Cohabiting partners should have same rights as spouses to claim bereavement damages — Lucy Eastwood
30 November 2017
Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916 – read judgment
In a landmark decision handed down on 28th November 2017 the Court of Appeal ruled that cohabiting couples should have a right to claim bereavement damages, putting them in a position analogous to spouses and civil partners.
The case was brought by Jacqueline Smith following the death of her partner, John Bulloch. Ms Smith and Mr Bulloch had cohabited between March 2000 and Mr Bulloch’s death in October 2011. They never married but it was accepted that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment. Mr Bulloch died as a result of clinical negligence after contracting an infection following a hospital procedure.
The legislation governing bereavement damages is the Fatal Accidents Act 1976 (“FAA”). Under Section 1A(3) FAA a fixed sum of £12,980 is paid out by way of bereavement damages if a person dies as a result of negligence. Under Section 1A(2)(a) FAA a claim for bereavement damages shall only be for the benefit of married couples or civil partners. There is no provision under Section 1A(2) for unmarried cohabiting couples to claim such damages. Therefore, Ms Smith was not entitled to bereavement damages following Mr Bulloch’s death.
Ms Smith argued that the legislation was in breach of her rights under Article 8 of the European Convention on Human Rights (“ECHR”) and Article 14 ECHR, taken in conjunction with Article 8 ECHR, in that it discriminated against her as an unmarried person. Her claim had previously been dismissed by the High Court in September 2016. Permission to appeal was granted in light of the decision of the Court of Appeal in Steinfeld & Anor v The Secretary of State for Education  EWCA Civ 81 in February 2017.
In a momentous decision the Court of Appeal allowed the appeal, unanimously ruling that cohabiting couples should be eligible for bereavement damages and issuing a declaration of incompatibility with Article 14 ECHR, in conjunction with Article 8 ECHR, in respect of Section 1A FAA.
Issues before the Court
The issues on appeal were:
- Whether the provisions concerning the right to bereavement damages under Section 1A FAA were to be interpreted as extending to a person who was living with the deceased in the same household for at least two years before the death as if they were a spouse or civil partner (mirroring the entitlement to cohabitees to dependency damages under Section 1 FAA), because they would otherwise be incompatible with Article 14 ECHR, taken in conjunction with Article 8 ECHR; and
- If they could not be so interpreted, whether the court should:
(a) Make a declaration of incompatibility; and
(b) The Secretary of State for Justice should pay damages to the appellant under the Human Rights Act (“HRA”) 1998 equal to what would have been the bereavement award at the date of death.
The Court’s decision
Ms Smith did not appeal the High Court’s decision that there had been no direct infringement of Article 8 ECHR. The crux of her appeal was that the Judge was wrong to hold that the scheme for bereavement damages under section 1A FAA did not fall within the ambit of Article 8 ECHR for the purposes of Article 14 ECHR. She also argued that the Judge failed to correctly apply the test of whether the link between the right she claimed and the rights protected by Article 8 ECHR was “more than tenuous”. Had that test been properly applied, she argued, then such a link would have been established.
The Court examined whether Ms Smith’s case fell within the ambit of Article 8 ECHR. It considered that the current scheme for bereavement damages, with its exclusion of unmarried cohabitees, fell within the ambit of Article 8 ECHR by reason of the link with the core value of respect for family life.
It also considered whether the case fell within the ambit of Article 8 ECHR for the purposes of Article 14 ECHR. When determining the ambit of Article 14 ECHR, the Court relied on the decision in Steinfeld, summarising the current legal position as follows:
“The claim is capable of falling within Article 14 even though there has been no infringement of Article 8. If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.”
The Court did not accept the argument averred by the Secretary of State that the link between the scheme for bereavement damages and their unavailability for cohabitees was too tenuous to be within the ambit of Article 8 ECHR for the purposes of Article 14 ECHR, stating:
“It is apparent from the very fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners. It inevitably follows that the scheme for bereavement damages is properly regarded as a positive measure, or modality, by which the State has shown respect for family life, a core value of Article 8.”
It rejected the submission that Ms Smith was not in an analogous position to a widow, holding that this would depend on the precise context, and noting that in many cases- both Strasbourg and domestic- it had been held or agreed by the parties that unmarried couples were in an equivalent position to married couples. In the Court’s view, the key issue was the nature and consistency of the relationship, not its formality:
“…in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8… it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.”
The Court concluded that the difference between Sections 1 and 1A FAA as regards cohabitees was clear, express and intentional. As it was an ingrained feature of the legislation, the Court was unable to use Section 3 HRA to interpret Section 1A FAA as though it extended to cohabitees. Instead, it determined that a declaration of incompatibility in accordance with Section 4 HRA was the appropriate relief.
Ms Smith did not pursue her claim for damages.
A change to the law?
UK law must be interpreted, so far as possible, in a way that is compatible with the HRA. Under Section 4 HRA, if a court considers a piece of domestic legislation incompatible with the HRA it can make a declaration of incompatibility. Due to parliamentary sovereignty, such a declaration does not affect the validity of the legislation and it remains a decision for Parliament to decide whether to amend the law. Therefore it is now a matter for Parliament to decide whether to amend Section 1A FAA to include cohabiting couples.
If Parliament did decide to amend the legislation, it would bring the law on bereavement damages into line with the law on dependency damages. Section 1 FAA requires a tortfeasor who has caused death to pay damages for the benefit of dependants of the deceased. The term “dependants” encompasses both married and cohabiting couples of at least two years. As such, parliament is, for the purposes of dependency damages, already treating cohabitees as being in a relationship comparable to that of spouses and civil partners. The existing discrepancy between dependency and bereavement damages does therefore have a degree of incoherency.
An amendment to the legislation would also bring it into line with societal attitudes towards cohabiting. In a 2016 report on Families and Households, The Office for National Statistics found that cohabiting couple families were the fastest growing family type between 1996 and 2016, increasing from 1.5 million to 3.3 million families. This indicates that for an increasing number of people there is no material difference between living as a spouse or civil partner and living as a cohabiting couple. Under Scottish law cohabitees have been able to claim bereavement damages since 2011 and the Law Commission has previously advocated parity. A change to the law would also harmonise the rules on bereavement damages with other policies which recognise people in cohabiting relationships as a couple, such as council tax and jobseeker’s allowance.
The case raises a number of policy issues which are likely to require more in-depth Parliamentary debate. Regard will need to be had as to how the law should apply to situations where a deceased leaves both a spouse and a cohabitee and to the length of the qualifying period of cohabitation. Ultimately, the Court’s decision has not affected the validity of Section 1A FAA and the law will not change without Parliament’s approval. However, given the publicity surrounding the case, the incompatibility has very publically been brought to the Government’s attention: it would be difficult to ignore.
For more on the qualifying period of cohabitation for dependency damages, see David Hart QC’s blog on Damages for Death and Human Rights.
Lucy Eastwood is currently a pupil at 1 Crown Office Row