Co-habiting couples to be entitled to bereavement damages

• Report: Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report
• Inquiry: Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report
• Joint Committee on Human Rights

Why current law is incompatible with Human Rights law

This draft Remedial Order arises from a declaration of incompatibility made by the Court of Appeal in 2017, where a claimant's co-habiting partner of eleven years died as a result of NHS negligence. The Claimant was told she was not eligible to claim bereavement damages as she was not the wife or civil partner of the deceased.

The Court of Appeal held that the section of the Act providing for bereavement damages is incompatible with Article 14 (prohibition on discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), as it denies bereavement damages to cohabiting partners (who have been living together for at least 2 years prior to the death).

The Court considered that as Parliament treated cohabitees (of two or more years) as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purpose of dependency damages there was no justification for treating cohabiting couples differently for the purpose of bereavement damages.

The grief caused by the death of a stable and long-term partner is the same whether the couple had been married, civil partners, or cohabiting.

Purpose of Remedial Order

In response, the Government laid this draft Remedial Order, which aims to make two key changes:

• to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death; and
• where both a qualifying cohabitant and a spouse are eligible (e.g. a couple are separated but not divorced, and the deceased cohabited with a new partner), the award would be divided equally.

Though the Committee is pleased that the draft Remedial Order remedies the unlawful discrimination in section 1A of the FAA as identified by the Court of Appeal, it remains concerned that the legislation is still vulnerable to future legal challenges.

The Committee has already raised concerns about other forms of discrimination within the FAA that need to be rectified, yet the Government has not accepted any of the recommendations of the Committee, with the exception of an acknowledgement that references to children as illegitimate are inappropriate.

As such, the Committee still remains concerned about specific aspects of the bereavement damages scheme, including:

• The Committee recommended that the language used to define cohabiting couples should not be based upon an intimation of married couples and civil partners. The Committee therefore suggested that the Government could consider adopting the definition of cohabiting couples as “two people living as partners in an enduring relationship”;
• The Committee concluded that a qualifying time period of two years for cohabiting couples was not necessarily a fair indicator of a permanent and loyal relationship. The Committee suggested that this requirement should be removed;
• The Committee was concerned that the equal division of damages between certain eligible claimants may, in some cases, lead to unfairness. For example, bereavement damages would be shared equally between a bereaved cohabiting partner (of at least two years) and a spouse who is not yet divorced. Given the purpose of the award is to compensate for grief following the loss of an intimate and long-term personal relationship, this could be unfair in circumstances where the deceased remained in the midst of a protracted divorce settlement, but had re-settled in a new intimate relationship with a cohabiting partner of at least two years;
• The Committee is concerned that section 1A of the FAA remains stigmatising towards children and recommended that references to children as illegitimate (i.e. born outside of wedlock or civil partnership) should be removed from the statute.
• The Committee believe that section 1A of the FAA remains discriminatory against certain close family members, such as cohabiting fathers who lose a child.
• The Committee therefore suggested 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.

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