Working parents who lose a child are to be entitled to two weeks’ statutory leave, under the new legal right – referred to as “Jack’s Law” – which is expected to come into force in April.
The law is named after 23-month-old Jack Herd, who tragically lost his life in 2010 after drowning in a pond. His father returned to work just a mere three days after Jack’s death, whilst Jack’s mother, Lucy Herd, began a campaign to highlight the problems facing bereaved parents who previously were expected to return to work as quick as possible.
On the issue, Lucy Herd said “in the immediate aftermath of a child dying, parents have to cope with their loss, the grief of their wider family, including other children, as well as a vast amount of administrative paperwork and other arrangements”. This new law will allow bereaved parent’s some breathing space to grieve without worrying about returning to work immediately.
As the law currently stands, there is no automatic right to paid time off for the loss of a child, however when the new law comes into force, the UK will be the only country providing the right to paid leave for bereaved parents.
Business Secretary Andrea Leadsom said of the new legislation that “when it takes effect, Jack’s Law will be a fitting testament to the tireless efforts of Lucy Herd, alongside many Charities, to give parents greater support”.
Who will be entitled?
“Jack’s Law”, or under its formal title, The Parental Bereavement Leave and Pay Regulations, will implement a statutory right to a minimum of 2 weeks’ leave for all employed parents who lose a child under 18 years of age, or suffer a stillbirth from 24 weeks of pregnancy.
Eligible parents will be able to take their leave as either a consecutive two week leave or two separate blocks of one week taken at different times; this right can be used regardless of how long they have worked for their current employer.
However, only those employed for at least 26 week’s with their employer will be eligible for Statutory Parental Bereavement Pay (SPBP), which will be paid at the statutory rate of £148.68 per week, or 90% of average weekly earnings where this is lower.
It is estimated that around 7,500 child deaths, and a further 3,000 stillbirths, occur within the UK every year. This new entitlement will help to support at least 10,000 bereaved parents a year.
Dawn Allen lost her son Henry in 2013 when he was four years old, due to childhood cancer known as neuroblastoma. Dawn left her job to help Henry during his illness and eventual death, whilst her husband Mark worked continuously to support his family. Financial burdens and fear of unemployment often pushes parents back to work before they are ready.
Dawn described being a bereaved parent as the “most horrific experience” before stating that “Jack’s Law will really, really help bereaved families. I think it is something that bereaved parents do need and should have had the option a long time ago”.
Dawn also commented that being able to take the two week leave either together or as two separate weeks is massively important, as “you may find later on, as the days and the weeks and the months go on, you realise that your child is not coming back and that’s a massive reality check”.
Ian, an ex-nurse working in London, was responsible for managing 40 carers and vividly recalls breaking the news of his son’s stillbirth to his boss, “I rang my line manager and said, ‘You won’t believe what’s happened.’ He said, ‘I’m sorry to hear that, but I’ve got no-one to cover for you tomorrow. You’re going to have to come in.”
He describes the anguish he was going through, with his son Ellis being stillborn at 10:00pm, yet Ian was back at his job at 8:00am the following day. “I was back answering the telephone, being polite. Inside, I was screaming.” If it weren’t for his two other children, Ian believes he would have contemplated suicide as a result of the pressure he was under after losing Ellis.
During her campaign for Jack’s Law, Lucy Herd describes speaking to other bereaved parents, where there were inaccuracies between what employers were saying and how parents were subsequently treated, as “employers were saying ‘take as much time as you need’, and they were taking six months off, and it was down on their record as being off sick. They’d come back to a P45 on their desk.”
Implications for Bereavement Leave
Hopefully through this reform people can deal with the trauma of losing a child better than before feeling the need to return to the workplace. For more information on bereavement and what you can do in these tragic circumstances, please go to our website.
At the moment, the current bereavement award, in our respectful view, is too low. It does not provide sufficient compensation for suffering from the death of a family member. The government has assessed the award over the years for the loss of a close family member, wife, husband, son, daughter in the current sum of £12,980.
Whilst we appreciate that no amount of money is going to compensate the loss of a loved one, the current government award is unjust. Following Jack’s Law, we hope that there is also room for improvement in terms of the compensation awards given to bereaved families, irrespective of whether the loss is a young child, brother, sister, mother or father.
For any issues arising from this article or from any other matter concerning a bereavement award, fatal accident compensation, rights and the law please contact fatal accident solicitors.
