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Statutory Bereavement Award Finally Extended to Cohabitees

After a long and arduous journey that started in 2017, The Fatal Accidents Act 1976 (Remedial) Order 2020 is finally set to come into force on the 6th October 2020, providing an amendment to extend the scope of people entitled to statutory bereavement awards, to cohabitees.

The amendment to the law follows the landmark decision handed down on 28th November 2017 by the Court of Appeal, who ruled that cohabiting couples should have an equal right to claim bereavement damages, alongside spouses and civil partners.

The case (Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916) was brought by Jacqueline Smith following the death of her partner, John Bulloch. The couple had cohabited for 11 years, but never married before Mr Bulloch's death in October 2011 arising out of clinical negligence. The Court of Appeal accepted that their relationship was equal in every respect to a marriage and made a declaration of incompatibility in relation to section 1A of the Act, on the basis that limiting the category of 'persons' eligible for bereavement damages to the wife, husband or civil partner of the deceased was contrary to Article 14 (in conjunction with Article 8) of the European Convention of Human Rights.

As a result, from the 6th October 2020, Section 1A of the Fatal Accidents Act 1976 will be been amended to insert clause "(aa) - of the cohabiting partner of the deceased", which deems to mean:-

• anyone who was living with the deceased in the same household immediately before the date of the death; and
• had been living with the deceased in the same household for at least two years before that date; and
• was living during the whole of that period as the wife or husband or civil partner of the deceased."

This definition also applies to same sex relationships but is not retrospective, so will only apply to deaths that occur after the 6th October 2020.

This amendment to the legislation finally brings the law on bereavement damages into line with the law on dependency damages, which already encompassed both married and cohabiting couples of at least two years as being in a relationship comparable to that of spouses and civil partners. It also brings the law in line with social attitudes towards cohabiting. For an ever increasing number of people there is no material difference between being married and living as a spouse or civil partner, and living as a cohabiting couple. This change to the law brings harmony to the rules on bereavement damages with other policies which recognise cohabiting relationships equally.

Forbes Solicitors have an experienced Personal Injury Claims and Clinical Negligence Team dealing with all aspects of personal injury on a no win, no fee basis. For a free consultation, or to receive further information relating to any of the issues raised in this article, please contact Lisa Atkinson, Associate at Forbes Solicitors direct on 01254 222 448 or another member of the Claims team on 01254 872 111. You can also contact the team via the online Contact form.

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