The law surrounding bereavement compensation in England & Wales following fatal incidents is unfair and out-of-touch. A look to Scotland is needed for Inspiration as to how the law can be changed to bring it to the 21st century.
Fatal Incidents
In England and Wales, there are two main pieces of legislation which relate to fatal incidents, such as death due to medical negligence.
The first is the Law Reform (Miscellaneous Provisions) Act 1934 and is generally a claim made on behalf of the deceased's estate. It allows the Personal Representative(s) of the deceased's estate to claim the following:
- Pain, suffering and loss of quality of life of the deceased up to the date of death.
- Medical and other expenses up to the date of death.
- Loss of income up to the date of death.
The second is the Fatal Accidents Act 1976, and is a claim made by the dependants of the deceased. It entitles dependents to make 3 possible claims:
- A Bereavement Award, which is limited to certain persons only;
- A claim for loss of dependency; and
- A claim for funeral expenses – if paid by the dependants.
Bereavement Award
A Bereavement Award is a statutory sum of money awarded to eligible family members in the event of losing a loved one who died following an act of negligence, such as medical negligence. The Fatal Accidents Act restricts the categories of relatives entitled to claim the bereavement award to:
- The spouse or civil partner of the deceased;
- A cohabitee if they had lived with the deceased for at least two years; and
- The parents (or mother if the child is “illegitimate” i.e. unmarried parents) of unmarried children under the age of 18 (“a minor”).
That means there is no entitlement for a child who loses a parent nor for a parent who loses a child over the age of 18, or a sibling, a grandchild or a grandparent.
Furthermore, the amount of the Bereavement Award is currently £15,120, which is a fixed sum unchanged since 2020 and not at the Court's discretion to change. Only one award of £15,120 will be awarded with respect to the death. So, where a minor dies due to negligence, the award is split between both parents rather than each parent receiving £15,120.
The Association of Personal Injury Lawyers (APIL), the largest claimant injury lawyer association in the UK, released a report titled "A Dis-United Kingdom" concerning bereavement compensation. In the report, they referenced comments from the Ministry of Justice, which stated that "bereavement damages are and were only ever intended to be a token payment." The Ministry of Justice pointed out that the current law in England and Wales was not designed to imply that those ineligible for bereavement compensation "would not grieve at the death in question”. Yet, despite recognising this, they have resisted any further review of reforming it to include more family members.
Bereavement Award in Scotland
In Scotland, the assessment for bereavement compensation awarded to relatives differs from that in England and Wales. According to APIL’s report, the compensation provided after a wrongful death is determined by legal precedent and a thorough assessment of the relationship between the bereaved and the deceased. In Scotland, the categories of relatives who can claim the bereavement award are much wider. All immediate family members are taken into account, including brothers and sisters, grandparents, grandchildren or step-family and are all treated equally. Additionally, there is no upper limit on the amount of compensation that can be claimed, and the awards are generally higher than those in England and Wales.
For example, if someone dies due to a delayed diagnosis and treatment of cancer, the Scottish system will look at the impact that person had on their whole family. Each relationship is assessed on its own merits taking into account the closeness of other family members to the deceased.
APIL's report highlights how the law in Scotland is fairer for families as it recognises the need for meaningful compensation to a wide range of bereaved relatives. For example, the law in Scotland recognises that a parent's love for a child does not diminish just because the child is over the age of 18. The law also recognises, for example, the huge part a grandparent can play in a grandchild's life, and the closeness of siblings. For instance, in the case of a deceased grandparent, the Scottish Court would recognise factors such as closeness to their grandchildren to determine the appropriate award for each grandchild.
APIL Pushing for Reforms
At an All-Party Parliamentary Group (APPG) meeting in 2024, Lorraine Gwinnutt, head of campaigns and communications at the APIL, posed a critical question, "Why should it be cheaper to kill someone negligently in Manchester, Birmingham, and London than it is in Glasgow, Aberdeen, and West Lothian?” She highlighted the issue of the "postcode lottery" system in the UK, which means that the eligibility of family members for compensation and the amount they receive can vary depending on where the cause of the deceased's death occurred. If the claim is brought in Scotland, more members of the family can expect to receive a fairer monetary sum for their grief and loss than in England and Wales.
Does a dependency claim serve as an equivalent substitute?
Under the Fatal Accidents Act, the second potential claim that dependents can make in England and Wales is a claim for loss of dependency. Dependency claims can be pursued by surviving dependents, such as spouses, cohabitees, children, and grandchildren. Unlike bereavement awards, dependency claims allow a wider range of family members to seek compensation, providing financial support to those who do not qualify for a Bereavement Award.
Under a loss of dependency claim, dependents need to show that they had received financial support or services from the deceased. Loss of services can include assistance with activities of daily living, DIY tasks, gardening, or childcare. For instance, grandchildren who were regularly dropped off at school by their grandfather before his death would be eligible for a dependency claim, as both the grandchildren and their parents can no longer rely on the grandfather for this specific service he provided.
Critics of expanding the Bereavement Award may reference the loss of dependency award and suggest that it offers financial support to family members who are not eligible for a Bereavement Award. They may argue that to broaden the eligibility criteria for a Bereavement Award in England and Wales may only result in an overlap between the two claims and lead to potential double recovery.
Trainee Solicitor, Yusuf Takoliya observes: “It is important to recognise that a loving relationship is not solely defined by the financial support or services provided by a person during their life, which the loss of dependency claim covers. A claim for loss of dependency is not intended to compensate solely for the emotional presence and affection of the deceased whilst they were alive, which is irreplaceable and leaves relatives with only grief. This is the aspect that the current Bereavement Award in England and Wales needs to take into consideration yet overlooks. Instead, it only compensates a limited number of categories of people and intentionally amounts to little more than a "token payment"."
MDS is a specialist medical negligence law firm. We specialise in claims involving cancer, maternity, and cauda equina syndrome. Our expert solicitors represent clients all around England and Wales, and we are dedicated to helping people who have been injured by medical negligence.
Our solicitors have extensive experience of representing clients and their families whose lives have been affected by a fatality. Click here to read more about how we can help you, and here to read one of our client’s stories.
If you are concerned about any care that you or a member of your family has received, please contact our experienced team on 0116 254 7456 or email: enquiries@moosaduke.com. You can also enquire online by clicking here.