The Legal Authority to Make a Fatal Accident Claim for the death of a Family Member is currently under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The Fatal Accidents Act 1976 makes it possible to claim compensation for the death of a family member in respect of a wrongful death. It enable entitles certain people to make a claim for compensation in order to reflect their loss of financial dependency on the deceased. The categories of people in tilted to claim could include spouses, civil partners and children of the deceased. However, the number of Dependants is not fixed it could range further than immediate family; it could also extend to siblings and grandparents.
The Dependants are usually the deceased ‘Next of Kin’ so the fatal accident claims are usually made by the same people. Dependents are able to claim for any loss any dependency including;
Under the Fatal Accidents Act 1976 a Bereavement Award is a personal injury claim made following the unlawful death of a person to the fault of another. Entitlement for a Bereavement Award is calculated on an individual case-by-case basis. To qualify for a Bereavement Award a claimant has to show they fall within a particular class of persons entitled and highlight how they have suffered or are suffering a loss.
Bereavement damages are most often paid where you may also hear the words ‘unlawful killing’ or where the death has occurred due to a criminal offence such as murder.
The Bereavement award is a one of payment of £12,980 to certain relatives of the deceased which is limited to the wife, husband or civil partner of the deceased. The exception to the strict criteria is where the deceased was a minor, in which case the deceased parents may be entitled to a bereavement award.
The amount of the Bereavement Award has increased over the last decades and historical figures for the Bereavement Award are;
£3,500 to £7,500 – 1 April 1991
£10,000 – 1 April 2002
£11,200 – 1 January 2008
£11,800 – 1 January 2012
£12,980 – 1 April 2013 to present (current rate)
This provision has been widely criticised, particularly in light of ‘the number of cohabiting couple families has increased faster than married couple and lone parent families, with an increase of 25.8% over the decade 2008 to 2018’ according to the Office for National Statistics. It is our firm belief that when a couple has cohabited for years and may even have started a family together it seems unjust to deny them the Bereavement Award solely on the basis that they have not entered into a legal marriage. As reported by the BBC the Law Commission previously suggested ‘cohabiting couples should be eligible for bereavement damages’.
The legal system sparks a grave injustice where children are killed in an accident where it is another’s fault. Most such cased involved fatal road accidents where the child is a passenger in a vehicle.
The law ignores children from a compensation point of view. It is as though they are worthless. A child who is tragically killed in a road accident or other equally tragic event where the death or unlawful killing was the fault of another, the compensation for dependency is usually the following:
Return to parents of funeral expenses.
Damage for personal items such as clothing.
Compensation for any pain and suffering prior to death.
Due to the child’s age there is often no financial dependency upon the child by the parents or guardian responsible for looking after him/her and thus the loss of a child is quite often valued at £NOTHING, subject to a bereavement awant. It truely is remarkable that this law is still in place today.
Fatal Accident Compensation for Cohabitees
As the Law stands, cohabitees are not able to claim for a Bereavement Award under the 1976 Act. However, as cohabitation is becoming increasingly regular amongst couples in the UK. The law is gradually adapting to accommodate these alterations to the usual household dynamic and provide greater protection for cohabitees; however, there are no immediate legal rights for cohabiting couples.
When a long term partner and cohabitee passes away at the fault of a third party the Fatal Accidents Act 1976 makes it possible for cohabitees to claim for compensation if they fulfil certain criteria;
• That they were living with the deceased in the same household immediately before the date of the death.
• That they had been living with the deceased in the same household for at least 2 years before that date.
• That they were living during the whole of that period as the husband or wife or civil partner of the deceased.
However, person seeking to make a claim under the Fatal Accidents Act 1976 are not only required to prove that they are living with the deceased, but equally the permanence and stability of the relationship with the deceased. Evidence of the stability of a relationship includes things such as shared bills, bank accounts and other household arrangements.
Equally, to the internal nature of the relationship, the external nature will also be relevant; in other words the nature to which the relationship was presented publically as living together in a long term sustained relationship. Brief periods of absence will not break the continuity of cohabiting, if it is found that the deceased and the claimant did cohabit together regularly.
Legal Challenges for Fatal Accident Compensation for Cohabitees
In the case Ms. Jakki Smith, the claimant and the deceased Mr. John Bulloch cohabited as man and wife between March 2000 and his death on 12 October 2011. Mr Bulloch died as a result of medical negligence of the first and second defendants. The defendants admitted the negligence but claimed that Ms Smith was not entitled to the Bereavement Award as the couple never officially married.
Ms. Smith’s legal team argued that in denying cohabitees from claiming the Bereavement Award, the High Court ruling dismissing her claim breached Article 8 and Article 14 of the European Convention of Human Rights. Ms. Smith argued that the legislation discriminated her as an unmarried woman. As Article 8 protects the right to respect for private and family life, home and correspondence and; Article 14 requires that all of the rights and freedoms set out in the Act must be protected and applied without discrimination; the law needs to take into consideration that cohabitation can and does give rise to intimate and long-term relationships which stand to be compensated for the grief experienced when one party dies due to the fault of a third party.
