Bereavement: What Price, Life?

Thanks to Helen Waller for this update on the forthcoming changes to bereavement awards.

From 1 May 2020, bereavement damages awarded under the Fatal Accidents Act 1976, s.1A(3), will increase to £15,120 for causes of action that accrue from that date (see the variation order here).

The Government has described bereavement awards as being “a token payment payable to a limited group of people” (at para 18 of the Government Response to the JCHR, here), a choice of words that perhaps comes across as a little uncharitable. Yet, as a “token payment”, it’s hard at first to see why the Government has, over the years, chosen such precise figures. However, a little digging in the historical legislation reveals that the sum was initially £7,500 and remained so until 2002. From then it increased to £10,000, thereafter in 2008 and 2013 it was ostensibly increased in line with inflation to £11,800 and £12,980 respectively. The power to vary the statutory sum remains vested in the Lord Chancellor.

Aside from the sum awarded, problems with bereavement damages remain. In 2017 the Court of Appeal declared the current regime incompatible with the ECHR in the case of Smith v Lancashire Teaching Hospitals [2017] EWCA Civ 1916. The Court held that bereavement awards should be extended to cohabitants who had been in a relationship for 2 years or more. A draft Remedial Order has been proposed by the MoJ to address this. It and the Government response can be found here. The proposed extension would clearly have significant implications for unmarried, but cohabiting, asbestos claimants. However, the proposal is moving through the non-urgent procedure and in the current climate of Covid-19 its progress may be hindered.

20 March 2020: a significant date for landlords and tenants

This post was written by James Beeton a few weeks ago with a view to being published on 20 March 2020, a date which is significant for reasons which James explains. The post was written before the Covid-19 situation had become as serious as it is now. We wish all of our readers the very best in this difficult period.

Asbestos disease claims by tenants against their landlords are not straightforward. In many cases, the written documents setting out the terms of the relevant lease may no longer be available due to the passage of time. This poses obvious practical difficulties for tenants who want to argue that their exposure to asbestos on the property was due to a breach of a term of the lease. They will usually have to put their case in this way because the landlord does not generally owe a tortious duty of care for dangerous features of the leased property: Cavalier v Pope [1906] AC 428.

Tenants under short-term (less than seven-year) residential tenancies can reasonably say that their lease must have included the statutorily implied obligation to keep the “structure and exterior” of the property in good repair pursuant to s. 11 of the Landlord and Tenant Act 1985 (or its substantively identical predecessor, section 32(1)(a) of the Housing Act 1961). But, even assuming that the relevant feature was part of the “structure and exterior”, does the failure to prevent the natural deterioration of asbestos-containing materials over time constitute a lack of repair (which is covered by s. 11) or is it just a failure to “make safe” a dangerous existing feature of the property (which is not covered)? This question has not been tested and it is likely to be controversial.

Given this uncertainty, 20 March 2020 is – or, at least, eventually will be – a significant date for asbestos practitioners. The Homes (Fitness for Human Habitation) Act 2018 came into force on 20 March 2019. This amended the Landlord and Tenant Act 1985 at ss. 9A and 9B to provide that homes let under short-term tenancies have to be fit for human habitation at the start of the tenancy and must remain so throughout the duration of the tenancy. The obligation also covers common parts of the building in which the landlord has an interest. A home which contains deteriorating asbestos is unlikely to be regarded as fit for human habitation: see the Housing Health and Safety Rating System (England) Regulations 2005, sch. 1, para. 4. The significance of 20 March 2020 is that it marks the end of a grace period for landlords in respect of short-term leases entered into before that date. All premises let under short-term leases must now be reasonably fit for human habitation.

A similar provision applies in Wales, but only where the rent is below limits which are so low that it is unlikely to have any practical application: Landlord and Tenant Act 1985, s. 8. Protections equivalent to those in England are set out in the Renting Homes (Wales) Act 2016, s. 91, but they have not yet been brought into force.