Scottish Court of Session Decisions

Frederick Alexander, labourer, had five children, of whom the eldest, James, born in the parish of St Cyrus in 1861, was from the age of one or two years paralysed on the right side, suffered from epileptic fits, and was rather weak-minded. For nine years prior to Martinmas 1874 Frederick Alexander lived in Laurencekirk. At that date Frederick Alexander removed with his wife and children, including James, to Montrose, and resided there continuously till the date of this action (January 1882). In July 1878, Frederick Alexander being then an able-bodied man, his wife applied in Montrose for relief on behalf of James, which was granted at the rate of 3s. a week, James remaining an inmate of his father's house. The name of James was entered on the roll of poor for Montrose. This relief continued to be given until 8th December 1881, when James was removed from his father's house and lodged in the Sunnyside Lunatic Asylum at Montrose as a pauper lunatic, where he was up to the date of this action, at the expense of Montrose.

This action was raised in the Sheriff Court of Kincardineshire by Alexander Milne, inspector of poor of the parish of Montrose, against George Ross, inspector of poor of the parish of Laurencekirk, for the sum paid in relief of James Alexander, being the above-mentioned 3s. a week from July 1878 to December 1881, and all subsequent sums thereafter expended or to be expended on James Alexander by Montrose while he should require parochial aid and have his settlement in Laurencekirk. The pursuer averred that James Alexander had become in July 1878, when he granted relief, chargeable in his own right, he being paralytic and subject to epilepsy, and, though sixteen and a half when relieved, suffering under severe and permanent disease, which prevented his doing anything to earn his own living.

The defender did not admit the pursuer's averments as to the condition of James Alexander, except his removal to an asylum. He averred that prior to his removal to an asylum he was not forisfamiliated. He also averred that he was able to do light work.

The Sheriff-Substitute ( Dove Wilson) pronounced an interlocutor allowing the pursuer “a proof of his averments, in so far as relevant to support the claim for repayment of the relief which was afforded prior to Martinmas 1878, and to the defender a conjunct probation;” quoad ultra he assoilzied the defender.

“ Note.—This case seems to me to be ruled by that of Milne v. Henderson and Smith, December 3, 1879, 7 R. 317.

“When Frederick Alexander left Laurencekirk at Martinmas 1874 his son James resided in family with him, and was about thirteen years of age. James, therefore, at that time had no settlement of his own, but took a derivative one through his father, who had then acquired a residential settlement in Laurencekirk. The only claim which relief afforded to James could raise up against Laurencekirk would expire as soon as his father lost his residential settlement there, which would be at Martinmas 1878, unless prior to that the father had become a proper object of parochial relief. It is settled, however, by the case to which I have referred, that the relief given to the son James, however properly given, could not make the father a pauper, and therefore did not interrupt the father's loss of settlement in Laurencekirk by non-residence. For these reasons it seems to me to be clear that at Martinmas 1878 any claim against Laurencekirk expired.

“This disposes of the main question in the case, as it decides that wherever James Alexander's settlement may now be it is not in Laurencekirk, and accordingly that that parish is not liable for his maintenance in the asylum to which it has unfortunately become necessary to admit him. Laurencekirk being thus right in my opinion on the main question involved, I have found it entitled to the expenses hitherto incurred. As the defender does not on record admit that the aliment supplied to James between July and Martinmas 1878 was rightly given, there will have to be a proof upon that point, and upon its result will depend the liability for any further expenses which may be incurred.”

The pursuer appealed to the Sheriff ( Guthrie Smith), who recalled the Sheriff-Substitute's interlocutor, and allowed the pursuer a proof of his averments, and to the defender a conjunct probation, and remitted to the Sheriff-Substitute, who thereafter, in respect that he had already given his opinion on the law applicable to the case, made avizandum with the proof to the Sheriff. It appeared from the evidence of his parents and of medical men that though James Alexander could run messages and do occasional odd jobs he was mentally and physically incapacitated from learning a trade or gaining a continuous livelihood. He was to a great extent paralysed on his right side, and subject to epilepsy. His memory was weak, and he was subject at times to great excitement, but he was not continuously insane.