The Court of Appeals issued a section 4(2) declaration of incompatibility under the Human Rights Act 1998 to the effect that section 1A of the Fatal Accidents Act 1976 is not in accordance to the European Convention of Human Rights. This in itself does not change UK law it paved the way for parliament to amend the legislation through a joint committee to review the Fatal Accident Act 1976 with regards to cohabiting couples. On 8 May 2019 the Government laid a proposal draft Remedial Order to remedy the discrimination. However, as it stands cohabitees are not entitled to a Bereavement Award.
The law on the rights of cohabitees when one dies in an accident found to be the fault of a third party is gradually coming in line with the dynamic of modern families and the social acceptance of the legitimacy of cohabiting couples. Cohabitees may claim compensation for loss of dependency provided they are able to demonstrate that they lived in the same household as the deceased. Each case is judged with its own specific details but primarily the claimant must demonstrate that they were in an internally and externally stable relationship of sufficient permanence to be eligible. Currently, the Bereavement Award is not available for Cohabitees however, this will change but the time scale for this to be included within the law is undetermined.
When it comes to claiming a bereavement award, there are a number of different factors which will affect whether your claim is successful or not.
Here is a round-up of some of the most common elements which will determine whether your bereavement award payout is successful or not.
What Affects a Bereavement Award Claim?
To be successfully awarded a bereavement award, a court will have to consider the claimant’s relationship with the deceased. As it stands, an award can only be given to a spouse or civil partner of the deceased or, if the deceased is under the age of 18, their parents. The amount received is currently a total sum of £12,980 regardless of the specific circumstances surrounding the death.
Bereavement awards have continuously been the centre of arguments within the legal sector as many consider the payout and restricted eligibility as a symbolic sum rather than an accurate representation of the emotional and economic loss caused by the victim’s death.
There are various circumstances which make the award in its current state unfair. If the deceased is an illegitimate child under 18, then only the mother would receive a payout. If the deceased is an adult, then the parents would receive nothing. When both parents are eligible for the award, then both would only receive £6,490 no matter their pain, grief or suffering. Even worse, if a parent dies, then a son or daughter would not be eligible for a bereavement award. If a fatal accident occurred when a victim was still a child but they pass when they turn 18, then no award is payable.
There is hope and an ongoing fight to ensure that bereavement awards will eventually open up in the near future, providing people with the payouts they deserve no matter their relationship to the victim or the victim’s age at the time of death.
Our team of expert solicitors have dedicated experience in dealing with fatal accident claims including bereavement awards. Contact us today for free advice to see if you may be able to claim for a bereavement award.
Hundreds of Deaths at Gosport War Memorial Hospital
The public enquiry has led to an out cry by the relatives to call for prosecutions concerning the deaths of elderly patients at the hospital between 1988 – 2000 and no doubt in due course there will be questions following the Gosport Inquiry about compensation claims for the loss of a loved one.
The Gosport Enquiry was led by the former Bishop of Liverpool, the Rt Rev James Jones. It may be recalled that the Bishop has had extensive experience in the Inquiry that led to the tragic deaths of the 96 Liverpool supporters who died at Hillsborough following a football match.
The tragic deaths at Goport, it is reported in The Times, was initially raised by nurses about the over-use of the powerful painkillers at as far back as the early 1990’s. but those concerns were dismissed.
The practice of over-use opioids (pain killers) appears to have continued unabated. The Independent Panel, found that 456 patients had died in hospital due to:
‘..an institutionalised practice of the shortening of lives through administering opioids without medical justification”.
The Gosport Independent Panel investigation, began four years ago in 2014, and considered a voluminous about of documentation. It concluded that:
“there was a disregard for human life and a culture of shortening lives of a large number of patients” at the Hampshire hospital.’
There is also the possibility that up to 200 more patients may also have died but there were gaps in the record keeping that may have provided a more accurate assessment.
The Inquiry was of the view that it was the ‘norm’ that patients were prescribed powerful pain-killers. A clinical assistant at the hospital informed the Inquiry had said that it was the norm “for the practice of prescribing which prevailed on the wards.”
The General Medical Council ruled that Dr Barton, who is at the centre of the Inquiry, was guilty of repeated professional misconduct relating to 12 patients who died at the hospital, but she has never faced criminal charges.
