Bereavement damages in England and Wales

Bereavement damages are a form of compensation which is payable to certain limited categories of relatives following the unlawful death of a loved one, arising from a fatal accident, wrongful act and/or neglect.

The award itself arises from the Fatal Accidents Act 1976 (the Act), which allows cohabitees to claim for dependency, but does not allow them to claim bereavement damages. The Act has seen a number of changes on the amount of the award and to whom this is payable to (described as dependants in the Act).

With these factors in mind, we will consider who is identified as a dependant and how much the award is.

At present, the husband, wife, or civil partner of the deceased can obtain the bereavement award. In addition, the parents of a deceased child can claim in certain circumstances. If the child was ‘illegitimate’, only the mother can claim. 

Calls for reform

In 2017, in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916. The Court of Appeal found the existing law that applied to unmarried cohabiting partners was incompatible with the European Convention on Human Rights (ECHR). This prompted calls for much needed changes in the law and reforms to the Act.

The Fatal Accidents Act 1976 (Remedial) Order 2020, saw some changes which included that cohabiting partners may have the right to claim for bereavement damages in some cases.

Henceforth, the current law (in England and Wales) only identifies the following relatives can claim for a bereavement award:

1.      Only the spouse or civil partner of the deceased.

2.      A civil partner who was living with the deceased for at least two years (a cohabitee).

3.      the parents of a deceased child (under 18 years) and was never married or in a civil relationship (or, if the child is ‘illegitimate’, the mother only).

Whereas in Scotland, spouses, children, grandparents and grandchildren are all entitled to claim for a bereavement award.

In May 2020, the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, increased the bereavement award for all deaths followin^g 1st May 2020, from a fixed award of £12,980 to £15,120. The recent increase in award is a step in the right direction but many consider the award should not be limited but rather assessed on a case-by-case basis as seen in Scotland, where similar awards have been paid as high as £90,000, six times the fixed amount in England and Wales.

In essence, the Act places the value of losing a loved one at £15,120. In contrast, in the US, awards to compensate family members when a loved one dies in consequence of the fault of another can run into very substantial seven figure sums. In addition, in other countries such as France, the eligibility to be compensated for a loved one’s death is far wider than our comparatively restricted law.

It is then important to mention who is not considered a dependant. In England and Wales, the following relatives are not entitled to claim for a bereavement award under the current law:

1.      An unmarried father of a child under the age of 18.

2.      Parents of an adult child who is over the age of 18.

3.      Children who have lost a parent.

4.      Siblings.

5.      Grandparents.

Unmarried fathers

It is likely a challenge to the ‘illegitimate’ exception for fathers would result in a further declaration of incompatibility with the European Convention on Human Rights (ECHR).  

It is, some would say, incredibly outdated that the father receives no compensation because he had not married his child’s mother before their child died. It is also difficult to see how this legislation can be seen as consistent with the Equalities Act 2010 which provides that gender is a ‘protected characteristic’ which cannot be discriminated against. 

The Association of Personal Injury Lawyers (APIL) has long-campaigned for changes in the law on how bereavement damages are awarded. In April 2021, APIL issued a report entitled Bereavement damages: A Dis-United Kingdom which calls for changes in the law, to adopt the approach taken by Scotland where bereavement awards are recognised across all relationships without a rigid category, without discrimination and disparity.  In this report, Sam Elsby, Former President of APIL argues the current law is “rigid, discriminatory and woefully out of date.”

On 10 August 2022, APIL published their article Most Fathers Do Not Count in Law on Bereavement. The article refers to the Office of National Statistics (ONS) wherein new data reveals most than half (51.3 per cent) of the babies born in England and Wales last year were born to parents who were not married or in a civil relationship. Under the current law, this means nearly 320,500 unmarried fathers will be denied a bereavement award if their children were killed by an act of wrongdoing.

As catastrophic injury solicitors, we are often instructed by family members of those tragically killed in fatal accidents. It is always extremely difficult and heartbreaking to advise unmarried fathers that the law in England and Wales does not recognise their relationship and still describes their deceased child, born out of wedlock, as ‘illegitimate’. 

The Act is now, of course, over 46 years old. The law has not kept up with the changes in modern society where many couples remain unmarried and have children.

Even in cases where couples do marry, often it would involve a ceremony held abroad or at venues which are not authorised by the UK marriage registrar (such as banqueting halls, hotels and religious and inter-religious ceremonies held outside of a licensed venue). In these instances, the marriages are not recognised in the UK.

In England and Wales, unmarried fathers are not compensated in the same way a married father would be. Similarly, an unmarried father is not compensated the same way an unmarried mother is compensated.

In essence, while there have been some changes to the law over recent years, discrimination and disparity in compensating unmarried fathers evidently remains. The law needs to recognise these forgotten fathers and their right for compensation. John McQuater, president of APIL, said in August 2022: “It has been 40 years since the law was passed and it shows how out of touch it is with society. It is high time for reform.” We certainly endorse that sentiment.

Bilal Hussain and David Withers are serious injury lawyers at Irwin Mitchell irwinmitchell.com

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