The Sheriff pronounced this interlocutor:—“Finds it proved that on the 18th July 1878 the pauper James Alexander, being paralytic, subject to epileptic fits, and suffering from mental and physical weakness, which ultimately rendered his removal to an asylum necessary, became chargeable to the Parochial Board of Montrose; that he was then living with his parents, was nearly seventeen years of age, and had never been forisfamiliate; that as a destitute person in his own right, he was entered in the roll of poor, and that at the date of chargeability his settlement was in the parish of Laurencekirk: Finds in law that this [Laurencekirk] is his settlement as long as the pauperism continues: Therefore repels the defences, decerns in terms of the conclusions of the summons, &c.

“ Note.—On the 18th July 1878 the Parochial Board of Montrose advanced to James Alexander the sum of 3s. a week. He was a boy about seventeen years of age, and resided with his

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parents. He was paralytic, subject to epileptic fits, and had ultimately to be sent to an asylum. No medical certificate was obtained, but the inspector says he lived in the same street, and was well acquainted with the circumstances of the family, and the helpless condition of the pauper, who has since been unable to do anything for his own support. Of course, his father, being an able-bodied man, had no right to relief. But when any of the family suffers from mental weakness a different rule applies. The party then becomes a destitute person in his own right within the meaning of the statute. If he requires to be removed to an asylum, the expense is necessarily beyond a working-man's means, and the poor law undertakes to provide for him. The lunatic ceases to be a member of the household, and the burden devolves on the parish which was his settlement at the date of admission; but as regards the rest of the family, their settlement is unaffected by the lunatic being on the pauper roll. Their settlement may change, but he continues chargeable to the parish to which he belonged when admitted.

“Although there is an express provision to this effect in lunacy statutes, it is not unimportant to observe that the principles of the poor law lead to the same conclusion. In relieving destitution we have to deal, in the ordinary case, with families rather than individuals. We cannot separate father, mother, and children, and so long as the family bond is unbroken, relief is given to the head for himself and all dependent upon him. The father's settlement is that of the family, and hence the doctrine of derivative settlement, with its many ingenious refinements, which have caused such needless confusion, and are, indeed, the reproach of the poor law. So, also, if the father is able-bodied, and is not entitled to relief, the younger members of the family are no better. But when, through the visitation of Providence, any of them becomes insane, his case must be dealt with separately. The law requires that he shall be secluded from society, or at least specially cared for, and there is no reason, but the contrary, why his necessities should involve the whole family in one common destitution. The lunatic becomes a pauper in his own right, just as if he had been forisfamiliated, and his settlement is not affected by the subsequent movements of the family.

“If, therefore, in July 1878, when the present claim was intimated, James Alexander had been sent to an asylum, the burden would certainly have fallen on Laurencekirk, for beyond doubt that was then his settlement. The family had lived there for five years. They had removed to Montrose, and the settlement in Laurencekirk was running off, but their absence was insufficient to effect this result until November 1878.

“In point of fact, however, the patient was not sent to an asylum for some time after. The inspector did not consider it necessary to separate him from his mother, but entered him on the roll as the recipient of 3s. a-week. There are many occasions on which this is not only a humane course, but a wise and proper one in the interests of the ratepayers. Is it to be said that when a person's mental and physical condition amounts to permanent disability for the business of life, and the family are too poor properly to supply his wants, an inspector is in no case entitled to interfere until the patient is a confirmed lunatic? This is practically what the defender's arguments come to If such a principle were admitted in the administration of the poor law it would be extremely pernicious. The village fool would be left destitute and uncared for—a reproach to humanity. The Poor Law Act has committed a large discretion to the inspector, and the relieving committee with whom he acts, and, on the whole, that discretion has been well exercised—with a due regard to the dictates of common kindness and Christian feeling as well as the interests of the ratepayers. A court of law cannot review their decision, because no one can have the same knowledge of the facts as persons resident on the spot. It can only inquire whether their decision was legal on the face of it, and rested on grounds fairly sufficient; and that, I take it, is the only practical question which in this case has to be determined.

“It may not be very easy to indicate the considerations which should influence an inspector in deciding the question whether a lad living in family with his parents is a destitute person in his own right by reason of physical or mental infirmity, but generally they are of the same class as the considerations which require to be kept in view in fixing the amount of the relief. These have been repeatedly explained by the Lunacy Board. They are—(1) the ability of the guardian, and the legal or moral obligation he is under to help in his support; (2) the ability of the patient himself to contribute; (3) the need for special diet or nursing; (4) how far does the presence of the lunatic interfere with the bread-winning power of the family; (5) the irksomeness of the duties which proper attention to him involves; and (6) the cost of living in the neigh-bourhood—(See Report of the Commissioners in Lunacy for 1883, page 38).

