Amendment to bereavement claims under the Fatal Accidents Act 1976

In my blog post of May 2019, I mentioned that the Ministry of Justice had recently announced plans to draft a remedial order to amend section 1A of the Fatal Accidents Act 1976 (FAA 1976) to rectify the unfairness and injustice experienced by cohabitees in England and Wales. After much campaigning by various lobbying groups, this has finally happened and the Fatal Accidents Act 1976 (Remedial) Order 2020 comes into force on 6 October 2020. It extends the scope of people entitled to the statutory bereavement award (which still remains derisory at £15,120) to include cohabitees who were previously excluded under section 1A of the FAA 1976.

The Order inserts the term “cohabiting partner” into the classes of people entitled to the bereavement payment in section 1A of the FAA 1976.  This definition also applies to same sex relationships and is therefore more reflective of modern society.

However, this Order is not retrospective. It does not apply to deaths that occurred before 6 October 2020.

At present a limited class of claimants can claim for the statutory bereavement payment under section 1A FAA 1976. It is only available to the wife, husband or civil partner of the deceased and where the deceased was a minor, who has never married or had a civil partner, to parents if their parents were married or to their mother if the parents were not married.  Cohabitees, despite having lived with the deceased for two years or more do not currently qualify for this, though they may qualify for a dependency award.  These provisions apply to England and Wales only.  As a consequence, cohabitee rights are limited, and they lose out unnecessarily following a fatal accident of a loved one where there is a cause of action for compensation.

In order to meet the criteria for a bereavement award under the Order, the qualifying  cohabiting partner of the deceased must still be able to prove that they:-

• had been living with the deceased in the same household immediately before the date of the death; and
• had been living with the deceased in the same household for at least two years
  before that date; and
• were living during the whole of that period as the wife or husband or civil partner of
  the deceased.

Whilst this Order may have come too little too late for some and may seem very unfair to those recently bereaved, it does go some way in addressing what was a real injustice in the legal system to those who had been cohabiting with the deceased and would otherwise meet all the qualifying criteria. It is about time this legislation, which is outdated and incompatible with human rights, was amended. The government would do well to now think about increasing the actual award if only to provide solace for the death of a loved one.