The price of love
An underwhelming valentine’s gift
On and around Valentine’s Day I often think of the clients whose fatal accident cases I have settled. They may now be secure financially, but have they been able to move on and start a new life with a new partner? For me the best part of fatal accident work is knowing that I have taken care of a family at the worst time of their life, and that if I were the unfortunate deceased, I’d be grateful for me having done so.
This year I find myself pondering something else; is it precious or perverse that the government passed legislation on bereavement damages; the compensation paid to certain groups when a loved one dies, on the eve of the most romantic day of the year?
What’s the issue?
In short, couples who were not married have previously been denied the bereavement award. The matter was thrust into the media by the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916.
It mattered not that they had been in a loving relationship and living together for decades, the mere absence of a wedding ring on the finger was sufficient to render the relationship insignificant.
Jacqueline Smith took her case to the Court of Appeal for a declaration that the Act was incompatible with the European Convention of Human Rights. She was successful, and yesterday the government passed a Bill that would bring the Act into the modern day.
What’s the new law?
As of 5 March 2020, a partner who has been living in the same home as the deceased for at least two years, in a relationship akin to that of a married couple, will be entitled to the award. It’s still not a perfect solution though.
So, what’s the cost of a partner?
First off, I don’t think anyone will argue that you can’t put a price on a life, but the government had to take a stab at it to set the level of award; £12,980. Don’t ask me how they have come to that, it could quite easily be the lifetime’s cost of cards, flowers and meals for Valentine’s Day. It’s an uncomfortable concept, but it doesn’t feel quite right.
Many had hoped that the government would review the rate of award alongside the change in law, but they didn’t; they will simply make an adjustment to count for inflation since the rate was last set in 2013, in due course (whenever that may be).
The debate goes further though; should everyone receive the same amount? No relationship is the same, but it’s widely discussed that the “value” of a partnership or marriage can vary, and that the effect of the loss of a partner can hit one harder than another. Take for example a marriage of convenience. Two career driven people, who are married, but only see each other a few times a month when they happen to be at the home they share at the same time. It works for them, but their spouse actually has little impact on their day to day life. Do they suffer the same degree of bereavement as the couple who has never spent a day apart since their wedding; not bearing to go a day without speaking to and holding their “soul mate”?
You may think that nobody has the right to answer that question. The government thinks so, which is why it is not prepared to set a tariff or any other form of discretion that would allow one spouse to receive more than another. But others disagree, Scotland included, where bereavement awards have reached as much as £140,000 for the “right” couple. There are many advocates of a more fluid award system, more akin to how compensation for pain and suffering is awarded; i.e. from a sliding scale of severity and judicial discretion based on individual facts. In other words, a full analysis of the specific relationship in question.
This debate will no doubt continue, but it looks as though it may take another social shift (or more likely a Judicial Review) for the government to grab the issue by its horns.
It’s all about the kids? Think again!
For many, marriage, partnership, co-habitation, however you choose to love and live, is a foundation for starting a family. I’m not a father, but I’m told that the love you have for your child is so strong that’s in a league of its own. It’s no surprise then that if you lose your child in an accident, the government will grant you a bereavement award… as long as the child was under 18.
Yes, like Cinderella’s carriage, that deep, uncontrollable love for your child just vanishes at the stroke of midnight on their 18th birthday, apparently.
I can only hazard a guess as to why this may be. Historically, financial dependency claims for children have stopped at 18; most likely based on the mid-20th century norm that by then a child will have moved out, got a job and even started their own family. Their reliance on you for love and affection is gone, they are now responsible for providing it to another.
Times have changed. Many “children” still live with their parents at 30; they have as a close a bond as they did age 13. The parents may still support them financially and emotionally through university. It’s difficult to see why the government has not taken the opportunity to correct this, and recognise that the loss of a child of any age is as devastating as losing a partner.
Finally, I’d like to finish on a high, but it get’s worse… if a child loses its parent; there’s no award whatsoever. What is probably the most harrowing and life changing event in a life, goes totally unrecognised by the law. It would have been simple to include children (under the age of 18 if necessary, to keep in line with irrational approach applying to parents) in the new definition approved yesterday. No explanation has been given for not going this far.
It’s important to note that cost is unlikely to be a factor, as the law states that where two or more people are eligible for the bereavement award, it is to be shared amongst the qualifying Claimants, not awarded to each of them. It can’t therefore be argued that widening the scope of bereavement will be unsustainable to the NHS or the insurance industry. But should that even be a factor? We’re not exactly talking about significant sums here.
Reflection
So how do I bring this to a close? I’ve said what there is to say really… the change is great, it’s a shame that it only deals with the tip of the iceberg.
There is only one thing we can all do; forget what might happen (or not, as may be the case) should the worse occur; focus on the now and enjoy every moment with whoever you are spending Valentine’s Day with; because those moments and that time is not something that any claim can claw back for you.
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