Article written by Kate Campbell-Gunn, Associate Solicitor

Historically, when a person died as a result of negligence, only a limited class of people could claim for what is known as ‘bereavement damages’. As a result of the Government reviewing the award for bereavement following death in the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, the compensation for a bereavement award has been increased from £12,980 to £15,120 – a small sum for the loss of a loved one.

Historically, to claim for bereavement damages, certain criteria had to be met. You had to be a spouse, civil partner or parent if the child was under 18. This criteria effectively barred cohabiting, unmarried couples from claiming a bereavement award.

Following a legal challenge in the Court of Appeal, in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust; Lancashire Care NHS Foundation Trust; and the Secretary of State for Justice ([2017] EWCA Civ 1916) a finding was made by the Court that the application of section 1A(2)(a) of the Fatal Accidents Act 1976 that only married couples can claim for a bereavement award was incompatible with Article 14 read with Article 8 of the European Convention on Human Rights (ECHR). Mrs Smith had cohabited with the deceased as his unmarried partner for a period of over two years immediately prior to his death.

As a result of this ruling, the Fatal Accidents Act 1976 (Remedial) Order 2020 comes into force on the 6th October 2020. It only applies to deaths on or after that date but it means that now, unmarried couples who have been in a relationship for at least two years are now also included for the purposes of qualifying for a bereavement award.

Section 1(3)(b) of the 1976 Act allows cohabitees to make a claim for bereavement damages subject to certain criteria:

That they were living with the deceased in the same household immediately before the date of the death
That they had been living with the deceased in the same household for at least 2 years before that date
That they were living during the whole of that period as the husband or wife or civil partner of the deceased.

 

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