The loss of a life partner can never be fully compensated. Marriages, civil partnerships and cohabiting relationships are built on far more than anything money can buy. Nevertheless, in the aftermath of an unexpected death of their spouse or partner following negligent medical care, many of our bereaved clients have welcomed the reassurance and financial assistance that comes from making a claim for compensation.
A successful fatal compensation claim can:
- ease the financial pressure on the surviving partner from:
- funeral expenses
- loss of earnings and pension income
- the cost of child-care
- the cost of getting help with things that their partner used to do, such as gardening, housework, DIY
- reassure the surviving partner that the mistakes which led to their partner’s death have been acknowledged by the healthcare provider
- provide closure and financial assistance to allow the surviving partner to begin to rebuild their own and their family life
At this difficult time, it is important that the person who has recently experienced their partner’s avoidable death, and may still be struggling with shock and grief, feels that they have been listened to and acknowledged in their loss. It is often at this difficult time that we have to explain to the deceased’s bereaved, long-term, cohabitee partner that, in relation to one aspect of their claim, the bereavement award, the law denies them the same rights to compensation as a widowed spouse or civil partner in similar circumstances.
What is a bereavement award?
The bereavement award is a statutory damages award that is paid in some circumstances after a death has been caused by someone else’s wrongful act or omission.
The Fatal Accidents Act 1976 sets out who is eligible for the bereavement award. The amount of the bereavement award is fixed by the government but is paid (in addition to other sums of compensation) by a defendant who has admitted or is proved to have negligently caused the deceased’s death. Currently the award is set at £12,980.
Currently the bereavement award is only available to the deceased’s:
- spouse, i.e. their wife or husband
- civil partner
- the deceased’s parents if the deceased was a minor (under 18) and had never married
Under the current law in England and Wales, an unmarried partner or cohabitee is not entitled to a bereavement award.
Cohabitees can’t claim bereavement damages. Isn’t that unfair?
Yes, it is unfair. The Court of Appeal has ruled that it is unfair too.
In the 2017 case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors, the Court of Appeal ruled that the Fatal Accidents Act 1976 (which sets out eligibility for the bereavement award) was incompatible with the European Convention on Human Rights (ECHR) Article 8 (which gives the right to family life) and Article 14 (prohibiting discrimination). The Court said that the Fatal Accidents Act discriminated against Ms Smith, the bereaved partner in that case, by denying her the bereavement award because of her unmarried status.
However, even though the Court of Appeal recognised that an unmarried partner should be compensated for their loss due to negligence in the same way as a spouse or civil partner, and declared that the Fatal Accidents Act was incompatible with the European Convention of Human Rights, this did not change the law.
What is being done about changing the law?
One way to change the categories of people who are entitled to a bereavement award would be to create new law to amend the Fatal Accidents Act. However, given the current pressure on Parliament’s time owing to Brexit, it is likely that any amendment which had to happen in this way might never take place. So, in May 2019, the Ministry of Justice proposed that the law be changed by a remedial order.
The Human Rights Act allows a remedial order to change domestic legislation (the law of a country) to make it compatible with the European Convention of Human Rights. If the remedial order is passed, it will allow a bereaved unmarried cohabitee partner of at least two years to be eligible to receive bereavement damages in the event that their partner died as a result of negligence.
Even though the law has been recognised as unfair to unmarried, bereaved cohabitees for some time, the remedial order is only expected to affect a small number of people and will be dealt with in Parliament as a non-urgent matter.
What compensation can bereaved cohabitees claim for the loss of their partner from medical negligence?
In other respects, unmarried, long-term partners have the same rights to compensation as spouses and civil partners after their partner dies as a result of medical negligence.
Boyes Turner’s experienced medical negligence team have helped the surviving partners, widowed spouses, civil partners and dependent children of individuals who have died as a result of medical negligence claim compensation for:
- the deceased’s pain and suffering prior to their death
- funeral expenses
- costs of replacing the deceased’s care for children or other dependent family members
- costs of replacing the household and other tasks which the deceased had carried out for the family
- loss of income from the deceased’s earnings and pension
We look forward to the bereavement award being payable to married and unmarried long-term partners alike, after the proposed changes take place to the law.