17 July, 2019
A Joint Committee on Human Rights has welcomed the proposed draft Fatal Accidents Act 1976 (Remedial) Order 2019 ("the Remedial Order") to extend the right to claim bereavement damages to cohabiting couples. The Committee notes that it is regrettable that it has taken twenty years following the Law Commission's Report in 1999, and a declaration of incompatibility in November 2017, before laying the proposed draft Order before Parliament.
Under the proposals, a person who has cohabited with the deceased person for a period of at least 2 years immediately prior to the death will be entitled to claim an award for bereavement damages. It also provides that in instances 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) the award should be divided equally between the eligible claimants.
The proposed Remedial Order rectifies an incompatibility with the European Convention on Human Rights 1950 identified by the Court of Appeal and implements the landmark judgment from Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors ( EWCA Civ 1916.
Notably, the Joint Committee suggests 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 as a whole. In particular, it suggests that the Government should explore whether the Scottish model of assessing damages on a case-by-case basis is fairer than the current lump sum model used in England, Wales and Northern Ireland.