Dependency claims: what rights to fatal accident compensation do co-habitees have when their partner dies?

When a loved one dies in an accident, fatal accident compensation can only be claimed in certain prescribed circumstances. Under the Fatal Accidents Act, 1976, only 3 groups of people are entitled to make a fatal accident compensation claim following the death of an individual in a UK accident: dependants of the deceased, close relatives of the deceased and the deceased’s estate. Under the act, husbands, wives or civil partners, parents or ascendants, children or other descendants and brothers, sisters, aunts and uncles can all make a claim for a loss of dependency.

But what’s the position for co-habitees? What rights do they have to claim fatal accident compensation? Well, legally they do have rights, but these have been strictly interpreted by the courts. To be able to make a claim under the Fatal Accidents Act, co-habitees will only be held to be a dependant if they living with the deceased in the same household for two years immediately before the date of death; and during the whole of the two year period they must have lived as though they were husband or wife or civil partner even if they did not have a specific title as such. So what happens to co-habitees sharing a household who have not fulfilled these criteria? Well, the case of those people Swift v Secretary of State for Justice, 2013, perfectly illustrates the point.

In that case Ms Swift had been cohabiting with the deceased partner for 6 months when he was fatally injured at work. She subsequently gave birth to his child 6 months later. Although a limited compensation payment was made by her partner’s former employers Ms Swift challenged the award and brought a dependency claim under the Fatal Accidents Act, 1976. Her case was dismissed by the high Court in 2012, on the grounds that she had been living with the deceased for less than 2 years immediately before his death. The claimant subsequently appealed to the Court of Appeal.

Ms Swift argued that s.1(3)(b) of the Act was incompatible with her rights under article 14 of the European Convention on Human Rights (ECHR) in conjunction with article 8, since it unjustifiably discriminated against persons who had been cohabiting for less than 2 years by excluding them from the class of family members entitled to claim damages for loss of dependency under the Act.

Ms Swift also argued that it interfered with her right to respect for family life contrary to article 8(1) in a manner which was not justified under article 8(2).

In considering s.1(3) the Court of Appeal made the following observations:

  • The legitimate aim of s.1(3) is to confer a benefit on dependants to recover damages in respect of their loss of dependency, while confining that benefit to those who had relationships of some degree of “permanence and dependence”;
  • There had to be some way of proving the requisite degree of permanency and constancy in the relationship beyond the mere fact of living together as husband and wife;
  • Due to the social and economic implications of enlarging the class of dependants, Parliament should be afforded a generous margin of discretion.

Ultimately, the Court of Appeal found that s.1(3)(b) was not incompatible with article 14 of the Convention in conjunction with article 8. It said it was a proportionate means of pursuing the legitimate aim of the statute. There was no obviously right answer, but the decision made by Parliament was not manifestly without reasonable foundation and was one which it was entitled to make. It followed that even if article 14 was engaged, the difference in treatment of cohabitees on the basis of 2 years’ cohabitation was justified.

The same reasoning inevitably led to the conclusion that, even if s.1(3)(b) amounted to an interference with the claimant’s right to respect for her family life in breach of article 8(1), it was justified under article 8(2).

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