Recommendation 5

The Court of Appeal made a “declaration of incompatibility with Article 14 (ECHR) in conjunction with Article 8 in respect of section 1A of the FAA in that it excludes 2 years + cohabitees”. The draft Remedial Order inserts “cohabiting partners” into section 1A of the FAA, as defined in section 1(3)(b) of the FAA. In our view, the draft Remedial Order adequately addresses the judgment of the Court of Appeal, by extending the bereavement damages scheme to cohabiting couples (who have been living together for at least two years prior to the death), thereby removing the unlawful discrimination identified by the Court of Appeal. However, the Government has adopted a narrow approach to remedying the incompatibility. In our previous report, we raised a number of other matters for the Department’s 18 Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report consideration. We are disappointed to see that the Government has rejected each of our recommendations, particularly where we have identified persisting discrimination against cohabiting couples. We reiterate our key concerns below and ask the Government to reconsider its position.