Bereavement Awards for Cohabitees

Earlier this year we reported on the increase in the bereavement award under s.1A of the Fatal Accidents Act 1976, and the proposed legislation to extend eligibility to cohabitees. The Fatal Accidents Act 1976 (Remedial) Order 2020 (SI 2020/1023) (“the Order”) has now been made and comes into force from 6 October 2020. The amendments only apply to causes of action which accrue on or after 6 October 2020.

A remedial order was required following the Court of Appeal declaring that section 1A was incompatible with Article 14 of the European Convention on Human Rights, read in conjunction with Article 8, in Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916.

The Order provides that a cohabiting partner may be eligible for bereavement damages in addition to the spouse or civil partner of the deceased, or the parents of a deceased unmarried minor. Where more than one person is entitled to an award (for example a spouse and a cohabiting partner), the award must be shared equally between them.

A cohabiting partner is defined as any person who, immediately prior to the deceased’s death, had been living as wife, husband or civil partner of the deceased in the same household for a period of at least 2 years. The Order does not further define living “as the wife or husband or civil partner”, although the concept of living together as a married couple is well established in relation to social security legislation and the courts may adopt a similar approach.