Bishop Jones was of the view that the result of the inquiry was a “vindication” of the families’ “tenacious refusal to be dismissed”. It is reported that his words led to “a collective intake of breath from 150 people”, according to those present.
Gosport Inquiry – The Failure by Those Who Are In Charge to Protect The Vulnerable.
Whilst justice will turn it wheels slowly, it has, it appears it has reached the right result. It is quite right that the families affected ensure that justice prevails. Not only has the Inquiry led to mistakes being uncovered but those who are at the centre of the storm be punished for what they have done.
But in addition, lessons must be learnt about those who are in charge of the institutions that are there to protect the vulnerable. The whistle-blowing that sounded the alarm many years ago where the NHS failed to act is an important point. It is reported that nurses attempted to raise concerns with management but were ignored, owing to a culture at the hospital that meant doctors’ decisions could not be questioned, the report said, adding: “The opportunity was lost, deaths resulted.”
The Times reported that the NHS was reluctant to press ahead with its own inquiries because it feared compromising police work. Coroners inexplicably waited nearly two years to carry out inquests after the CPS had decided not to prosecute.
There were multi-party party failures where the Inquiry must lead to ensure that whilsteblowers are legally protected and full an proper investigations are undertaken.
Patients To Dye Prematurely in Hospital
Patients are likely to be dying prematurely in hospitals today, according to Professor Sir Brian Jarman, director of the Dr Foster Unit at Imperial College London.
Here there is concerns when health safety data, was analysed. There was a desire among officials “not to know” when things went wrong.
He warned that whistleblowers had been “fired, gagged and blacklisted”.
The need for legal protection for whistleblowers is paramount especially in the NHS. At school or at home when you are a child you take a dislike to anyone who ‘snitches’ you by a ‘mate’ or a sibling. But when lives are at stake, when procedures go wrong, how do you complain to those who are ‘above you,’ are senior, more qualified and respected.
That is the dilemma facing not just the NHS but other organisations. However the NHS is in a position where life and death are at stake. The former High Court Judge Dame Janet Smith (I had a multi-party 6 week hearing before her back in 1996) was on BBC 2 Newsnight and expressed the view that her Inquiry into the Shipman Inquiry into the murders appears not to have made any impact on protection and listening to whistleblowers within the NHS.
Will the Gosport Inquiry make a difference? Let’s hope so. There are patients out there now, in the NHS where I am sure, decisions taken by senior medical staff are questionable. Again the actions of the minority taint the majority, but such actions have a devastating impact when they go wrong. Who protects the vulnerable? The last resort surely should not be the lawyers.
Gosport Inquiry Compensation Claims
The last thing in families minds is compensation. As experienced fatal accident solicitors dealing with bereaved families justice and the truth of what happened to their loved one is a priority. But when the investigation has been completed (or during) it is possible to claim compensation for the loss of life, grief and dependency when a loved one passes in an untimely and unjust way caused as a result of the negligence of another. The majority of claims will be brought under The Fatal Accidents Act 1976 .
As solicitors who specialise in fatal accident compensation claims, one other avenue could still be open for families is to make a claim following the Gosport Inquiry. Proceedings may be required in a short period of time due to the fact usually the law only permits claims to be pursued within three years from the date of death. However there is a discretion by the Courts to allow for Gosport Inquiry Compensation claim to be pursued if it was unjust not to do so. One major point in the families favour would be due to the fact that it was only following the result of the Inquiry that they knew the full extent of the harm and possible negligence that resulted in the deaths of their loved ones. They could not have known earlier, for sure and thus a potential civil claim for damages could be made to over come the limitation period.
There are only a limited class of people who can claim for bereavement compensation award in a civil claim set out under the Fatal Accidents Act 1976:
Surviving civil partner
Parents (if the child was under 18)
Unmarried couples? (living together as husband and wife/same sex couple for at least two years prior to death – see further below).
Civil Partners Act 2004 introduced a claim for a bereavement award. But what about unmarried couples? The Fatal Accidents Act 1976 Guide we have provided clearly shows that if a couple is unmarried or not in a sanctioned civil partnership, the death of a partner due to a fatal accident were not entitled to claim.
If a partner has died due to a fatal accident caused by another, providing that the surviving partner was:
married to the deceased,
in a civil partnership with the deceased,
A bereavement compensation award can be made. However, if they were not married or in a Civil Partnership at the time of the fatal accident claim, no compensation for a bereavement award is payable under the Fatal Accidents Act 1976. Please note a parent can claim for a bereavement award for a loss of a child providing that the child was under 18 years of age at the time of death. However, this article concentrates on couples who cohabit by choice or otherwise and choose not to marry or be in a Civil Partnership.
