Joint Committee on Human Rights Reiterates Call for ‘Wider’ Review of Bereavement Damages

In edition 306 of BC Disease News (here), we reported that The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020 had been passed to inflate ‘damages for bereavement’ to £15,120, in cases with a cause of action accruing on or after 1 May 2020.

Whilst this amendment to compensation, pursuant to s.1A of the Fatal Accidents Act (FAA) 1976, has been broadly welcomed, Gordon Dalyell, President of the Association of Personal Injury Lawyers (APIL), considers that:

‘The Government has taken only the smallest of steps to improve the law in this area, and it simply is not enough’.[1]

Supplementary to the fixed statutory tariff, we reported, last year (here), that the Government had put forward A proposal for a Remedial Order to amend the Fatal Accidents Act 1976, which proposed to amend the list of persons eligible to claim bereavement damages so that it includes ‘2+year cohabitees’, thereby remedying the Act’s incompatibility with the European Convention on Human Rights, which had been observed by Sir Terence Etherton MR, in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2) [2017] EWCA Civ 1916.

As before, APIL’s reaction to the scope of proposed change was that it was ‘not nearly good enough’.

In spite of consistent criticism aimed at the Government, in February (here), we quoted the Government’s concession that it ‘does not have any plans for wider consultation on the bereavement damages regime or the FAA more generally’.

However, this Response of the Ministry of Justice (MoJ) appeared to disregard the views of the Joint Committee on Human Rights, chaired by Labour’s Harriet Harman MP, which, in a July 2019 Report (the 1st report), concluded that the Government should make the most of its opportunity to ‘look more broadly at the bereavement damages scheme and undertake a consultation with a view to reforming the scheme’.

Since then, the Joint Committee has called for the Government to reconsider launching a consultation on wider reform of s.1A of the FAA, beyond the realms of The Fatal Accidents Act 1976 (Remedial) Order 2020, as currently drafted.

Their call has been communicated through the medium of a 2nd Report, published on 18 May 2020.[2]

In essence, this 2nd report is an almost word-for-word recitation of the 1st report, which it stands by.

Although the Joint Committee accepts the Government’s concern that an extended scheme could lead ‘in some cases to intrusive and upsetting investigations of the claimant’s relationship with the deceased person’, it still disagrees with the Government’s view that the list of eligible claimants [per s.1A(2)] is not ‘still vulnerable to human rights challenges’. As such, parliamentarians call for bereavement damages to be opened up to:

‘… fathers grieving the loss of children born outside of wedlock; parents grieving the loss of adult or married children; children grieving the loss of a parent; and siblings grieving the loss of a brother or sister’.

What is more, even though the bereavement award in England and Wales has been brought in line with Northern Ireland (£15,100 since May 2019), the Joint Committee still feels that a mere reflection of inflation is unsatisfactory and once again asks whether the Scottish model of assessing damages for ‘loss of society’ (the Damages (Scotland) Act 2011 equivalent), on a case-by-case basis, is fairer than the fixed lump sum model in other UK jurisdictions?

Ultimately, the Joint Committee concluded, as follows:

‘It is disappointing that the Government has rejected the recommendation for a consultation on the bereavement damages scheme.

We reiterate our recommendation that the Government should undertake a consultation on wider reform to this scheme to ensure it is fully compliant with human rights law and reflects the reality of modern family life’.

 

[1] ‘Reactionary statement following inflationary increase to bereavement damages’ (20 March 2020 APIL) <https://www.apil.org.uk/statement/bereavement-damages-increase> accessed 29 May 2020.

[2] John Hyde, ‘MPs unhappy over limited reform to death damages’ (19 May 2020 Law Gazette) <https://www.lawgazette.co.uk/news/mps-unhappy-over-limited-reform-to-death-damages/5104332.article> accessed 28 May 2020.

‘Co-habiting couples to be entitled to bereavement damages’ (18 May 2020 UK Parliament) <https://committees.parliament.uk/committee/93/human-rights-joint-committee/news/146442/cohabiting-couples-to-be-entitled-to-bereavement-damages/> accessed 29 May 2020.