Ms. Smith had lived in the same household as her partner for 11 years. They had not married and had not entered into a civil partnership.
After 11 years of co-habitation, Ms. Smith’s partner died as a result of NHS negligence.
If Ms Smith had been married or in a civil partnership with her deceased partner, she would have been entitled to bereavement damages.
Bereavement damages consist of a fixed lump sum payment (£12,980) intended to compensate for grief where death is caused by the wrongful act or omission of another person.
Under section 1A(2)(a) of the Fatal Accidents Act 1976 (FAA), bereavement damages are only available to:
- the wife, husband, or civil partner of the deceased, or,
- where the deceased is a ‘legitimate’ unmarried/unpartnered minor, to his/her parents; or
- where the deceased is ‘not a legitimate’ unmarried/unpartnered minor, to his/her mother.
Ms Smith therefore sought a declaration from the courts that section 1A(2)(a) of the FAA was incompatible with the European Convention on Human Rights (ECHR) as it discriminated against co-habiting couples.
In 2017, the Court of Appeal ruled that this section of the Act was incompatible with Article 14 (prohibition on discrimination) taken together with Article 8 ECHR (right to family life) as it denied bereavement damages to co-habiting partners who had been living together for at least 2 years before one of the partners died.
In particular, the Court considered that Parliament treated cohabitees of at least 2 years as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purpose of dependency damages and that there was no justification for treating cohabiting couples differently for the purpose of bereavement damages.
Unmarried and unpartnered cohabitees feel the same grief at the loss of a long term partner as do married couples and civil partners.
The Government’s proposal for a draft Remedial Order arises from the declaration of incompatibility made by the Court of Appeal in the above case (Smith v Lancashire Teaching Hospitals NHS Foundation Trust).
On 8 May 2019, the Government laid a proposed draft Remedial Order before Parliament to remedy the discrimination.
A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).
The Government proposes to amend the statutory limit on the award of bereavement damages under section 1A FAA.
The Government proposes 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 is eligible (e.g. separated but not divorced), the award would be divided equally.
The entitlement of co-habiting couples to bereavement damages would only apply to cases that arise once the Remedial Order becomes law.
Reporting on the draft proposal
The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act.
The Committee has 60 days to report to each House its recommendation as to whether a draft Order in the same terms as the proposal should be laid before the House.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals.
The deadline for submissions is 31 May 2019.
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