In a recent development and very much welcomed, came a challenge through the Courts where an unmarried partner tried to claim for a bereavement award despite the limited class of people who can claim under the 1976 Act.
In this case, Miss Smith had cohabited with her partner for over 10 years when her partner unfortunately died due to a medical accident. She believed the law was unfair and incompatible to other laws such as pursue the bereavement award as well as a declaration of incompatibility under the European Convention of Human Rights with regard to the right for family and private life and protection from discrimination respectively. She had the right to challenge but no compensation was payable. The law has changed and it is likely that unmarried couples may be able to claim for a bereavement award but the Fatal Accidents Act 1976 has not been changed to date but is about to be amended at the time of writing this page, see below.
Change in the Law to Qualify for a Bereavement Award
Following the Court of Appeal case in Smith, the Government is intending to change the law so that unmarried couples can also claim compensation for a bereavement compensation following a fatal accident claim if they were living together for a period of two years prior to death as ‘husband and wife.’
Below is a comprehensive guide on Cohabitation is rapidly growing in popularity amongst couples in the UK. Even though an unmarried couple may be able to bring a claim, they must satisfy the Court that they were ‘living together‘ for a period of two years prior to death.
While the law is gradually adapting to reflect these changes and provide greater protection for cohabitees, as yet there are no automatic legal rights for cohabiting couples. So what happens if you are a cohabitee and your long-term partner passes away in a tragic accident?
Where the accident is found to be the fault of a third party, the Fatal Accidents Act 1976 entitles certain categories of persons to make a claim for compensation to reflect their loss of financial dependency on the deceased. These include spouses, civil partners and children of the deceased.
That they were living with the deceased in the same household immediately before the date of the death
That they had been living with the deceased in the same household for at least 2 years before that date
That they were living during the whole of that period as the husband or wife or civil partner of the deceased.
The Relationship: Living Together, Cohabiting, What Does It Mean?
The fact that people cohabit and live together does not mean that they are a couple who have intended that the relationship was akin to a ‘husband and wife’ situation. There must be some sort of criteria, a formula if you like, that demonstrates to others and the court that they were indeed living or cohabiting together with that intention.
Several factors that can help determine if couples who are not married or in a Civil Partnership and may be useful to satisfy the court that they were cohabitants under the law. Some examples found outside of the Fatal Accidents Act 1976 are below:
The Family Law Act
Section 62(1) of the Family Law Act 1996 defines “cohabitants”, for the purpose of eligibility to apply for occupation and non-molestation orders, as two persons who are neither married to each other nor civil partners of each other but who are living together as husband and wife or as if they were civil partners.
Couples Cohabiting – Adopting Children
Couples are defined as two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
Common Factors for Living Together to Satisfy a Claim for Bereavement Compensation.
It appears that the common factor, to be summarised in a short sentence can be typically described as ‘an enduring sexual or intimate relationship to the exclusion of all others.’ The most common formula uses the “marriage analogy”, while some more recent legislation has referred to “partners in an enduring family relationship“.
Bereavement Award and The Fatal Accidents Act 1976
The criteria in the provision of the FAA 1976 for couples ‘living together’ as husband and wife can be broken down into their component parts as below:
The Courts have made clear that the relevant phrase for consideration is “household” and not “house”; thus it is not sufficient to show that a claimant was merely living under the same roof as the deceased.
The case of Gully v Dix  EWCA Civ 139 involved a claimant who sought to make an application for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. While this case was decided under different legislation, the criteria to be established was largely the same; the claimant had to demonstrate that she was living in the same household as the deceased during the whole of the period of two years immediately before the date of his death. In considering this case, the judge commented that:
“they will be in the same household if they are tied by their relationship. The tie of that relationship may be manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that binds them together”
“have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes and to involve an element of community of resources”
Thus a person seeking to make a claim for compensation under the Fatal Accidents Act 1976 would need not only to show that they were living with the deceased, but also provide evidence as to the permanence and stability of their relationship.
This may include things such as shared bills and bank accounts, as well as other household arrangements – for example cooking, laundry, reminders of appointments and so on. While some of these factors may simply be indicative of a strong friendship, the combination of all factors must point to a deep-rooted bond and an element of exclusivity.
For example in the case of Swetenham v Walkley & Bryce  WTLR 845, the deceased and the claimant would attend social events as a couple, and the claimant would do the deceased’s washing while the deceased would pay for meals when they went out. They would support each other when ill. Although the defendants argued that they had merely been close and mutually supportive friends, the judge held that the couple had a mutuality of support and understanding to the extent that they would put each other before other friends.
