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Gordon Exall, Zenith Chambers & Hardwicke

04/12/17. In  Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors [2017] EWCA Civ 1916 the Court of Appeal declared that the exclusion of cohabitees was incompatible with the Act. The practical consequence of this is that the government will have to look at this section and take steps to ensure it is compatible. Presumably by including cohabitees who have been living together for two years in the list of those entitled to the bereavement payment.

THE ACT

The Fatal Accidents Act 1976 provides for a bereavement award for married couples and couples in a civil partnership.

Whilst a cohabitee can be a dependent under 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.

SECTION 1A OF THE FATAL ACCIDENTS ACT 1976

1A. — 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.”

THE DECISION OF THE COURT OF APPEAL

The Court held:

  • the current scheme for bereavement damages in section 1A of the FAA, with its exclusion of unmarried cohabitees like Ms Smith, falls within the ambit of Article 8. I do so on the ground of the link with the core value of respect for family life in Article 8.”

  • It should make a declaration that this provision is incompatible with Section 4 of the Human Rights Act.

DAMAGES

The appellant claimed damages, these were not pursued.

  1. As I have said earlier, the claim form includes a claim for damages of £11,800 pursuant to section 8 of the HRA. That amount is equivalent to the statutory amount of bereavement damages applicable at the date of the deceased’s death.

  2. The Secretary of State has always maintained that damages are not recoverable under section 8 in the present case if the court makes a declaration of incompatibility. The reasoning of the Secretary of State is that damages under section 8 may only be made if the public authority has acted unlawfully. Section 6(1) of the HRA provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. That is qualified by section 6(2), which provides that subsection (1) does not apply to an act if, as the result of one or more provisions of primary legislation, the authority could not have acted differently.

  3. At the hearing of the appeal, Mr Sachdeva, on behalf of Ms Smith, abandoned the claim to damages in the light of section 6 but reserved the right to attack the validity of section 6 in any subsequent proceedings before the ECrtHR.

OBSERVATIONS IN RELATION TO COHABITEES

  1. Finally, on this aspect of the appeal it is relevant to note the decline in popularity of the institution of marriage and the increase in the number of cohabiting couples, as recorded by the Judge in paragraph [29] of his judgment. He pointed out that, in its report on “Families and Households” published in 2015, the Office of National Statistics found that the cohabiting couple continues to be the fastest growing family type in the UK, reaching 3.2 million cohabiting couple families. The number of cohabiting couple families grew by 29.7% between 2005 and 2015. Marriage (same and opposite sex) and civil partnership also increased but less sharply. In 1996 cohabiting couples comprised 9% of all families. In 2015 the proportion was 17%. These figures indicate that, for a significant and increasing proportion of the population of the United Kingdom, there is, in terms of social acceptance, 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.

Gordon Exall
Zenith Chambers & Hardwicke

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