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Where someone has died, and you wish to bring a claim you will come across the expression personal representatives. Both Acts refer to personal representatives of the estate.
If the deceased died having made a will the executor will be considered the personal representative and will have to take out a Grant of Probate. The Grant is required to show the personal representatives are entitled to make the claim on the deceased’s behalf.
If the deceased died without making a will, they died intestate, and Letters of Administration will have to be obtained – Please see our leaflet on Grant of Probate for more information, available at www.avma.org.uk/wp-content/uploads/Applying-for-probate.pdf.
Under the FAA, the personal representatives will be expected to bring a claim on behalf of the deceased’s estate within six months of the deceased’s death, if they do not, then the action may be brought by all or any of the dependents.
Limitation must be carefully considered. The limitation period is the time within which the claim must be issued at court. The starting point is to check whether the deceased (had they survived) would have been within the appropriate time limits to bring a claim – this is usually, three years from the date when the negligence occurred or the date the deceased know or ought to have known the negligence had occurred. You should seek legal advice as soon as possible if you are unsure of the position. You may also find it helpful to read our leaflet on time limits, available at www.avma.org.uk/wp-content/uploads/Legal-time-limits.pdf.If the deceased, had they survived, would have been within the three year limitation period for bringing a claim, then any dependents wishing to bring a claim will have three years from the date of the deceased’s death to bring their claim.
Any dependent of the deceased is entitled to bring a dependency claim under the FAA.
The Act clearly defines who can be considered a dependent and these are identified below:
Although a large group of people are recognised under the Act as being potential dependents, the claim will only succeed if the person seeking to bring a dependency claim can show that the deceased contributed to their financial support. For example: If the deceased did not contribute to his/her parents’ upkeep during their lifetime, those parents will not succeed in bringing a claim for dependency under the FAA. If the deceased did pay maintenance to an ex-spouse, then the ex-spouse will be able to make a dependency claim.
If the deceased was in receipt of state benefits which are then lost to the family as a result of their death, a claim may be made based on the lost benefits.
The FAA allows a very modest award of damages to be paid because of someone’s death due to negligence. The amount payable is fixed by law and is known as the statutory bereavement award. As of 1st May 2020, the amount you can receive in England and Wales is £15,120, prior to this date the award was £12,980.
As from the 1st May 2019, the amount you can receive in Northern Ireland is £15,100 (previously £14,200).
Scotland operate their awards process differently and consider the amount paid on a case-by-case basis.
The statutory bereavement award may be made in addition to any claim for dependency but not everyone is entitled to a bereavement award. The class of people eligible to claim a bereavement award is much smaller than the list of people eligible to make a dependency claim. The group of people eligible to receive a bereavement award is set out below.
Only one award is payable, so if a wife and a co habiting partner of the deceased both make a claim for a statutory bereavement award, the award will be divided equally between them, after any deductions for costs. Similarly, if the parents of an unmarried minor both make a claim, the award shall be divided equally between them.
1. living with the deceased in the same household immediately before their death AND 2.had been living with the deceased for at least two years before the death. AND 3. was living during the whole of that period as the wife, husband, or civil partner of the deceased.
The reasonable cost of funeral expenses can be recovered provided these were paid for by the dependents. If the funeral expenses were paid for by the deceased’s estate, then these costs need to be recovered by the estate under the Law Reform Miscellaneous Provisions Act (see below).
Please note, compensation for the reasonable cost of funeral expenses will not be paid twice. You cannot recover under say, The Law Reform Miscellaneous Provisions Act 1934 and then claim again under the Fatal Accidents Act 1976.
The estate will be able to bring a claim on behalf of the deceased for any losses the deceased would have been entitled to recover had they survived.
The main types of claims brought under this Act are:
1. Claims for pain, suffering and loss of amenity calculated from the date of the injury to the date of death. 2. Any special damages eg loss of earnings, medical expenses, care costs etc. Again, this is calculated from the date of injury to the date of death. 3. Funeral expenses if the estate paid for these. If the dependents paid for these, then the dependents should recover the reasonable funeral costs under the Fatal Accidents Act (see above)
Under the Law Reform (Miscellaneous Provisions) Act 1934:
Under the Fatal Accidents Act 1976:
Flowchart showing the main types of compensation claims that may arise after a death in England, distinguishing claims made on behalf of the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 from claims by dependants under the Fatal Accidents Act 1976.