The Smith case in 2017 concluded that the 1976 Act’s bar on of cohabitants recovering bereavement damages was incompatible with Convention rights. The Ministry of Justice signalled it would rectify the Act and this week published its proposals to do so.
In Smith v Lancashire Teaching Hospitals the claimant failed to recover a bereavement award following the death of her partner, with whom she cohabited, caused by the defendant trust’s negligence. She could not recover because cohabitants do not come within the scope, at section 1A, of those eligible under the Act for the bereavement award. [She was successful, however, in recovering substantial damages for loss of dependency under section 1.]
The Court of Appeal held that the inability to recover in these circumstances was incompatible with rights under the European Convention and in so doing created an obligation on the government to take action. This outcome was analysed by the MoJ which then it indicated it would amend 1976 Act to resolve the incompatibility.
The detail of its preferred way forward was published on 12 February 2020 as a report in response to the relevant Select Committee and accompanied by a draft Remedial Order to amend the legislation. Both can be accessed here.
The scope of the Remedial Order is narrow and is limited to plugging the gap identified in Smith, ie only to bring cohabitants within the scope of the section 1A award. A threshold period of at least two years of living together is also to be introduced. This is the same qualifying period of cohabitation that already applies to section 1 claims for loss of dependency, ie “living with the deceased in the same household for at least two years before [the date of death]”, per section 1(3).
The MoJ’s paper indicates in terms a very clear policy to do no more than the minimum required to resolve the Smith incompatibility: “Amending section 1 would in the Government’s view go beyond the strict requirement that a Remedial Order may only be used to make the changes which are necessary to remove the incompatibility that has been identified.” It is also noteworthy that the paper repeats the basis on which the bereavement award was introduced, describing it as “simply a token award in acknowledgment of grief” and “only ever intended to be a token payment payable to a limited group of people”.
It follows that this process is definitely neither a wide review of the 1976 legislation as a whole nor an examination from first principles of the eligibility to claim for either bereavement or loss of dependency. Although this narrow scope will inevitably disappoint campaigners representing claimants – as might the rather direct use of the word “token” to describe the award – it is not at all clear that the requirement for the government to act should be interpreted as being wider than simply to rectify the incompatibility identified in by the Court in Smith.
That said, the paper does recognise that the statutory level of the award (which was last re-set in 2013) should be increased broadly in line with inflation. It seems to us that doing that would be likely to add at least £2,000 to the current award of £12,980.
The precise timing of this change is difficult to predict even though the Order: (a) will have been formulated by Parliamentary Counsel / government lawyers (b) is set out in the papers as a draft Statutory Instrument and (c) is obviously therefore ready begin the legislative process required for it to take effect.
But whenever these changes are made – a fair if vague working assumption might be later in the year, possibly by the summer – they will apply only to actionable deaths happening on or after commencement (at paragraph 1(2) of the order).