In addition to the internal nature of the relationship, the external nature will also be relevant; in other words, the extent to which the claimant and deceased presented themselves publicly as living together in a sustained relationship. In Pounder v London Underground Ltd  PIQR 217 (referred to in Kortke v Saffarinig  where the claimant girlfriend of the deceased was entitled to claim under the Fatal Accidents Act 1976, the strength of her case was her ability to rely on independent witness evidence giving the strong impression that the witnesses believed the deceased to be living at the claimant’s flat.
2. Separate houses
An important principle to be drawn from the above case of Pounder is that the claimant and deceased were held to be living in the same household despite the fact that the deceased had retained his mother’s address for all official documents.
A similar situation occurred in Lindop v Agus  EWHC 1795 (Ch), decided under the Inheritance (Provision for Family and Dependants) Act 1975, in that the claimant lived as the deceased’s wife in the same household while retaining a different address for official correspondence. The court held that the fact that bank statements and other documents were sent to a different address was not in itself enough to defeat her claim and there was sufficient corroboration from witness evidence to find that they had lived in the same household.
“It is clear from the authorities that in principle a person may be a member of household A, albeit he has a second house or home elsewhere at B to which he departs temporarily from time to time”
In that case, the claimant brought a claim under the Fatal Accidents Act 1976 after her partner was killed in a road traffic accident. In the years prior to the accident, the claimant and the deceased had owned and lived in separate properties in Sheffield and Doncaster, staying together at weekends.
Although the judge considered that the retention of the deceased’s house in Doncaster was not in itself a barrier to establishing the criteria for the claimant’s claim, what did invalidate her claim was the fact that the deceased himself considered himself as resident at his Doncaster address and indicated that he and the claimant had not yet reached the position of treating the Sheffield address as their mutual home.
In fact, the deceased had kept his wardrobe and possessions at his home in Doncaster, and only really began to plan a life with the claimant after she discovered that she was pregnant. However, the legislation requires that the claimant and deceased to have lived together for two years prior the date of the deceased’s death, and the pregnancy was discovered less than two years prior to his death.
These cases demonstrate that the fact that the claimant and deceased had separate houses or addresses will not automatically prevent the claimant from proving that they had lived in the same household as required by the legislation. More important are the intentions of the couple themselves and the nature of the relationship as a whole.
3. Brief Periods of Absence
It follows, then, that brief periods of absence will not break the continuity of “living together”. In the case of Pounder, the judge accepted that the deceased may have returned to his parents’ house for a week or so at a time but he was still able to find that the claimant and deceased had lived together at the claimant’s home. In addition, the judge found that although in the year before the accident in which the deceased was killed the claimant had gone to a woman’s refuge for a period of 3-4 months this did not break the period of living together. Evidence showed that the claimant had returned home regularly and stayed overnight.
In Gully v Dix  EWCA Civ 139, concerning similar provisions under the Inheritance (Provision for Family and Dependants) Act 1975, the claimant had been living separately from the deceased in the three months preceding his death. This separation was in response to an incident in which the deceased had threatened to kill himself. In finding that the claimant and deceased had nevertheless been living in the same household, the court considered that regard was to be had to the “settled state of affairs during the relationship and not the immediate de facto situation prevailing before the deceased’s death”.
Thus in the same vein as the reasoning which underpins the approach taken with separate houses, the mere fact of an absence will not negate the “living together” element of the legislation. The intention of the parties will be more determinative and a court may find that a person was living in the same household as the deceased even if they were living separately at times if it can be demonstrated that there was no settled intention that the relationship was at an end; it was merely suspended.
4. Civil Partners
While the legislation previously referred to the need to demonstrate that the claimant and deceased had been living together “as husband and wife”, growing acceptance of same-sex relationships led to an amendment being made in 2004 to the effect that cohabiting same-sex couples can also bring a claim for compensation under section 1(3)(b).
There are no separate requirements for same-sex cohabitees; the same criteria that must be established by cohabitees advancing their claims as husband and wife apply. Thus a claimant must demonstrate a relationship that goes beyond casual and produce evidence to show that it was sufficiently permanent and constant, both privately and publicly.
Bereavement Award £12,980
So far this article has dealt with the ability to bring a claim for compensation flowing from the claimant’s loss of financial dependency on the deceased. This entitlement is calculated on a case-by-case basis and beyond establishing that they fall within a particular class of persons entitled to bring a claim, the claimant must also show that they have or will have suffered a loss. For example, a claimant may claim compensation where they can show that they have suffered a loss of prospective earnings or pension. The court may also take into account non-material losses, such as the loss of the deceased’s role in family life – these include things such as birthday presents for children or the fact that the deceased regularly carried out DIY or gardening around the house.
