Scottish Court of Session Decisions

On October 29th 1845 a circular was sent by the Board of Supervision to all inspectors of poor, containing “rules instructions, and recommendations to parochial authorities,” which included the following clause:— “If an inspector shall have relieved a poor person found destitute and belonging to another parish, it is the duty of such inspector, immediately on discovering to what parish such poor person belongs, to send a notice in writing with a statement of the circumstances to the inspector of that parish.”

On 14th January 1894 Mrs Marion M'Lean or Gardiner residing at Braehead, Cathcart, applied to the Inspector of Poor of the parish of Cathcart for parochial relief, and was allowed 6s. 6d. a week for herself and two children.

The Inspector of Poor of Cathcart sent, on 23rd January 1894, to the Inspector of Poor of the parish of Houston, a post-card in the following terms—“Case of Marion M'Lean or Gardiner, Braehead, Cathcart.— “Sir,—In terms of the Act 8 and 9 Vict, cap. 83, sec. 71, I hereby give you notice that the above-named poor person, whose settlement appears to be in the parish of Houston, has, as a pauper, become chargeable to the Parochial Board of this parish, which claims relief and repayment of all advances and charges incurred, or that may be incurred, in respect of said poor person, from you as representing the parish of settlement. The grounds of this claim will be sent to you on an early date.”

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No answer to this intimation was received.

On 3rd March 1897 another post-card in the same terms was sent, and on 11th March 1897 a letter asking for an admission of liability, and having annexed a statement of particulars of Mrs Gardiner's case.

In June 1898 the Parish Council of the parish of Cathcart brought an action against the Parish Council of Houston, concluding for £87, 4s. 11d., being the amount disbursed by the parish of Cathcart in relieving Mrs Gardiner from 23rd January 1894 to 3rd May 1898.

The defender admitted that Mrs Gardiner had a settlement in the parish of Houston, but denied liability, and made the following averments:—“Mrs Gardiner was not at the date of the notice on 23rd January 1894 properly chargeable as a pauper, and the notice was invalid and inept to confer a right of relief under the statute. Further, the said notice contained no particulars which would enable the defenders' predecessors to verify the claim, but stated that the grounds of the claim would be sent on an early date. It is customary when a pauper becomes chargeable on a parish in which he has no settlement, for the inspector in such parish to send out preliminary notices to all the parishes with which the pauper has been connected, pending the ascertainment of the particular parish which is liable to maintain him, and to follow up such notice by a statement of particulars to the parish actually found to be liable. If no such particulars are sent, it is understood by the inspectors receiving such preliminary notices that some other parish has been found liable, and no further attention is paid to the notice. In the present case the inspector of the defenders' parish received no other or further communication from the parish of Cathcart until the notice of 3rd March 1897, and in the circumstances above stated the defenders and their predecessors understood, and it was the case, that the claim against them was waived.”

The pursuer pleaded, inter alia—“(1) The settlement of the said Mrs Marion M'Lean or Gardiner being in the parish of Houston, and she having been since the 14th January 1894 a proper object of parochial relief, the pursuers are entitled to decree of declarator as concluded for.”

The defenders pleaded—“(1) The defenders are not liable to reimburse the pursuers for their expenditure on the pauper prior to 3rd March 1897, in respect ( a) that no notice was given in terms of the statute after the pauper became chargeable; ( b) that the alleged notice of 23rd January 1894 was inept and invalid; and ( c) that in any case the pursuers are barred by their actings and delay from founding on said notice.”

On 15th June 1899 the Lord Ordinary ( Low) pronounced the following interlocutor:—“Finds that the parish of Houston is the parish of settlement of the pauper Mrs Marion M'Lean or Gardiner, described in the summons, and that the said parish is bound to refund the monies expended by the parish of Cathcart in behalf of said pauper from and after the date when notice was sent to the Inspector of Poor for the parish of Houston in terms of the 71st section of the Act 8 and 9 Vict. c. 83: Finds that such notice was not sent until the 3rd March 1897, and that the amount expended by the pursuers on behalf of said pauper between that date and 3rd May 1898 amounts to the sum of £17, 18s. 9d.: Therefore decerns and ordains the defenders to make payment to the pursuers of the said sum of £17, 18s. 9d., with interest thereon at the rate of five per centum per annum from said 3rd May 1898 until payment; and further, decerns and ordains the defenders to free and relieve the pursuers in all time coming of all alimentary and other advances or disbursements that have since May 3rd 1898 been or may hereafter require to be made by the pursuers on account of the said Mrs Marion M'Lean or Gardiner during the time she continues a proper object of parochial relief, and decerns,” &c.

Opinion.—“The form in which notice was given in this case was one which was very commonly used, although I doubt whether it was in conformity with the Poor Law Act.

