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UK: Bereavement award must be made available to cohabitants, says EWCA

The law preventing unmarried persons from claiming the statutory bereavement award from a third party whose negligence causes their partner's death is incompatible with the European Convention of Human Rights, the England and Wales Court of Appeal has ruled.

The bereavement award is a statutory sum of GBP12,980 payable to a spouse or civil partner, from a defendant whose negligence has caused a person's death.

The relevant legislation is the Fatal Accidents Act 1976, which restricts the award to spouses and, since 2004, civil partners. Cohabitants are excluded.

In 2009, following a Law Commission recommendation, the Labour government tabled an amendment that would have added couples who had cohabited for two years or more. However, it was shelved due to lack of time. Now, the 1976 Act's exclusion of cohabitants has been successfully challenged in the England and Wales Court of Appeal, though the litigant will not personally gain from her victory.

The case was brought by Jakki Smith, who had cohabited with John Bulloch from 2000 until his death, from medical negligence, in 2011. Smith made a claim against the Lancashire Teaching Hospitals NHS Foundation Trust, whose error was responsible for Bulloch's death. Being ineligible for the bereavement award, Smith joined the Secretary of State for Health as defendant, seeking a declaration of the law's incompatibility with the family life and discrimination sections of the Convention.

At first instance, the High Court found against her claim, on the basis that the Convention did not require signatory states to have a bereavement regime, and that the discrimination between married and unmarried couples was not sufficiently linked to the right of family and private life, and was not sufficiently serious to breach the Convention. The High Court judge did, however, criticise the law for having no justification.

Smith was granted permission to appeal in light of the Court of Appeal's February 2017 decision in the Steinfeld case. Her argument focused on the link between the discrimination and the right to family life. The Secretary of State did not attempt to argue a justification for the difference, as they had done in the High Court. Instead, they contended that she was not in a comparable position to a widow.

This was rejected. The Court of Appeal decided that the High Court must have either 'misunderstood the nature of the test or reached a conclusion which was not open to [it] on the facts'. It duly made the declaration of incompatibility with the Convention (Smith v Lancashire Teaching Hospitals NHS Trust, 2017 EWCA Civ 1916).

However, the court was unable to award Smith damages equivalent to the bereavement award, because the hospital had the defence that it is a public authority acting in accordance with an Act of Parliament.

'Although this decision is a step in the right direction [for cohabitees], the situation will not change until the Fatal Accidents Act1976 is amended', commented Janice Gardner of law firm Russell Cooke. 'Clearly the government will now come under pressure to table such amendments but a policy decision will need to be made. It is probably a little early to set off celebratory fireworks.'

Sources

BAILII
Russell Cooke
The Times Brief
BBC News
Steinfeld judgment

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This article incorporates material originally published by STEP in their UK News Digest of Thursday, 30 November, 2017 and is reproduced with their permission. To view STEP news items please click here.

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