Self-help guide

Compensation where someone has died

Where a person’s death has been due to negligence, a claim for compensation can be made by the deceased’s dependents under the Fatal Accident Act 1976, and/or a separate claim may be made on behalf of the deceased’s estate under the The Law Reform (Miscellaneous Provisions) Act 1934.

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Please contact our Medical Negligence & Inquests team for a free, confidential, no obligation chat to see how they could support you in your claim. Call our team on 01603 620508 or email enquiries@fosters-solicitors.co.uk. Find out more on our website.

Who are the personal representatives?

Where someone has died and you wish to bring a claim for compensation, you will come across the expression personal representatives. Both Acts relevant to this area 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. This is required to show that the personal representatives are entitled to make the claim on the deceased’s behalf.

If the deceased died without having made a will (intestate), letters of administration will have to be obtained. Please see our guide on applying for probate or letters of administration for more information.

The Fatal Accidents Act 1976: Dependency claims

Time limits for bringing a claim

Under the Fatal Accidents Act 1976 (FAA), the personal representatives of the deceased will be expected to bring a claim on behalf of their estate within six months of the person’s death. If they do not do so, the action may be brought by all or any of the dependents.

Limitation

Limitation must be carefully considered — the time within which the claim must be issued. The starting point is to check whether the deceased (had they survived) would have been within the appropriate time limits to bring a claim — usually three years from the date on which the negligence occurred or the date on which they knew or ought to have known the negligence had occurred.

Seek legal advice as soon as possible if you are unsure of the position. You may also find it helpful to read our guide on the time limits for making a claim. If the deceased, had they survived, would have been within the three-year time 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 the claim.

Who is a dependent?

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:

• a wife, husband, or civil partner of the deceased,
• a former wife or husband of the deceased (including a person whose marriage to the deceased has been annulled or declared void),
• a cohabiting partner — to be eligible, the partner will have to be able to show that they were living with the deceased in the same household immediately before their death, had been living with the deceased for at least two years before the death, and was living during the whole of that period as the wife, husband, or civil partner of the deceased,
• any parent or other ascendant (e.g. grandparent) of the deceased,
• any person who was treated by the deceased as their parent,
• any child or other descendant (e.g grandchild) of the deceased,
• any child who was not a child of the deceased, but who was treated as a child of the deceased’s family because of marriage or civil partnership,
• any brother or sister of the deceased or their children,
• any uncle or aunt of the deceased or their children, and
• in the case of a person who has a female parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, the legitimate child of his mother and that female parent.

Important things to note about a dependency claim

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 their parents’ upkeep during their lifetime, those parents will not succeed in bringing a claim for dependency under the FAA. If the deceased paid maintenance to an ex-spouse, however, they will be able to make a dependency claim.

Compensation for loss of dependency is assessed in two stages:

• damages from the date of death to the date of trial, and
• the estimated future loss from the date of trial.

Where the deceased was a parent who was not working or bringing in a wage, the spouse or partner may be able to make a claim referable to the cost of employing a housekeeper, providing they continue to work. The courts will also recognise a sum for “unreplaceable services”. If the spouse or partner gives up work to look after their child(ren), the claim may be made for loss of earnings. An award will also be made to the children for loss of a parent.

Claims for dependency tend to be assessed in a particular way depending on whether the claim is on behalf of a surviving partner, or on behalf of a surviving partner and dependent children:

• If the dependency claim is on behalf of a surviving partner, generally the claim is calculated as 66% of the joint family income, less the income of the surviving partner.
• If the dependency claim is on behalf of a surviving partner and dependent children, generally the approach tends to be 75% of the joint family income, less the income of the surviving partner.

Any money which may be received by way of inheritance or life insurance policies shall be ignored for the purposes of a dependency calculation.

State benefits

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 this loss.

The Fatal Accidents Act 1976 (FAA): Statutory bereavement award

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.

• The amount you can receive in England and Wales is up to £15,120.
• The amount you can receive in Northern Ireland is up to £15,100.
• Scotland operates their awards process differently and considers the amount paid on a case-by-case basis.

Who can claim a statutory bereavement award?

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.

Only one award is payable, so if a spouse and a cohabiting partner of the deceased both make a claim for a statutory bereavement award, this 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.

The following people are eligible to claim a bereavement award:

• a wife, husband, or civil partner of the deceased,
• a cohabiting partner — to be eligible, the partner will have to be able to show that they were living with the deceased in the same household immediately before their death, had been living with the deceased for at least two years before the death, and was living during the whole of that period as the wife, husband, or civil partner of the deceased,
• the parents of an unmarried minor (under the age of 18 years) where the child was legitimate, and
• the mother of an unmarried minor (under the age of 18 years) where the child was illegitimate.

The Fatal Accidents Act 1976 (FAA): Funeral expenses

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 the Law Reform Miscellaneous Provisions Act 1934 and then claim again under the Fatal Accidents Act 1976.

Law Reform and Miscellaneous Provisions Act 1934: Claim on behalf of the deceased’s estate

The estate will be able to bring a claim on behalf of the deceased for any losses they would have been entitled to recover had they survived. The main types of claims brought under this Act are:

• claims for pain, suffering and loss of amenity calculated from the date of the injury to the date of death,
• any special damages, e.g. loss of earnings, medical expenses, care costs (again, calculated from date of injury to date of death), and
• funeral expenses, if the estate paid for these (if the dependents paid for these, the dependents should recover the costs under the FAA).