However, in addition to this entitlement, the Fatal Accidents Act 1976 also introduced the Bereavement Award, a one-off payment of £12,980 to be paid to certain relatives. Currently this award is limited to the wife or husband or civil partner of the deceased. The only exception is where the deceased was a minor, in which case his or her parents may be entitled to the Bereavement Award.
Therefore, as the law stands, cohabitees are not able to claim compensation for bereavement under the 1976 Act.
This provision has been widely criticised, particularly in light of the fact that more and more young couples are choosing cohabitation rather than the more traditional route of marriage. Where a couple has cohabited for years and may even have started a family together it seems unjust to deny them the Bereavement Award solely on the basis that they have not entered into a formal marriage. The inequity becomes even starker when you consider that a couple who have been married for just several months and have no children will be entitled to the Bereavement Award should one of them die.
In this case, the claimant, Ms Smith, and the deceased, Mr Bulloch, had cohabited for 11 years before his death in October 2011 after he had contracted an infection following a hospital procedure. The NHS Trusts admitted that they were to blame but argued that Ms Smith was not entitled to the Bereavement Award as she and Mr Bulloch had not been married.
Ms Smith argued that in denying cohabitees from claiming the Bereavement Award, the legislation breached her human rights, namely Articles 8 and 14 of the European Convention on Human Rights. Article 8 ECHR protects the right to respect for private and family life while Article 14 ECHR provides protection against discrimination. Ms Smith’s argument was that the legislation discriminated against her as an unmarried woman.
The Court of Appeal noted that the Bereavement Award was intended to reflect the grief that flows from intimacy inherent within couples who were married or in a civil partnership. In that respect there was no distinction between couples in a marriage or civil partnership, and couples who were cohabiting.
Just as the right of civil partners to claim bereavement damages had been added by the Civil Partnership Act 2004 to reflect the growing incidence of same-sex relationships and the need to protect their right under Article 8 ECHR, so too does the law need to reflect the fact that cohabitation can and does give rise to intimate and long-term relationships which stand to be compensated for the grief experienced when one party dies due to the fault of a third party.
The Court in Smith issued a section 4(2) declaration under the Human Rights Act 1998 to the effect that section 1A of the Fatal Accidents Act 1976 is incompatible with the ECHR. While this does not in itself change the law, it paves the way for Parliament to amend the legislation in order to allow cohabitees to be awarded bereavement damages.
(1) the duration of the relationship;
(2) the nature of the relationship;
(3) the degree of mutual commitment to a shared life;
(4) the nature and extent of common residence;
(5) whether the parties maintained a common household;
(6) whether or not the parties had a sexual relationship;
(7) the emotional or physical intimacy of the parties’ relationship;
(8) the extent of financial interdependence or dependence, if any;
(9) the extent to which any financial dependence was encouraged or fostered by the relationship;
(10) the ownership, use and acquisition of property;
(11) the performance of household duties;
(12) whether the parties have or care for children, either of both or one of them;
(13) the reputation and public aspects of the relationship;
(14) oral or written statements or promises made to each other, or representations made jointly to third parties, regarding their relationship;
(15) the extent to which the parties acknowledged responsibilities to each other, for example, by naming the other as eligible to receive benefits under an employee-benefit plan; and
(16) the parties’ participation in a commitment ceremony or registration as a domestic partnership.
The law on the rights of cohabitees when one dies in an accident found to be the fault of a third party is gradually coming in line with modern society and the social acceptance of the legitimacy of cohabiting couples. Cohabitees may claim compensation for loss of dependency provided they are able to demonstrate that they lived in the same household as the deceased. Each case will be judged on its own specific facts but the underlying principle is that claimants must show that they were in a relationship of sufficient intimacy and permanence, taking into account the relationship as a whole and how they conducted themselves both privately for themselves and publicly for the outside world to witness.
As it stands, cohabitees are not entitled to a Bereavement Award; however, this will change in the near future. In response to Smith v Lancashire Teaching Hospitals NHS Foundation Trust, the Government laid a proposed draft Remedial Order before Parliament on the 8th May 2019 designed to extend the right of bereavement damages to cohabiting couples. Just how long before this becomes law remains to be seen but it is certainly a step in the right direction.
In accordance with the Fatal Accidents Act 1976 reasonable funeral expenses can be recovered against the party at fault. Funeral expenses can also be covered on behalf of the estate claim under a fatal accident (Law Reform Miscellaneous Act 1935) but in practice most claims for funeral costs are in accordance with the 1976 Act.
