Smith v Lancashire Teaching Hospitals NHS Foundation Trust& Ors (Rev 2)

A statutory benefit falls within Article 8 for Article 14 purposes where it is a positive modality having more than a tenuous connection with the core value of respect for family life. No additional serious adverse impact is required.

Bereavement damages recognise the grief ordinarily arising from an intimate familial relationship. Their exclusion of a long-term cohabiting partner therefore discriminated between analogous relationships. As no justification was established, the exclusion was incompatible with Article 14 read with Article 8.

The court could not extend eligibility through interpretation under the Human Rights Act 1998. Doing so would contradict an ingrained legislative distinction and require policy choices reserved to Parliament. A declaration of incompatibility was therefore appropriate.

The appellant had lived with the deceased as husband and wife for more than 11 years. He died through the admitted negligence of two NHS trusts. Her dependency claim under section 1 of the Fatal Accidents Act 1976 was compromised, but section 1A excluded her from bereavement damages because they had not married or entered a civil partnership.

Edis J dismissed her claim for a Convention-compliant interpretation or declaration of incompatibility: [2016] EWHC 2208 (QB). He held that the bereavement scheme fell outside the ambit of Article 8, although he found that the appellant had other status, was relevantly analogous to a widow and that the difference in treatment lacked justification.

The appeal concerned whether the scheme fell within Article 8 for Article 14 purposes and, if so, whether section 1A could be read compatibly or required a declaration of incompatibility.

1. Appeal allowed; respondent’s notice dismissed. Article 14 can apply without a breach of Article 8. Where the state creates a positive measure which is a modality of an Article 8 right, the connection between the measure and Article 8’s core values must be more than tenuous. Apart from exclusion from the benefit, a claimant need not prove serious adverse impact: paras [41]–[56].

2. The bereavement-damages scheme under section 1A of the Fatal Accidents Act 1976 fell within Article 8. By confining compensation principally to spouses and civil partners, the scheme recognised grief arising from the intimacy ordinarily inherent in those relationships. It was therefore a positive measure showing respect for family life. Its fixed amount and operation only after death did not make the connection tenuous: paras [71]–[80].

3. Whether unmarried and married partners are in analogous situations depends upon the scheme under examination. For bereavement damages, the material feature was the intimacy of a stable, long-term relationship and the grief caused by its wrongful destruction, rather than marriage’s separate legal status. The appellant’s relationship was therefore sufficiently analogous to marriage or civil partnership to require justification for different treatment: paras [82]–[93].

4. The Secretary of State did not challenge the judge’s conclusions that the appellant had “other status” and that the difference in treatment lacked justification. Section 1A’s exclusion of cohabitees who had lived together as spouses or civil partners for at least two years was consequently incompatible with Article 14 read with Article 8: paras [40], [80], [90]–[104].

5. Section 3 of the Human Rights Act 1998 could not be used to extend section 1A. The deliberate difference between sections 1 and 1A was an ingrained legislative feature. Extension would also require policy choices about competing spouses and cohabitees, division or priority of awards, and the qualifying period. A declaration under section 4 was the appropriate relief: paras [94]–[100].

6. The appellant abandoned her claim for £11,800 damages under section 8 because section 6 preserved conduct compelled by primary legislation. The court set aside the order below and made the declaration of incompatibility: paras [101]–[106].

1. Court of Appeal (Civil Division): The appeal was allowed, the respondent’s notice was dismissed, the order below was set aside and section 1A of the Fatal Accidents Act 1976 was declared incompatible with Article 14 read with Article 8: [2017] EWCA Civ 1916.
2. High Court, Queen’s Bench Division: Edis J dismissed the claim, holding that the bereavement-damages scheme fell outside Article 8’s ambit, although the appellant had other status, was relevantly analogous to a widow and the differential treatment lacked justification: [2016] EWHC 2208 (QB).