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Is the Smith case a step forward for the rights of cohabitees?

Date:11 DEC 2017
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The inability of long term cohabitees to claim the bereavement award in personal injury cases is incompatible with their human rights: this was the recent finding of the Court of Appeal in Smith (suing in her own right and as the surviving partner of John Bulloch, deceased) v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916.

What is the bereavement award?

The bereavement award is a statutory sum of £12,980 payable by a defendant in cases where a person is wrongfully killed by someone else’s negligence. It is provided for by the Fatal Accidents Act 1976. Historically, it applied only to husbands and wives on the death of their spouse or parents on the death of their child. In 2004 Parliament extended the scope to civil partners. In 2009 the Government tabled an amendment which would have added cohabiting couples, who had lived together for two years or more, but this was shelved.

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The current case 

Mr Bulloch and Ms Smith lived together from March 2000 until 12 October 2011. They never married but were in a committed partnership. Mr Bulloch died as a result of clinical negligence. Ms Smith made a claim against the NHS Trust responsible for her partner’s death and, on the basis that she was ineligible for the bereavement award; she joined the Secretary of State to pursue the bereavement award as well as a declaration of incompatibility with Arts 8 and 14 of the European Convention of Human Rights 1950 (the Convention) which deal with respect for family and private life and protection from discrimination respectively. Discrimination can only be invoked where it is linked to another one of the other articles.

Ms Smith won damages for her financial losses but the High Court Judge found against Ms Smith on the bereavement award because:

  • Article 8 did not require states to have a bereavement regime therefore it could not be said that the inapplicability to Ms Smith of the existing bereavement award regime was a breach of Art 8, particularly as many states have no regime at all.
  • Although he recognised that there was discrimination between how the law treated married and unmarried couples that this discrimination was not sufficiently linked to the rights protected under Art 8 and was not sufficiently serious to breach the Convention.

The judge did however find that there was no justification at all for the regime and also commented that he was in agreement with the proposals to reform the law.

Court of Appeal 

The core nature of the appeal concerned the link between the discrimination and the right to family life. The Court of Appeal concluded that the trial judge 'must have either misunderstood the nature of the test or reached a conclusion which was not open to him on the facts'.

The Secretary of State did not attempt to argue a justification for the difference as they had done in the High Court. Instead their final gambit was to contend that Ms Smith was not in an analogous position to a widow. This argument was rejected and the declaration of incompatibility was made.

Damages, equivalent to the bereavement award, were not awarded. Although the Human Rights Act 1998 allows damages where a public authority has acted in a way that contravenes the Convention this does not apply where the public authority was acting in accordance with an Act of Parliament as was the case here.

Wider implications 

Although this has been hailed as a victory for the rights of cohabitees, at present the law has not been changed. The Government is certainly now under pressure to table amendments to the Act but whether it will and what these amendments would be is yet to be seen.   

If the Fatal Accidents Act 1976 is to be 'opened up' by Parliament there are other areas which have been criticised and this could be the opportunity to change them.

One issue to consider is the 2-year plus requirement for cohabitation. In this case Ms Smith and Mr Bulloch exceeded this, but what about couples who had been living together just shy of 2 years?  The level of the award, at £12,980, has been criticised as being inadequate. Another criticism is in respect of fathers who are not named on the birth certificate being unable to claim the award, the award being split between mothers and fathers rather than them being given an award each and the inability to claim the bereavement award for adult children even those under a disability, whereby the law would otherwise treat them in the same way as children. Now would be a welcome time to look at all these legal anomalies in the round.

Although this decision brings the discussion of discrimination for cohabitating couples to the forefront if Parliament does not act to change the law this will be a shallow victory.