “civil partners” in the proposed draft Order simply reflects the existing language in section 1 of the FAA, but we suggest that it would be preferable to review the language used in all provisions of the FAA to describe persons in cohabiting relationships to ensure that the language reflects the equality of their status. We suggest the language used in the Adoption and Children Act 2002, for example, is preferable. Section 144(4) defines a “couple” as a married couple, civil partners or “two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.”
41.The proposed draft Remedial Order imposes a qualifying time period of two years on cohabiting couples. This reflects the position of cohabiting couples in section 1(3) of the Act which provides for eligibility to claim dependency damages. There is no such qualifying time period requirement for married couples or civil partners.
42.We note that the law in Scotland allows a claim for bereavement damages by a cohabitee without the need for a minimum cohabitation period. Given the opportunity to look at this legislation afresh, the policy grounds for the length of qualifying period need to be justified. We are grateful to Department officials who have clarified that they consider that it is reasonable to set a limit which objectively evidences a relationship of permanence and commitment and avoids intrusive enquiries into the quality and durability of the relationship in individual cases.
43.Bearing in mind the requirement to justify any differential treatment, the Government may wish to put forward official policy reasons for imposing a timeframe on cohabiting couples, which is not imposed on married or civilly partnered couples, in its response to this Report. This will mean this policy decision can be properly scrutinised. In our view, the application of any qualifying period will, to some extent, draw an arbitrary line, but will provide a necessary filter for identifying relationships of sufficient permanence and commitment. Whilst is it recognised that there must be objective criteria for cohabiting couples equivalent to that of the commitment shown by married couples and civil partners, we are concerned that the inclusion of a time period of two years may not always be the most appropriate qualifying factor. Without clear justification for treating cohabiting couples differently, we suggest that the definition of eligible cohabiting couples should be reconsidered.
44.The proposed draft Order provides for bereavement damages to be shared when there is more than one eligible claimant. This issue was not considered by the Court of Appeal in the Smith case. This provision is not necessary for the purpose of remedying the incompatibility; it is, however, a consequential provision and may therefore be made under Schedule 2, paragraph 1(1), of the HRA.
45.Whilst this approach may make sense in some cases, the equal division of damages between certain eligible claimants may arguably lead to unfairness. For example, the required information states that bereavement damages will be divided equally between a cohabiting partner (of at least two years) and a spouse who is not yet divorced. The policy rationale for this provision has not been addressed in the Explanatory Memorandum or required information. However, we are grateful to Department officials for clarifying their position. Firstly, the Department considers it desirable to avoid the potential for intrusive enquiries into the quality and durability of an eligible relationship, or the respective merits of two eligible claimants. Secondly, the Department considers that cases involving both a qualifying cohabitant and a spouse who is not yet divorced are likely to be rare; when such a situation does arise, dividing the award equally is the fairest approach.
46.Whilst we agree that it is preferable to avoid intrusive enquiries into personal relationships, in circumstances where the deceased had settled with a new cohabiting partner of at least two years duration, but remained in the midst of a divorce settlement, there may be some cases where awarding damages to the spouse is unfair given the purpose of the award of damages is to compensate for grief following the loss of an intimate, stable and long-term personal relationship.
47.Whilst the proposed draft Remedial Order addresses the specific discrimination against cohabiting couples, the Government may wish to take this opportunity to consider the wider problems of discrimination within the bereavement damages scheme. It is noted that the list of eligible claimants is narrowly drawn. At present, only the following persons are eligible:
a)the wife, husband, or civil partner of the deceased;
b)parents, where the deceased is a ”legitimate” unmarried/unpartnered minor;
c)a mother, where the deceased is “not a legitimate” unmarried/unpartnered minor.
48.There are numerous problems with the current eligibility restrictions to bereavement damages:
a)Firstly, the reference to children as “legitimate” or “not legitimate” is archaic and stigmatising. Children should not be referred to as illegitimate and labelled differently based on the marital status of their parents.
b)Secondly, where a child is deemed “not legitimate”, only the mother is eligible to claim bereavement damages. This restriction discriminates against fathers whose children were born outside of wedlock. The death of a child will be the source of profound grief irrespective of the marital status of the parents.
c)Thirdly, whilst parents are eligible to claim bereavement damages following the death of a child, children are not eligible following the death of a parent. Children are likely to suffer grief following the death of a parent.
d)Fourthly, the right of the parents to claim bereavement damages following the death of a child is restricted to unmarried/unpartnered children who are minors. The grief of a parent will be no less following the loss of a child who is over the age of 18, or a child who has married or entered a civil partnership.
e)Fifthly, if it is accepted that those closest to the deceased are those who should be compensated for grief following wrongful death, the omission of siblings, who are also immediate family members, appears unjustified.
f)Sixthly, there may be couples in a relationship of permanence and commitment who are engaged to be married but who have chosen not to cohabit prior to marriage, for personal, familial or religious reasons, whose grief would be equivalent to that of cohabiting couples.
49.Whilst we recognise that the categories of eligible persons must be limited to those family members closest to the deceased, and therefore those most likely to suffer grief, the current list of eligible claimants is unprincipled, discriminates against other family members in analogous positions to existing eligible claimants and stigmatises children. Although no declarations of incompatibility have been made in respect of other family members, we consider that section 1A as currently drafted risks further legal challenge.
50.Finally, the extent and territorial application of this instrument is limited to England and Wales. We note that bereavement damages differ across the various jurisdictions. For example, in Northern Ireland, the same eligibility criteria apply as in England and Wales but the amount in Northern Ireland is £15,100 compared with £12,980 in England and Wales. Conversely, in Scotland, the Damages (Scotland) Act 1976 and the subsequent consolidating Damages (Scotland) Act 2011 provide that each claim should be treated individually. The amounts awarded in Scotland are determined by legal precedent and an examination of the relationship, to ensure that any payments are fair.
51.The Government may wish to use this opportunity to review the level of the award for bereavement damages and consider whether such damages should be assessed on a case-by-case basis, in the same way as other forms of general damages, such as the award for pain, suffering and loss of amenity made in non-fatal personal injury cases.
52.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. Wider reform of the FAA would fall outside of the scope of the Government’s remedial order powers and would therefore require primary legislation.
53.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, the equal division of damages between separated spouses and cohabiting partners could lead to unfairness. Fourthly, we are concerned that section 1A of the FAA remains stigmatising towards children. We recommend that references to children as “not legitimate” should be removed from the statute.
54.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 where there is a genuine close relationship: 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
55.Finally, there are two drafting points for the Department to note:
a)The preamble should cite the full conditions precedent from section 10 of the 1998 Act including, in this case, the expiry for the time for bringing an appeal and the absence of an appeal.
b)The correct numbering for an insertion between section 1A(2)(a) and section 1A(2)(b) is “(aa)” and not “(ab)”.
32 Adoption and Children Act 2002,
33 Damages (Scotland) Act 2011,
34 Correspondence between JCHR lawyers and Department Officials, June 2019 [not available online]
35 Ministry of Justice, , May 2019
36 Correspondence between JCHR lawyers and Department Officials, June 2019 [not available online]
37 Made SIs: Damages for Bereavement (Variation of Sum) Order (Northern Ireland) 2019 ()
39 () Thompson Solicitors; () Association of Personal Injury Lawyers
40 For precedent see the Made SIs: Asylum and Immigration (Treatment of Claimants etc) Act 2004 (Remedial) Order. (). The National Archives, , 5th Edition, November 2019, para 3.11.28.
41 The National Archives, , 5th Edition, November 2019
Published: by authority of the House of Commons