Ms Smith and Mr Bulloch had been living together as husband and wife for around 11 years when Mr Bulloch died in October 2011 as a result of the negligence of the Lancashire Teaching Hospitals NHS Foundation Trust and Lancashire Care NHS Foundation Trust. As a result, Ms Smith made an application for damages under the 1976 Act of £11,800, which was, at that time, the set statutory amount of bereavement damages. Ms Smith's application was refused on the basis the provision for payment of bereavement damages under section 1A of the 1976 Act did not apply to cohabitees. She appealed the decision as contrary to Articles 8 (right to family life) and Art 14 (prohibition against discrimination) of the European Convention on Human Rights (ECHR). She was unsuccessful in the lower court but her appeal was upheld in the Court of Appeal. While the remedy is legally complex it is interesting in considering the relationship between the articles of the ECHR; Smith v Lancashire Teaching Hospitals NHS Trust & Anor  EWCA Civ 1916,
Before Article 14 can apply in any ECHR challenge the substance of the claim must fall within the "ambit" of another article, in this case Article 8. Only then can the court consider whether there has been a breach of Article 14. In this case there was much discussion around the relevant cases discussing what "ambit", "scope" and "linked" mean in the Strasbourg jurisprudence. The conclusion however was that the claim did fall within the ambit of and engaged Article 8 and the right to family life. This meant Article 14 could be engaged even if there had not been an actual breach of Article 8.
From that position the court went on to consider the discrimination claim under Article 14. Section 1 of the 1976 Act provided a qualified right of action on the part of dependants if a death had been caused by any wrongful act, neglect or default. "Dependants" were defined and included a person who has been living with the deceased for a period of at least two years before the death as the husband or wife of the deceased. Ms Smith would have met this definition so she would have had a right of action against the trusts. However section 1A, which provided a statutory entitlement to bereavement damages, included a list of those who could apply but did not include cohabitees in the way which had been done under section 1. There was no explanation given to explain this difference.
The court decided that there had been discrimination against cohabitees in this situation and this was a breach of Article 14 ECHR. While there may have been no obligation for Parliament to have provided this benefit in this particular way, if it chose to do so it must apply the provisions in a non discriminatory way. It had not done so. While the court was entitled under the Human Right Act 1998 to interpret legislation to make it ECHR compliant if that were possible, in this case it was too great a step to add in all the words necessary and anticipate the policy implications to make it compliant. That was a matter for Parliament. The court therefore issued a declaratory of incompatibility in terms of section 4 of the Human Rights Act 1978 and it will be for the Government and Parliament to amend the legislation to make it compliant.
In Scotland the situation is much clearer. There is no provision similar to that in sections 1 and 1A of the 1976 Act. Damages in Scotland are provided for under the Damages (Scotland) Act 2011 (the 2011 Act"). Much of the 2011 Act sets out when or how a claim may arise, the process relating to a claim and most importantly for this consideration, who can make a claim. Section 14 of the 2011 Act defines "relatives" and includes a person who "is living with the deceased as if married to…..the deceased": a cohabitee. There is no time limit set out in the 2011 Act as to when this test will be met but case law suggests the courts would probably be looking for a similar period to that set out in the 1976 Act. There may however be particular circumstances where a lesser period might be accepted.
In short, Ms Smith would have had an immediate remedy waiting for her in Scotland without, necessarily, a trip to court, had she or Mr Bulloch been subject to the jurisdiction of Scots law. However we would not then have had the benefit of the Court of Appeal's helpful update on "ambit" in ECHR law.
Lynda Towers is an expert in public law, and able to assist with human rights queries as arose in this case. Morton Fraser handles many reparation cases, such as the one raised by Ms Smith. Should you have a query about defender reparation, contact the head of our Defender Reparation Team, Jenny Dickson.