Scottish Court of Session Decisions

This was an action brought by John Anderson, inspector of poor in Maybole parish, against Andrew Paterson, inspector of poor in Irvine parish, for repayment of certain sums of money applied as parochial relief to the maintenance of Helen Higgins between 3d August 1874 and 23d July 1877. Helen Higgins was on 24th December 1873 (when parochial relief was first given to her) about 10 years of age, in a destitute condition, and suffering from an ulcer in one of her legs. She was then residing in Maybole parish, where she was born. Her father, William Higgins, was born in Ireland, and had in December 1873 no settlement in Scotland, but was living in the parish of Irvine, and on learning that fact the pursuer on 3d August 1874 gave to the defender the usual statutory notice that Helen Higgins had become chargeable, and claimed relief from Irvine as the parish of settlement. Shortly before that date William Higgins had, by five years' continuous residence in Irvine, acquired an industrial settlement in Irvine parish. During that time he had received no parochial relief, and would not have been entitled to any relief on his daughter's account. On 26th August 1874 the pursuer intimated to the defender that William Higgins refused to take his daughter or to maintain her, and it was admitted that the defender took no steps to remove the child from Maybole or to provide for her maintenance.

The defender pleaded, inter alia—“(5) The said Helen Higgins not having acquired a settlement, either derivatively or otherwise, in the parish of Irvine at 24th December 1873, the defender is not bound to repay any advances made or to be made, for her support by the pursuer, as concluded for. (6) Et separatim—the said William Higgins being at 24th December 1873 an ablebodied man, and not having then deserted the said Helen Higgins, she was not a proper object of parochial relief at said date.”

The facts as stated above were admitted in a minute lodged in process.

The Sheriff-Substitute ( Orr Paterson) found the defender liable to relieve the pursuer's parish of the advances made, and which might thereafter be made, to Helen Higgins, so long as she remained a proper object of relief and continued in Irvine parish. He added this note—

“ Note—Parties having renounced probation, and asked that the case should be disposed of on the admissions in process, the Sheriff-Substitute has pronounced judgment on the materials furnished by these admissions.

The admission that Helen Higgins was a proper object of parochial relief being made under the qualification that had she been living in family with her father he would not have been entitled to parochial relief on her account, amounts to this, that there was nothing exceptional in respect of the state either of her body or mind which entitled her to relief notwithstanding of her father being able-bodied, and that it was only in respect of her becoming destitute in the pursuer's parish, when living there apart from her father, that relief was rightly furnished to her.

The case of Wallace, 20th March 1872 ( 10 Macph. 675), seems to decide that relief so furnished to a wife or pupil child does not prevent the acquisition of a residential settlement by the husband or father; and that the settlement so acquired by the husband or father while the wife or child is receiving relief from and residing in another parish, inures to the wife or child (see also Palmer, 10 Macp. 185). If that be so, William Higgins, the father, had at the date of the statutory notice in August 1874 acquired a residential settlement in the parish of Irvine, and his settlement was the settlement of his pupil child.

The statutory notice was therefore properly given to the parish of Irvine, which at the date of notice was the parish of the child's settlement.

Under the 70th section of the Poor Law Act the relieving parish is bound to afford interim payment maintenance ‘until the parish or combination to which such poor person belongs be ascertained, and his claim upon such parish or combination admitted or otherwise determined, or until he shall be removed.’

Here the defender's parish on receiving the notice refused to admit liability or to remove the pauper; and under the Poor Law Act the relieving parish had no power to remove the

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child to her parish of settlement until liability was acknowledged or otherwise determined.

The pursuer's parish was therefore bound to continue to furnish relief to the child until the parish of settlement was determined, and is entitled to repetition thereof from the date of notice from the parish of settlement when determined.

The Sheriff-Substitute has felt some difficulty in determining whether the relieving parish was not bound to go directly against the father, who was an able-bodied man and liable for his child's support.

Beyond the fact that the relieving parish must have known before giving the statutory notice that the father of the pupil was residing in Irvine, there is nothing to show when the relieving parish came to knowledge of where the father was, and no admission is made on the point.

In that state of the admissions, the Sheriff-Substitute cannot hold that the relieving parish was in knowledge of the residence of the father for a time prior to the notice being given beyond what was necessary to allow of notice being given, or that the giving of notice was purposely delayed to allow of a residential settlement being acquired by the father before notice.

The question therefore resolves into this, is the parish relieving a pupil child bound to go against the able-bodied father; or is it entitled to go against the parish of the father's settlement?

The 71st section of the Poor Law Act provides, ‘That where in any case relief shall be afforded to a poor person found destitute in a parish or combination, it shall be lawful for the parochial board of such parish or combination to recover the monies expended on behalf of such poor person from any parish or combination within Scotland to which he may ultimately be found to belong, or from his parents, or other persons who may be legally bound to maintain him.’

This seems to give the relieving parish the option of suing the parish of settlement in the first place; and the judgment in the case of Wallace supports the view that this is a competent course.

Although the above interlocutor embodies what the Sheriff-Substitute regards as the result of the application of the principles laid down in the recent authorities to the facts of the present case, it is not without difficulty that he has arrived at a judgment which puts the burden of the support of the child on the defender's parish only in respect of what has occurred since the date at which the child became chargeable.”

The defender appealed to the Sheriff ( Campbell), who adhered. He declined to allow the defender additional proof.

The defender appealed to the Court of Session, and argued—The date of chargeability, and not the date of notice of chargeability was the terminus a quo at which the liability in respect of a pauper's settlement must be determined. The pauper's father not having acquired a settlement in Scotland at the time of her chargeability, but she having a legal settlement by birth in Maybole, that parish was liable for her relief. Further, the father being an ablebodied man at the time when relief was begun to be given, and not having then deserted his child, she was not at that time a fit subject for parochial relief.

Authorities— Petrie v. Meek, March 4, 1859, 21 D. 614; Jack v. Isdale, February 12, 1866, 4 Macph. (H. L.) 1; Murray v. Hutchison, March 20, 1867, Poor Law Mag. vol. ix., 1st ser.; Johnson v. Wallace, June 13, 1873, 11 Macph. 699; Beattie v. Adamson, November 23, 1866, 5 Macph. 53.

Argued for the respondent—As the father of the pauper had acquired and still held a residential settlement in the parish of Irvine, that settlement formed the settlement of his child; and as the pauper was during the time that parochial relief was afforded a proper subject for relief, the parish which afforded it was entitled to relief from the parish of her father's settlement.

Authorities— Wallace v. Turnbull, March 20, 1872, 10 Macph. 675; Palmer v. Russell, December 1, 1871, 10 Macph. 185; Adamson v. Barbour, May 30, 1853, 1 Macq. 376; Hay v. Paterson, January 29, 1857, 19 D. 332.

At advising—