This is because the dependents left behind are the ones who generally pay for the funeral cost and that expense is recoverable back to them. If the expense is paid by the deceased’s estate then it can be recoverable by the estate.
Average Costs of a Funeral
Funerals are not cheap and can put a bereaved family into debt. It is reported that the average costs of a funeral is now in the region of £4,000. Combined with the loss of income or carer which often arises following fatal accident claims means that not only do bereaved families have to cope with the emotional stress of losing a loved one but also the added burden of loss of imcome or care within the family unit.
This can lead to unnecessary stress and burden.
How can we help?
At fatal accident claims, we are experienced in dealing with the recovery of the funeral expenses following a fatal accident in addition to the other claims that can be made which can be substantial especially if the deceased had a young family.
Following the tragic loss of a loved one in fatal accident claim the law provides what bereaved families must undertake to obtain justice and lastly compensation.
However the Fatal Accidents Act is pitiful and outdated. There is not a great deal we can do as specialist solicitors in this area other than apply to law to the best of our ability and achieve the best possible result given the law at it stands.
What is the Fatal Accidents Act?
The Fatal Accidents Act is passes as law by the Government. It is not judge made law. All judges and solicitors do is apply and interpret the law in the given circumstances. The 1976 Act governs all fatal accidents in England and Wales. It does not apply to Scotland who have their own laws which provides greater justice to the bereaved families left behind.
What is a Bereavement Award?
A bereavement award is payable where the deceased was killed following an accident that as caused as a result of another persons actions or omissions. The current award is just £12,980.
The most common fatal accidents claims that solicitors encounter in England and Wales arise out of:
We are asked simply out of curiosity and as part of a tragic loss of life due to a accident. A bereavement award is commonly payable where a close family member loses the life of a loved one. The amount payable is a poultry £12,980. Primarily this is due in the following type of accidents:
There is a limited class of close family members who can claim.
Surviving spouse of the deceased, including now surviving civil partner.
Parents of child, providing child at the time of death is under 18 years.
That is about it. Surprisingly a child cannot claim any bereavement award for the loss of his or her parent(s), guardian or grandparent who may have been the primary carer at the time of the tragic death of the adult. Absolute nonsense and totally unjust.
Fatal Accidents Act 1976
The statutory provision for payment of a bereavement award is found under the Fatal Accidents Act 1976 a rather old an unjust piece of law, made by the Government.
It is for the Government to change the law but under the Conservatives, this looks remote. In fact quite the opposite.
There is nothing so emotive than to lose a loved one due to a criminal act such as murder. The devastation can only be imagined by those not affected. Even, perhaps more hurtful is if the murder is by a family member, husband or wife for instance or the murder of a child.
The unthinkable regrettably does happen but what can the family victims left behind do? This short blog looks at the compensation elements to help family members left behind cope with the financial pressures of losing a relative.
The CICA is set up by the Government to help victims of crime by making a compensation award to certain family members who have been affected by the death of a loved one.
The compensation award is similar in certain respect to a normal claim for fatal accident compensation claims in the civil courts. The CICA have a tariff of compensation awards which includes claims for murder and thus a bereavement award and dependency claim can be make.
Nobody is ever suggesting that a lump sum compensation award for a fatal injury claim on a charge for murder or manslaughter can in anyway replace the loss of a relative. But compensation for a murdered relative may help those family members left behind, particularly if there are young children or the bread winner has lost his or her life due to a crime.
The compensation may help towards child care, education and protect their future. Family members who are struggling to make ends meet will find it easier to cope with the every day life and bills that keep on coming in. The loss of a loved one due to a crime, criminal act does not stop bills.
Affected family members even if they were working at the time, may not be able to come with returning to work for a long period of time or at all. Again this can result in loss of income or if children have to be looked after, the working parent may not be able to return.
Whatever the circumstances, compensation for the murder of a relative due to a crime may be payable even if the perpetrator is known to the victim.
In our mind the punishment for causing death by dangerous driving are totally inadequate. The maximum punishment is 14 years in prison. Most serve less than 5 years.
If the punishment against the driver is not sufficient, bereaved families are further met with an insulting legal system where compensation is of limited or no use especially when it comes to losing children.
Yes compensation is not everything, it will never be enough for a loss of a loved one but the compensation for a fatal accident claim for causing death by dangerous driving can help with financial pressures following the death of a loved one. Often even if it is not the bread-winner who has died, some bereaved family members cannot go back to work for a long time. The bills don’t stop coming in. They need to be paid from somewhere.
If you have been affected please contact us for sympathetic expert legal advice.
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