When an inspector of poor relieved a pauper who did not belong to his parish, he commonly sent notices, without giving particulars of the case, to all the parishes in which he thought the pauper might possibly have a settlement. Then when he had inquired into the circumstances and discovered which of the parishes to which he had sent notices was truly the parish liable, he sent a note of the circumstances to the inspector of that parish, and made no further communication to the inspectors of the other parishes to whom he had originally sent notices. If therefore an inspector to whom a notice had been sent did, not soon thereafter receive a note stating the circumstances under which it was maintained that his parish was liable, he assumed that upon inquiry it had been found that the pauper was not chargeable to his parish.

The reason for giving notice in that form was that the parish of settlement was only liable from the date of notice from the relieving parish.

The matter is regulated by the 71st section of the Poor Law Act 1845. It is there provided that the relieving parish may recover the moneys expended on behalf of the pauper from any parish ‘to which he may be ultimately be found to belong,’ provided that written notice of the pauper having become chargeable shall be given to the parish ‘to which such poor person belongs.’

It appears to me that these provisions contemplate that only one notice shall be given, namely, to the parish which the relieving inspector shall ascertain to be the parish of settlement. Of course cases do arise in which it is impossible for the relieving inspector to say which of two or more parishes is truly liable, and in such a case it is necessary to send notices to both or all of these parishes. But I can see no warrant in the Act for the scattering of random notices before the relieving inspector has had an opportunity of making such inquiries

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as are necessary to enable him to form an opinion as to the true parish of settlement.

By the 90th section of the Act the Board of Supervision was empowered to fix the form of any notice or intimation required to be given by the Act.

The Board do not appear to have fixed a precise form of notice, but in a circular issued to inspectors of poor soon after the passing of the Poor Law Act, containing rules and directions upon a variety of matters, the notice to be given by a relieving parish is dealt with (section 20) as follows:—‘If an inspector shall have relieved a poor person found destitute and belonging to another parish, it is the duty of such inspector, immediately on discovering to what parish such poor person belongs, to send a notice in writing with a statement of the circumstances to the inspector of that parish.’

I think that that was a rule which the Board were entitled to make under the 90th section of the statute. The direction that the notice should be sent ‘on discovering to what parish such poor person belongs’ is just what the statute provides, and the direction that the notice should be accompanied ‘with a statement of the circumstances’ was obviously a reasonable provision in the working out of the statute.

But further, I think that the notice sent by the Inspector of the parish of Cathcart on 23rd January 1894 was, upon the face of it, incomplete.

It concludes with the words— ‘The grounds of the claim will be sent to you at an early date.’ These words seem to me to recognise the obligation of the inspector making the claim to put the inspector against whom the claim was made in possession of the circumstances alleged to infer liability on the part of his parish, and I think that the latter was entitled to assume that if the claim was to be persisted in particulars would be sent within a short period.

That also appears to have been the view taken by the Inspector of Cathcart, because the matter having been allowed to lie over until March 1897, what was then sent to the Inspector of Houston was not a statement of circumstances applicable to the notice of January 1894 but a new notice.

The latter notice consisted of a partly printed post-card in precisely the same terms as that sent in 1894, and it was followed in a few days by a detailed statement of the circumstances under which the claim was made.

The defenders admit their liability from the date of the second notice, but they contend that they are not liable to relieve the pursuers of the sums expended prior to that date. I am of opinion, for the reasons which I have given, that the contention of the defenders is well founded.”

The pursuers reclaimed, and argued—The notice sent in 1894 was a good notice under sec. 71 of the Poor Law Act (quoted in rubric). All that was there required was that the notice should be in writing. No precise form had been laid down by the Board of Supervision under sec. 90 (quoted in rubric). Even if the excerpt from the rules and regulations, quoted supra, was an exercise of the powers of the Board under section 90, it was merely an administrative direction to inspectors of poor, not a condition of the right to relief. It did not expressly state that non-compliance with its terms would bar the relieving parish from recovering its advance; if it had, it would have been ultra vires of the Board. The mere fact that the notice promised further information could not affect the right of relief if the notice without that promise was good. At the most it might support a plea of mora or personal bar if as a matter of fact the parish of Houston could prove that they had been in any way prejudiced.

Argued for the respondents—The Board acted under statutory authority, and the observances of their regulation was obligatory. A notice not complying with that regulation did not satisfy the provisions of section 71. The Board in issuing the regulations quoted above was acting under the authority of section 91, and their regulation had the authority of statute. The vagueness of the regulations might cover vagueness in the information supplied, but here there was no information whatever. The defenders had been prejudiced by the form of the notice. It led their inspector to believe that if no further particulars arrived it was not necessary for him to take any action in the matter. Otherwise he would have investigated the matter and diminished the expense incurred. That was sufficient to relieve the parish of settlement from liability— Jack v. Chisholm, June 14, 1864, 2 Macph. 1221; Jack v. Fraser, July 19, 1861, 4 Poor Law Mag. 22.