The Ministry of Justice’s recent announcement to draft a remedial order to amend section 1A of the Fatal Accidents Act 1976 (FAA 1976) has been a much awaited and needed change to counter the unfairness and injustice experienced by cohabitees in England and Wales.

At present a limited class of claimants can claim for the statutory bereavement payment under section 1A FAA 1976. Whilst the actual statutory bereavement award is derisory at £12,980 (which itself needs a revision), under the FAA 1976 it is only available to the wife, husband or civil partner of the deceased and where the deceased was a minor, who has never married or had a civil partner, to their parents if they were married or to their mother if the parents were not married. Cohabitees, despite having lived with the deceased for two years or more do not currently qualify for this, though they may qualify for a dependency award. These provisions apply to England and Wales only. As a consequence, cohabitee rights are limited, and they lose out unnecessarily following a fatal accident of a loved one where there is a cause of action for compensation.

The case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors [2017] EWCA CIV 1960 highlighted just how outdated and unfair this situation was. In that case the Court of Appeal also found it to be incompatible with Articles 14 and 8 of the European Convention on Human Rights.

Mrs Smith had been in a long loving relationship with her partner for many years but found following his death and on bringing a claim for compensation against the relevant NHS Trust responsible for his death, that she was excluded from claiming the statutory bereavement award. This was because she did not fall within the narrow category of eligible claimants. The Court of Appeal found that she had been discriminated against on the grounds of their marital status and made a declaration that this breached Mrs Smith’s human rights. It was only right that the Court of Appeal held that their relationship was no different to that of a married couple.

The remedial order being proposed under section 10 of the Human Rights Act 1998, if implemented, would amend section 1A of the FAA 1976 and make bereavement damages available to claimants who can prove they had cohabited with the deceased for a period of at least two years immediately prior to death. The remedial order would also provide that in circumstances where both the qualifying cohabitant and a spouse are eligible (i.e. where the deceased was still married and not yet divorced but had been in a new cohabiting relationship for at least two years) the award should be divided equally between the eligible claimants.

Whilst the proposed remedial order would apply to causes of action which accrue on or after the date on which the order comes into force, it is a change in the right direction and in keeping with modern times.