The recent case of Jacqueline Smith (suing in her own right & as the surviving partner of John Bulloch, Deceased) v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice once again highlighted just how out of date section 1A of the Fatal Accidents Act 1976 (“the Act”) is.

For many years cohabitees who have been living together like married couples in all but name, have been denied the right to claim the statutory bereavement award currently set at £12,980 following the loss of their partner. It does not stop there; parents of an unmarried adult child are also denied the award. That is only because they do not fit into the very small class of people entitled to claim the award.

Section.1A of the Act quite simply reads:

Bereavement

(1) An action under this Act may consist of or include a claim for damages for bereavement.

(2) A claim for damages for bereavement shall only be for the benefit—

(a) of the wife or husband or civil partner of the deceased; and

(b) where the deceased was a minor who was never married or a civil partner —

(i) of his parents, if he was legitimate; and

(ii) of his mother, if he was illegitimate.

(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.

(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).

(5) The Lord Chancellor may by order made by statutory instrument … amend this section by varying the sum for the time being specified in subsection (3) above.”

Rather bizarrely, whilst cohabitees can be dependants under the Act under section 1 of the Act, if they have been living with the deceased for two years or more prior to death, they are not included in the Act as being entitled to a bereavement payment under section 1A.

In the case of Smith, the claimant brought a dependency claim under section 1 of the Act against the first two defendants for their negligent treatment which resulted in the death of her partner of 11 years in 2011. Liability was admitted and her claim for dependency was compromised. However, due to the exclusion in section 1A of the Act, she did not claim the statutory bereavement award against the first two defendants. Instead, she joined the Secretary of State for Justice as the third defendant so that the claim for bereavement award could be pursued. This was on the grounds that she was a co-habitee of more than two years and section1A was incompatible with the European convention on Human Rights (“the Convention”). She sought a declaration of incompatibility under section4 of the Human Rights Act 1998.

The claimant pleaded that section 1A(2)(a) of the Act was incompatible with Article 8 of the Convention (the right to respect for private and family life), or alternatively with Article 8 of the Convention read with Article 14. Article 14 prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Sadly, for the claimant, the claim against the third defendant was dismissed at first instance on the basis that the bereavement damages were not within the ambit of Article 8 and did not interfere with those rights. Therefore, it did not engage Article 14 and there was no unlawful discrimination. She appealed and very sensibly the Court of Appeal upheld her appeal and made a declaration of incompatibility. The appeal judges concluded that the situation of someone like the claimant “who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner” and once justified can amount to discrimination and an infringement of Article 14 in conjunction with Article 8.

The Court of Appeal took note of evidence of the social acceptance of co-habitation and that the UK population sees no material difference between marriage and civil partnership, on the one hand, and living together as an unmarried and non-civil partnered couple, on the other hand.

This judgment will have far reaching consequences, and the state will need to undertake a major review of the Act to ensure it is compatible with modern society and to expand the class of claimants.