Bereavement claims for fatal accidents: Is the legislation still too narrow minded?

There are not many things worse than losing someone you love.  It can be all the more difficult where this has been caused by an accident that should have been avoided.

Where a fatal accident occurs as a result of someone else’s negligence, the law provides for a financial award, known as a ‘bereavement award’.  However, those eligible to qualify are a very narrow group.  While the government has pending legislation to update this area, it does not go far enough and further reforms urgently need to be introduced.

The bereavement award value

The value of the bereavement award depends on when a claim as a result of a fatal accident is made:

• If a cause of action accrues before 1^st May 2020, the bereavement award is: £12,980

• If the person dies on or after 1^st May 2020, the bereavement award is: £15,210

It can be difficult to come to terms with the law setting an arbitrary value on the worth of someone’s life.  While no amount of money would ever truly compensate the loss of a loved one, it is disappointing to see the value the law places on the loss of life.  Even the increased figure of £15,210 is still low and for many families this award is shocking and upsetting.

Eligibility to claim the bereavement award

The Fatal Accidents Act currently sets out three categories of people who are eligible to claim for a bereavement award.  They are:

• The wife, husband or civil partner of the Deceased

• The parents of a child under 18, if their parents were married when the child was born

• The mother of a child under 18, if their parents were not married when the child was born

This criteria represents a very limited and narrow section of society.

Further reform is essential to allow others to obtain the bereavement award and legal recognition they deserve.

Marriage v Cohabitees

Under the current law, cohabitees, unlike married couples, are not eligible to claim the bereavement award if the partner they live with is involved in a fatal accident.  This applies regardless of how long they have lived together.

In a positive recognition for change, the Court of Appeal in Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] held this position was discriminatory against unmarried cohabitees under the European Convention of Human Rights and that the government needed to amend the law to include them.

However, in February 2020, the government confirmed it has no plans to look more widely at the system for awarding bereavement damages to relatives.  The Ministry of Justice stated that they did not believe the existing provisions for the bereavement award are discriminatory.  It is hugely disappointing that the government has not acted sooner in representing unmarried couples who are in committed relationships and that they do not intend to act further.

Children and their parents

Children over 18

The remaining two categories eligible to claim the bereavement award are parents whose child is under 18 years of age.  The position the law takes, in allowing a bereavement award to be made if a child is 17 years and 364 days old but not just 1 day later is quite incredible.

The cut-off date preventing a bereavement award being made almost implies that their loss, as they are no longer eligible, is less important.  I would argue that losing a child, regardless of their age, does not make it any easier.  Additionally, with children now likely needing support (financial and otherwise) for beyond their 18^th birthday, this current position is clearly outdated.

Parents

Perhaps surprisingly, children are not eligible to obtain a bereavement award if they lose either of their parents in a fatal accident.  The loss of a parent for a young child would be such a significant and terrible time.  The current eligibility for a bereavement award does not recognise this and disregards the hardship of coming to terms from such a loss that a child would have for their parent.

Summary

Fatal accidents involving the loss of a loved one when it could have been avoided is a tragedy.  Sadly, there are too many cases in which those who are genuinely affected, both emotionally and financially, are unable to claim for their bereavement and have their relationship recognised, even though the financial sum will never be able to replace them.

If you compare the awards in England to the system in Scotland, the current meagre bereavement award appears even more woeful.  In Scotland, bereavement awards are made on an individual basis depending on each case and there is a wider group of possible recipients who can claim.  There is no statutory limit and there are cases in which the awards were over £100,000.

One of the biggest issue is the failure to recognise those who are in committed relationships.  It is obtaining that recognition which, for many, is the most important thing.  The law remains behind the times.  Too many are unfairly denied access to the compensation and recognition that they rightly deserve.  Further reform of the bereavement award cannot come soon enough.