Bereavement awards following fatal accidents in England and Wales are set to increase by over 16% from 1 May this year. Notwithstanding the increase, many are critical of the fixed awards system operating south of the border and have called for a move towards the Scottish system of assessing awards on a case-by-case basis.

Let's review the approaches in each jurisdiction and how they compare.

What are bereavement awards?

Bereavement awards are statutory payments made to defined individuals in fatal accident or clinical negligence claims. Their purpose is to compensate bereaved families for the non-financial benefits that would have been received had death not occurred. They are known as 'statutory' bereavement awards in England and Wales because the sum is fixed by law under the Fatal Accidents Act 1976.

How much can be claimed?

Bereavement awards are currently fixed at £12,980 but this will increase to £15,120 for deaths occurring on or after 1 May 2020.

The Association of Personal Injury Lawyers (APIL) is critical of the fixed awards system and has called for a move towards the Scottish system of assessing each claim on a case-by-case basis.

Who can claim?

Under statute, only the following defined individuals can claim a bereavement award:

(a) the spouse or civil partner of the deceased;

(b) parents of a deceased individual under the age of 18, but;

(i) only if the parents were married, or

(ii) if the parents were unmarried, only the mother can claim an award.

Where the award is for the benefit of both parents, it is split equally between them.

Minors are not eligible for a bereavement award if they lose a parent.

What about cohabiting partners?

The Fatal Accidents Act has been criticised as old fashioned in some areas, for example, fathers of deceased minors cannot claim a bereavement award if they were not married to the mother.

The other main area of criticism relates to cohabiting partners; currently they are not included within the list of defined persons who can claim an award. However, this is set to change following the Court of Appeal decision in Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others [2017] EWCA Civ 1916. Miss Jacqueline Smith lived with her deceased partner for over 11 years before his death. Under the current law she was not entitled to a bereavement award. She argued that this was discriminatory and the Court of Appeal held that the relevant part of the Act was incompatible with the European Convention on Human Rights. However, it now falls to parliament to amend the Act.

Earlier this year, the UK Government published draft amendments allowing for cohabiting partners to claim a bereavement award under the Act. They must have been living with the deceased for at least two years immediately prior to the death. These amendments have not yet come into force.

Is there other compensation that can be claimed after a fatal accident?

Yes, there are other awards available for financial losses incurred by the deceased's family.

The full value of each claim depends on the deceased's own circumstances and the financial impact of their death on their dependent family. Compensation may be payable for the following:

  • the pain, suffering and disability suffered by the deceased as a result of accident or disease in the time leading up to their death – this will be determined by the Judicial College Guidelines;
  • financial costs or losses incurred by the deceased's family in the time leading up to the deceased's death, such as lost earnings or time for providing care;
  • reasonable funeral expenses paid either by the dependents or by the deceased's estate;
  • loss of dependency which is often the largest part of the claim; this will compensate dependants for future losses where they were reliant upon the deceased's income or the 'services' the deceased provided; such as childcare, housework, gardening and DIY.

Cross border issues

In Scotland, bereavement awards are assessed on a case-by-case basis and are often more generous than the fixed awards scheme operating in England and Wales. It is perhaps unsurprising, therefore, that family members may seek to pursue bereavement claims in Scotland if possible.

We have seen this happen in fatal claims arising from asbestos related illnesses where the deceased may have been exposed on both sides of the border. Our team of English and Scottish lawyers can advise on jurisdictional issues associated with bereavement awards.