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Reform to Fatal Accident claims - cohabitees to be given new rights

Financial compensation for a bereavement is, arguably, impossible to value and will most likely always feel like a trite sum.

Yet, there is a legal financial remedy offered via the Fatal Accidents Act 1976 – the legislation which governs civil claims for damages where a death is caused by the wrongful act or omission of another person.

The Act provides for a lump sum payment called “Bereavement Damages”.  This is a sum of money separate from any claim for the loss of any income depended on, or for the cost of funeral expenses.

Eligibility for this payment is limited and is prescribed in the 1976 Act. Payment can only be made to a certain category of family member.

Spouses and civil partners can claim, as can parents who lose a child under 18.  Currently, the Act  does not allow the partner of the deceased to make a claim if they lived with the deceased but were not married or in a civil partnership. It also does not pay out to the children of the deceased, if the surviving parent is ineligible – for example because they are divorced.

At the end of 2017 the Court of Appeal decided  that excluding cohabitees from entitlement was incompatible with the European Convention on Human Rights. In May 2019, the Ministry of Justice confirmed that it will use a Remedial Order to seek the approval of Parliament for a change in the law so 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

This will result in an amendment to the Act for the benefit of a wider group of claimants. The change will arguably bring a greater level of fairness to the process. 

Cohabitees will, however, have to prove their entitlement (for example evidence of sharing the household expenses, co-ownership etc). This could provide an area of contention in terms of what evidence will be satisfactory. No doubt the Courts will be required to review this and provide clarity for compensators and claimants in the future.

Missed opportunity?

The reform does not address the anomaly of ineligible children. It also still leaves open the question as to why the lump sum payment for Bereavement Damages (currently £12,980) is such a relatively low figure.  The lump sum award has not been updated since March 2013.

For any more information please contact Flora Wood from our Personal Injury Team on f.wood@ashfords.co.uk

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