“It appears that there are six children younger than James in this family, the youngest being now only some months old. James has never been able to do anything for his own support. The father makes 17s. a-week; but in the autumn of 1878, when relief was given, he says he did not make on an average above 6s. a-week. When the mother leaves James alone, she gets a neighbour to attend to him, as he cannot be trusted alone on account of his liability to fits. The medical evidence is to the effect that while the state of his mind would not per se prevent him from earning a living, he suffers from partial paralysis, is regularly subject to epileptic convulsions, has never been able to work, and is not likely to be so. In fact, he is so weak in body and mind as to require to be cared for by others, and considering his father's circumstances at the time the application was made for relief, I am not prepared to say that relief was improperly given.

“Very frequently it is not for the advantage of a patient to send him at once to an asylum. It saves a good deal of money to keep him with his friends, for while the cost of a pauper lunatic in an asylum ranges from 13 pence to 20 pence a day, in a private dwelling it may not exceed 5 1 2d., and many forms of mental disease may be as well treated at home as in a public establishment for the insane. In refraining, therefore, from at once sending the pauper in this case to an asylum, the pursuer was simply following the instructions of the Lunacy Board. The Commissioners say in

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their last report—‘It is always desirable, when practicable, to place a patient with capable guardians, who either from the tie of relationship or otherwise have an affectionate interest in his welfare, and we are disposed to encourage the recognition of such ties when consistent with the interest of the patient’ (Report, p. 38). If a small sum will enable a patient to live with his relatives, it is infinitely better for all concerned that the claim should be recognised by admitting him to the pauper roll, rather than that he should be wholly thrown on the parish with the certain result of his being at once removed to an asylum.

If, then, the relief given was neither in amount nor in form in excess of the power belonging to the Parochial Board, to whom was it administered? It was paid, no doubt, to the boy's mother, but it was given to be spent on the lunatic, and not on the other members of the family. It was, in fact, relief given to the boy himself, whose name accordingly was entered on the roll of the poor.

The chargeability then begun has since continued. By his own personal pauperism he ceased to be a member of the father's family, and his settlement could not possibly be affected by their movements. This doctrine of shifting settlements is one for which the statute will be appealed to in vain. The case referred to by the Sheriff-Substitute, if I understand it properly, was of a different nature from the present. As was said in one of the earlier cases, I cannot understand how a man, entered on the roll of paupers as one of the permanent poor, can go to bed with one settlement and rise with a different one in the morning.”

The defender appealed to the Court of Session, and argued—James Alexander was not a pauper while his father's settlement in Laurencekirk continued, and the relief given to the father, an able-bodied man, in Montrose in July 1878 in respect of a weak child did not pauperise him or prevent him changing his settlement at Martinmas thereafter along with that of his unforisfamiliated child. James Alexander was therefore no pauper, nor was he forisfamiliated till he was admitted to a lunatic asylum in December, at which time his father's settlement was in Montrose. The lunacy law which pauperised him was not invoked till that time—Lunacy Act, sec. 75. The relief given prior to that was given in charity by an act of discretion, and not in the exercise of the poor law— Milne v. Henderson and Smith, supra cit.; Graham v. M'William, February 22, 1881, ante, vol. xviii. p. 322. It was impossible to find any legal ground on which relief so given could rest. The case of Kirkwood v. Knox, June 3, 1868, 40 J. 503, was the only case which pointed in that direction, and there the father was not, as here, able-bodied. The number of children in the family was of no significance.

Additional authorities for defender— Palmer v. Russell, December 1, 1871, 10 Macph. 185; Petrie v. Meek, March 4, 1859, 21 D. 614; Hay v. Paterson, January 29, 1857, 19 D. 332; Guthrie Smith's Poor Law, 195.

The pursuer replied—The question was not whether he had acted rightly or wrongly in giving relief in July 1878. James Alexander was then a proper object of relief, and if so, there must be a pauper, and that was either the father or the son. On either supposition Laurencekirk was liable, for the settlement of both was then there. The relief either pauperised the father or forisfamiliated and pauperised the son in his own right. The circumstances of this case were distinguishable from those of Milne, for there the child was a lunatic from birth, while here he was only a person suffering from a disease which merely impaired his power of gaining a living, and from which he might recover. Further, the case of Milne was inconsistent with Beattie v. Adamson, November 23, 1865, 5 Macph. 47, and Hay v. Paterson ( supra).

At advising—