Background

John Bulloch died when the doctors treating him failed to identify an infection which eventually spread to his brain. He was survived by his partner, Jakki Smith, with whom he had shared 16 years of his life. Following his death, Jakki discovered that she was ineligible for the statutory bereavement award/bereavement damages on the basis that she and John had not been married. She is now bringing a challenge against the government on the grounds that this rule:

  • interferes with her right to a private life (Article 8 of the European Convention on Human rights (ECHR)); and
  • discriminates against her due to her marital status (or lack thereof) (Article 14 ECHR).

What is the bereavement award?

A claim for the bereavement award can be made under the Fatal Accidents Act 1976 (‘the Act’) where a person’s death is attributable to another’s negligence. For instance, when making a claim, Jakki would need to have demonstrated that the hospital caring for John owed him a duty of care, that they had breached that duty (eg. by negligently failing to diagnose the infection) and that such a breach caused his death.

Unlike with a dependency claim under the Act, which is concerned with obtaining financial provision for the deceased’s dependants, the bereavement award only entitles the claimant to a fixed lump sum of £12,980.00 if the death occurred on or after 1 April 2013, and £11,800.00 if it took place beforehand.

The claim is time-limited, which means that the award can only be sought within three years following the death, or within three years from the first date of realisation that the death was caused by negligence.

Jakki’s primary issue with the award is that it only applies to a very narrow class of applicants, namely spouses/civil partners, parents of a deceased child born in wedlock, or the mother where the deceased child was “illegitimate”. Therefore, children of the deceased, siblings and unmarried partners, are among those barred from making a claim for bereavement damages.

What to do when you have suffered a bereavement?

It can be very hard to think of practicalities when a loved one has past-away. The suggestion that he or she did not receive the right medical care, alongside the medical jargon, reports and meetings with those responsible can make the situation even more devastating. For most, finding out what happened is the priority. All NHS trusts and private hospitals have a complaints procedure where you will be able to ask questions and, hopefully, find out what went wrong. This can be an intimidating experience and it may be a good idea to contact an advocate or the hospital’s Patient Advice Liaison Service (if the care was provided by the NHS), who will be able to offer support and act as a translator throughout the process. There is a limitation period for bringing a complaint, which is 12 months from the death, or 12 months from the date of knowledge that there was negligence.

The complaints process can be the preferred route for grieving loved ones seeking answers, or even in offering a form of “narrative therapy”. It is free, and aims to find an explanation for the death. Other possible resolutions through the complaints process may involve an apology, a review of procedure or policy and, in some circumstances, financial compensation. However, it is usually advisable to seek legal advice before accepting an offer of compensation, as it may bar any subsequent claim against the care provider.

If it appears that the care provider has not fully atoned for the death of a loved one through the complaints process, it may then be appropriate to take legal action. At £12,980.00, the compensation available via the bereavement award falls significantly short of reflecting the pain and suffering of a grieving relative, and should not be pursued without considerable thought.

Fatal accident claims in the future

For some, the bereavement award signifies an apology or acknowledgement by the healthcare provider that their error caused immeasurable grief to those close to the deceased. Unmarried partners such as Jakki may feel that in being denied this award, their relationship with the deceased is not recognised, and the pain and suffering they have experienced is belittled.

The narrow application of the award fails to reflect a changing society. For many, marriage is unnecessary, undesirable and unaffordable and increasingly couples are choosing to co-habit rather than to legalise their commitment. Indeed, Jakki is not the first unmarried partner to challenge the law’s approach to unmarried couples. Following the death of her partner and father of their two children, Siobhan McLaughlin was denied access to bereavement benefits on the basis of her marital status and was able to bring a successful claim against the government in Northern Ireland on the grounds that her human rights had been breached.

It should be noted that where Siobhan McLaughlin sought a state benefit from the government in Northern Ireland, Jakki is seeking a compensatory award in England, and the Courts may consider these distinctions significant. Moreover, if the award did apply to unmarried couples, how would that relationship be defined under the act? It could have the same description as under the dependency award, namely, someone who had been living with the deceased as husband and wife for two years before the death. But how far does this go to accurately represent a meaningful relationship?

If Jakki is successful in her human rights claim, she will have struck an important blow for relationship equality before the law. However, what class of unmarried applicant will then be entitled to apply for the bereavement award remains unclear, and what possible recompense this can offer to a grieving loved one seems even more ambiguous.