A long-running campaign to bring statutory bereavement damages in line with modern society faced another roadblock recently as government ministers doubled down on their reluctance to reform this outdated and unfair area of law.
Members of the Association of Personal Injury Lawyers (APIL) have for years been pushing the government to update the legal framework surrounding who is eligible for bereavement damages in England and Wales. They join the Law Commission, Joint Committee of Human Rights, and bereaved people who think it is high time that the law was modernised.
Currently, only spouses, civil partners, cohabitees of more than two years, and parents of unmarried children under 18 can claim for bereavement damages if their loved one is unlawfully killed due to incidents like medical negligence. The current statutory sum is only £15,120 which was increased from £12,980 in 2020.
Parents can’t each make a claim and must share the statutory sum, indicating that the grief of losing a child is half that of losing a spouse. Furthermore, if a child’s parents are unmarried, thus meaning they are deemed ‘illegitimate’, then only the mother can make a claim. Yet more than half of babies in the UK are born to parents not married or in a civil partnership.
No parent would ever want to outlive their children, and a parent’s love for a child does not diminish just because the child is over the age of 18. But if an adult child dies, parents cannot make a claim. If their child dies aged 17 and 364 days, they are eligible for bereavement damages, but wouldn’t be the following day. If their child sustained fatal injuries before they turned 18 but died after their 18th birthday, the parents would get nothing.
At the other end of the scale, children who lose their parents aren’t entitled to bereavement damages at all, no matter their age. Siblings, grandparents, step-family and other relatives who may have shared a close bond with the deceased are being denied bereavement damages due to limited eligibility criteria.
In an ideal world, nobody would die due to errors of others but that is impossible. Updating bereavement damages is not about being greedy, or seeking more money – no amount can compensate for the loss of a loved one; it is about the injustice of how the system works and the failures being made to those who have lost something that money simply cannot replace.
APIL says government is out of touch with modern society
Bereavement damages fall under the Fatal Accidents Act 1976. This law is almost 50 years old and reflects the societal attitudes and relationships back then. Of course, the structure of families has changed significantly since the 1970s and the law should match the realities of the new world we live in.
Many other laws have changed or arisen in recent years in response to modern society. It’s ten years since the Same Sex Marriage Act was commissioned in 2013, and last year saw the advent of the Divorce, Dissolution and Separation Bill 2022 and the new ‘no fault divorce’ concept.
In 2020, the government made a commitment to Parliament’s joint committee of human rights that it would ‘consider the merits of amending provision’. One of the main arguments was that the language used in relation to legitimacy of a child was stigmatising and inappropriate. However, when recently asked if there are any plans for changes to bereavement damages eligibility, Justice Minister Edward Agar replied that the Ministry of Justice stands by the existing legal framework which is a ‘reasonable, proportionate and practical approach’.
Agar said that any changes to extend availability to other family members whose relationship to the deceased person may be less close would require a fundamentally different approach which would permit enquiries into the nature of the relationship in individual cases.
“This could lead in some cases to intrusive and upsetting investigation of the claimant’s relationship with the deceased person and could also increase the cost and complexity of the proceedings,” he said. He added that bereavement damages were widely recognised and accepted as a fixed payment in acknowledgement of grief and were not intended to reflect the monetary value of a life.
APIL have since accused the government of a ‘sickening display of indifference towards grieving relatives’ after implying that fathers don’t have a close relationship to a child if they aren’t married to the mother. “The Government’s reluctance even to consider further reform is a snub to bereaved families, and flies in the face of consistent calls for modernisation of the law,” said APIL president John McQuater.
Should we follow Scotland’s suit?
Unlike the rest of the UK, Scotland has a different position on bereavement damages. There is no maximum limit to the amount of money awarded. Relatives who are eligible relatives covers a much wider scope, including children, siblings, grandparents, and descendants of the deceased.
Most importantly, each case is considered on its own merit. The Damages (Scotland) Act 2011 enables the Scottish courts to make whatever award they feel is just in the specific circumstances. It recognises the closeness between the deceased and their loved ones and the family circumstances.
Scottish solicitors are required to submit ‘relationship statements’, as well as birth and marriage certificates to prove the connections to the deceased. This provides relatives with the chance to bring their lost loved one to the forefront of the claim and highlight the impact of their loved one’s death on their family. Granted, each relative may be awarded a different sum of money depending on their closeness to the deceased but in Scotland there is fairness for families.
What are lawyers doing to help the matter?
‘Bereavement damages: A Dis-United Kingdom’ is a key campaign of APIL and they are encouraging members to increase pressure on the government by securing parliamentary debate. We, as members of the public, can lobby our local MPs to raise the issues with the secretary of state for justice, Alex Chalk KC.
Most MPs will be unaware of the fact that statutory bereavement damages are only available for a limited number of grieving relatives and that the sum awarded is very low. They are often shocked to learn the truth and we hope they will act on behalf of their constituents by joining the fight to secure a better future for people who lose close family members due to the fault of another.