The march towards giving unmarried couples equal rights has moved ever closer, with the Court of Appeal ruling that the UK government was breaching the human rights of a woman by denying her bereavement damages because she was not married to her deceased partner.
Under the Fatal Accidents Act 1976, if someone is killed because of another’s negligence — such as in medical cases, industrial incidents or accidents — a relative or partner may be entitled to claim a bereavement award, which is a fixed sum of £12,980. However, legislation states the award is only available to a surviving spouse, civil partners, or parents of children under the age of 18 years.
In Smith v Lancashire Teaching Hospitals NHS Foundation Trust , it was held the Fatal Accidents Act 1976 section1A was incompatible with the European Convention on Human Rights (ECHR), Article 14, in conjunction with Article 8, to the extent that it excluded cohabitees of over two years from its scheme for bereavement damages.
The appellant, Jakki Smith, had lived with her partner, John Bulloch, for over two years before he died as a result of the first and second defendants’ negligence.
Ms Smith had made a dependency claim under section 1 of the Fatal Accidents Act 1976 (the Act), which had been amended so that a “dependant” included any person who had been living as husband, wife, or civil partner of the deceased for at least two years immediately before death of the deceased. At the same time that the definition of “dependant” was amended, the bereavement damages provisions of section 1A were introduced to the Act. However, those provisions applied only to spouses and civil partners.
Ms Smith’s dependency claim could not be awarded under the Act. At first instance, Mr Justice Edis had to decide on the compatibility of section 1A(2)(a) of the Act with the ECHR. He found that there had been no direct breach of Article 8, the provision which protects the right to family and private life. In addition, he held that a claim to bereavement damages was not within the ambit of Article 8 because there was no sufficiently serious infringement and because the absence of a right to compensation for the Ms Smith’s grief was only vaguely linked to respect for the family life, which she enjoyed with the deceased and not linked at all to her private life.
Because no claim could be made under Article 8, the claim under Article 14 (which prohibits discrimination on grounds of “sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status”), was also dismissed.
The Court of Appeal case
The Court of Appeal upheld Ms Smith’s challenge to this decision.
To begin with, it looked at the correct test of whether a law fell within the ambit of Article 8, which would then trigger Article 14. The court stated that the test set out in Steinfeld v Secretary of State for Education  EWCA Civ 81,  3 W.L.R. 1237 was binding. Steinfeld was a Supreme Court decision, regarding whether opposite-sex couples could enter into a Civil Partnership. The couple claimed that the bar on opposite-sex couples entering into a civil partnership by virtue of section 3(1)(a) of the Civil Partnership 2004 Act was incompatible with Article 14 read together with Article 8.
Sir Terence Etherton, in giving his judgment, laid out the test in Steinfeld is as follows:
“The legal position may, therefore, be summarised as follows in a case where, as here, the claim is that there has been an infringement of Article 14, in conjunction with Article 8. The claim is capable of falling within Article 14 even though there has been no infringement of Article 8. If the State has brought into existence a positive measure which, even though not required by Article 8 is a modality of the exercise of the rights guaranteed by Article 8 , the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.”
Therefore, in applying this test, it was held that Justice Edis’s judgment was incorrect. He had been mistaken to say that the bereavement damages scheme was not within the remit of Article 8 to engage Article14 unless the link was sufficiently serious. Further, there was no authority for the suggestion that if a measure did not engage Article 8, it would often fall outside its domain for the same reasons. It had also been wrong for the judge to hold that as the bereavement damages regime did not indicate any disapproval by the State of the way that the Ms Smith and her deceased partner had chosen to live, the complaint did not achieve the level of serious impact required to put it within the ambit of Article 8. Finally, the judge had been wrong to conclude that the absence of a right to bereavement compensation was only slightly linked to respect for the family life which Ms Smith enjoyed with the deceased and not linked at all to her private life.
The Court of Appeal concluded that the damages available for bereavement were, by their very nature, designed to reflect the grief brought about by the death of someone exceptionally close, such as a spouse or civil partner. It followed that the award of damages was an example of the State showing respect for family life, which is a core value of Article 8.
Article 14 of the ECHR was also held to be engaged. The court held that Ms Smith’s situation – a long-term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, was sufficiently equivalent to that of a surviving spouse or civil partner to require discrimination to be justified under Article 14 when read in conjunction with Article 8. In addition, Parliament had failed to provide any justification for excluding cohabiting partners from benefiting under section 1A. The court also noted that the institution of marriage was waning and the number of couples choosing to live together was constantly increasing. Therefore, it was appropriate to make a declaration that section 1A was incompatible with Article 14 in conjunction with Article 8 in its exclusion of cohabitees of over two years.
The media attention this case has received is entirely appropriate. UK law is behind many other progressive countries regarding cohabitants. This development, along with the recommendations made by the Law Society in 2011 regarding the need to reform the law surrounding cohabitees who end their relationship and the Cohabitation Rights Bill 2017-19 currently moving through the House of Lords, may bring English law surrounding couples who live together, in line with modern family relationships.
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  EWCA Civ 1916