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Matthew Tebbutt, solicitor in Lyons Davidson’s Clinical Negligence team, looks at the issues around Statutory Beareavement Awards.

Losing a loved one is probably the most difficult experience that many of us will ever have to deal with. When that loss has been caused by the negligence of a medical professional, someone in whom the loved one and their family had placed their trust, then the loss can be even harder to deal with.

In many of these cases, families will look to pursue a legal claim in order to ensure that the mistakes made by the medical profession do not happen to someone else, to get an apology, to seek an explanation for their loss and to obtain financial compensation.

Current level of Statutory Bereavement Awards

Sadly, a legal claim can provide only financial compensation for the family of the deceased and so it often comes as a great disappointment to them when they realise the compensation that is available to them can be limited, and not really a suitable remedy for the loss they have suffered.

If you were to ask a person on the street what monetary value they would place on the life of their spouse or other family member, the answer would likely be that it was not possible to do so. If pushed, you would imagine that the figure would be grossly in excess of £12,890 – yet this is the current level of Statutory Bereavement Awards in England and Wales.

In addition to this award being set at what many would consider a low level, the classes of bereaved people who can actually claim this award is extremely limited.

In the first instance, if the deceased was an adult you have to be their spouse or civil partner. This means that parents of an adult child cannot access this award. It also means that partners who lived with the deceased are also unable to claim this award, no matter what the length of their relationship.

Secondly, if the deceased is a child, in order to be able to claim the award the bereaved person must be either the parents of a legitimate child or, if the parents were not married, the mother only. In a society where many couples choose not to marry before starting a family for a variety of reasons, the application of the archaic principle of legitimacy seems out of sync with a changed world.  The requirement for the recipient of the award to be a spouse or civil partner also produces the unpalatable scenario where a separated but still legally married husband or wife could claim the award, whereas those in a stable and loving cohabiting relationship could not.

Bereavement damages Scotland

No other types of people are eligible to claim this award and, while a wider class of people are eligible to make a claim for financial losses such as dependency, there is no provision for them to be compensated for the loss of a loved one. This can be contrasted with the law in Scotland, where bereavement damages can be claimed by cohabitees and other family members.

Claims for wrongful death

The Statutory Bereavement Award was introduced in 1982 and in 1999, in response to calls for reform, the Law Commission produced a paper on Claims for Wrongful Death.  In respect of the Statutory Bereavement Award, the commission recommended that the classes of persons who are eligible to claim the award should be extended to include parents and children regardless of age, marital status or legitimacy. It also proposed that siblings, engaged couples and cohabitees (subject to a qualifying period) also be eligible to claim the award.

Negligence and Damages Bill

Similar reforms were suggested by the Law Commission in 2009; however, these were not pursued by parliament.  Further attempt at reform was pursued in the form of the Negligence and Damages Bill 2015-16, which included provision for cohabiting couples to claim the award. The bill had its first reading on 13 October 2015 but no further progress was made.

Continuing to evidence the ongoing appetite for reform in this area, the law was recently challenged in Jakki Smith vs Secretary of State.  Following the death of her long-term partner, Ms Smith discovered she was not eligible for the bereavement award. She brought a claim against the Secretary of State, alleging that the law breached her human rights in terms of the right to freedom from discrimination (Article 14 of the European Convention on Human Rights) and the right to respect for private and family life (Article 8).

While the court decided that current law did not breach Ms Smith’s human rights, the judgment indicated that it was hopeful that parliament could improve the current state of the law.

As the law stands, the people eligible to claim the bereavement award in England and Wales remains restricted and, given the prominence of Brexit preparations, this is unlikely to be an issue addressed by the government in the foreseeable future.

If you have any questions in relation to this article or wish to discuss a potential clinical negligence claim, then please do not hesitate to get in touch with us by emailing Clinical Negligence partner Joanna Laidlaw at [email protected].