The government is, at long last, putting forward a draft remedial order to amend Section 1A of the Fatal Accidents Act 1976. This would allow cohabitees, who have been living together for more than two years, to recover the statutory bereavement payment.
THE STATUTORY BEREAVEMENT PAYMENT
The bereavement payment is only available to a very limited class of claimants. This is set out in Section 1A of the Fatal Accidents Act 1976.
A claim for damages for bereavement shall only be for the benefit—
(a)of the wife or husband or civil partner of the deceased; and
(b)where the deceased was a minor who was never married or a civil partner—
(i)of his parents, if he was legitimate; and
(ii)of his mother, if he was illegitimate.
DECLARED INCOMPATIBLE WITH SECTION 4
In Smith v Lancashire Teaching Hospitals NHS Foundation Trust& Ors (Rev 2)  EWCA Civ 1916 the Court of Appeal found that that failing to include cohabitees who had been living together for two years or more prior to death was incompatible with Article 14 Section 3 of the Human Rights Act and made a declaration under Section 4 of that Act. Cohabitees (which includes same-sex couples) are defined as dependants in the Act, but are excluded from the bereavement payment.
THE PROPOSED AMENDMENT
The proposed amendment to Section 1A is described as follows:
“The terms of the Remedial Order
The proposed Remedial Order would make a targeted amendment to the FAA which
would have the effect that a claimant who cohabited with the deceased person for a
period of at least two years immediately prior to the death would be eligible to receive an
award of bereavement damages.
It would also provide 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 provisions would apply to causes of action which accrue on or after the day on which
the Order comes into force.
This would ensure that bereavement damages would be available to individuals in
situations similar to that of Ms Smith and would therefore satisfy the requirements of the
judgment in Smith.”
NOTE THE TWO ELEMENTS
- A qualifying cohabitant would be eligible.
- If there are two people entitled to the bereavement award (a cohabitant and a spouse where the couple did not divorce) then the bereavement payment would be split equally between them.
The new eligibility will apply from the date of the amended statute, it will not be retrospective.
EARLY NOTICE OF COURSES ON FATAL ACCIDENTS LATER THIS YEAR
- London – 7th November 2019.
- Manchester 28th November 2019.
- Bristol 3rd December 2019.
I am presenting with solicitor and partner in Irwin Mitchell, Hilary Wetherell a day long course on fatal accidents.
This course will take you through every element of a fatal accident claim, with particular emphasis on the compassionate handling of bereaved families and careful client care.
“The course will cover: (in addition to what should then be the “new” law in relation to bereavement payments. Details are available here.
The law in relation to liability and causation
Investigating the claim, liability, damages and the inquest
Funding the claim – who is the client?
– retainers, drafting them and getting the correct party correctly identified
Who is a dependant?
Valuing the dependency claim
Losses of the deceased prior to death
Damages for injuries to another arising out of the death”
NEW EDITION OF THE GUIDE TO FATAL ACCIDENTS
I am just completing the proofs for the next (the fourth) edition of the APIL Guide to Fatal Accidents. This should be out by the 25th June. Details available here.