Court of Appeal declares current Statutory Bereavement Award regime incompatible with ECHR
29th November, 2017
The closed categories of persons who can be awarded the Statutory Bereavement Award pursuant to the Fatal Accidents Act 1976 have long been a contentious issue.
Whilst unmarried couples living together can claim special damages for the economic loss caused by a tortious act, they are not eligible for damages in respect of the grief caused by the loss. The award for such loss is currently £12,980 and, under section 1A of the Fatal Accidents Act 1976, is payable only to the spouse or civil partner of the deceased. The other category of persons who can be awarded compensation are the parents of a child under 18 who is not married.
In Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors the Claimant, who had been cohabiting with her partner for 11 years prior to his death in 2011, appealed to the Court of Appeal against the High Court’s dismissal of her claim that section 1A was incompatible with her rights under articles 8 and 14 of the European Convention on Human Rights.
On 24th November 2017, Sir Terence Etherton MR allowed the appeal, holding that the lower court judge had been wrong to hold that the Statutory Bereavement Payment did not fall within the ambit of the right to respect for private and family life guaranteed by Article 8 of the ECHR. The Court of Appeal issued a declaration of section.1A’s incompatibility with the ECHR.
The declaration of incompatibility does not change the applicability of section 1A, it merely notifies Parliament that the current law is in breach of the convention, and thereby places pressure on Parliament to amend the law. Given the discrepancies between the scope section 1A and other compensation schemes for the bereaved, it is possible that any amendment would go further than just the inclusion of cohabitees.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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