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A lunatic who had a derivative residential settlement, derived from her father, in the parish of K. continued for more than five years after his death to reside ont of the parish of K. in an asylum, where she was maintained by a brother. At the end of that period she became chargeable as a pauper. Held in a special case between the parish of K. and the parish of her birth settlement that she had lost her settlement in the parish of K. by nonresidence, and that her birth parish was liable.
Crawford and Petrie v. Beattie, 24 D. 357; and Thomson v. Kidd and Beattie, 9 R. 37, 19 S.L.R. 25, followed.
Elsie Gordon Grant, daughter of James Grant, was committed to the Royal Lunatic Asylum, Aberdeen, on 20th November 1885 as a private patient, and with the exception of two short intervals, viz., from 31st March 1893 to 20th April 1893, and from 29th May 1894 to 29th June 1894, during which she resided in family with her father James Grant, she continued to reside there as a private patient until 1st April 1900, when she was transferred to the pauper roll.
James Grant died in January 1895. His daughter Elsie was born on 19th March 1866 in the parish of Kirkmichael, in which her father James Grant resided for about two years after her birth She lived in family with her father until she was committed to the asylum in 1885. For the twenty-two years preceding his death her father resided in the parish of Keith, where he acquired a residential settlement which he possessed at his death. Until he died James Grant maintained his daughter in the Aberdeen Asylum, and after his death she was maintained there by her brother until 1st April 1900, when she became chargeable.
Questions having arisen as to what parish was liable for the pauper Elsie Grant, a special case was presented for the opinion of the Court of Session.
The parties to the special case were (1) the Parish of Keith, and (2) the Parish of Kirkmichael.
The first party maintained that on 1st April 1900, when Elsie Grant became a pauper, her settlement was in the parish of Kirkmichael as the parish of her birth; and the second party maintained that at that date she was chargeable to the parish of Keith, in respect of her having a derivative settlement in that parish through her father.
The questions of law were—“(1) Was the settlement of the pauper, the said Elsie Gordon Grant, in the parish of Keith, on 1st April 1900, when chargeability commenced, and is the parish of Keith bound to pay for her maintenance subsequent to that date? or (2) Was the settlement of the pauper, the said Elsie Gordon Grant, in the parish of Kirkmichael, on 1st April 1900, when chargeability commenced, and is the parish of Kirkmichael bound to pay for her maintenance subsequent to that date?”
Argued for the first party—The pauper had lost the residential settlement in the parish of Keith which she had derived from her father, because during a period of four years after his death she had not “resided in such parish continuously for at least one year and a day”—Poor Law (Scotland) Act 1898 (61 and 62 Vict. cap. 21), sec. 1. It was said that because the pauper was insane she was incapable of losing her derivative settlement. This proposition was supported by the decision in Melville v. Flockhart, December 19, 1857, 20 D. 342; but that case had been overruled by the Whole Court case of Crawford and Petrie v. Beattie, January 25, 1862, 24 D. 357. A lunatic who had acquired a residential settlement before becoming insane might by non-residence during insanity lose that settlement— Thomsons. Kidd and Beattie, October 28, 1881, 9 R. 37, 19 S.L.R. 25. The fact that the pauper's settlement was not acquired by herself but derived from her father made no difference— Boyd v. Beattie and Dempster, July 12, 1882, 9 R. 1091, Lord Young p. 1095, 19 S.L.R. 812; Parish Council of Falkirk v. Parish Councils of Govan and Stirling, June 12, 1900, 2 F. 998, Lord Kinnear, p. 1010, 37 S.L.R. 759—and the pauper's absence from the parish of Keith began to take effect to deprive her of her derivative settlement as soon as her father died— Fraser v. Robertson, June 5, 1867, 5 Macph. 819, Lord Cowan p. 822, 4 S.L.R. 74. The Lunacy (Scotland) Act 1857 (20 and 21 Vict. cap. 71), sec. 75, which provided that a pauper lunatic should be chargeable to the parish in which he had a settlement at the time of his reception into a district asylum, did not apply in the circumstances
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of the case. Elsie Grant was not a pauper lunatic when admitted to the asylum, and that fact distinguished the present from the case of Kirkwood v. Lennox, July 10, 1869, 7 Macph. 1027, 6 S.L.R. 670. Argued for the second party—The parish of settlement was to be determined by the settlement of the pauper at the date when admitted to the asylum. No doubt by nonresidence a lunatic might lose his settlement if an acquired one, but the cases quoted by the first party did not apply to a derivative settlement— Palmer v. Russell, December 1, 1871, 10 Macph. 185, 9 S.L.R. 134—and the fact that part of Elsie Grant's residence as a lunatic was not that of a pauper lunatic made no difference. The pauper was a lunatic in the sense of sec. 75 of the Lunacy (Scotland) Act 1857, and her settlement at the date of her admission to the asylum was in the parish of Keith, the parish of her father's settlement. She was never forisfamiliated, her father's settlement was always hers, and in the case of a perpetual pupil absence in an asylum did not lead to loss of settlement.
At advising—
The pauper Elsie Gordon Grant on 20th November 1885 was committed to the Royal Lunatic Asylum, Aberdeen, as a private patient. She was then about 19 years of age. She has continued to be an inmate of that asylum ever since, with the exception of two short intervals from 31st March to 20th April 1893, and from 29th May to 29th June 1894, when she was removed by her father and lived in family with him in the parish of Keith.
Her father died in January 1895. During his life she was maintained in the asylum by him, and after his death by her brother, until 1st April 1900, when she was transferred to the pauper roll.
It is admitted that the pauper's father had a residential settlement in the parish of Keith at the time of his death.
It is not at all doubtful that the pauper's settlement was that of her father. She was never forisfamiliated, and must be regarded as having been a child in his family. She never, in fact, appears to have had an independent existence— Fraser v. Robertson, 5 Macph. 819. Her settlement, therefore, on her father's death in January 1895 was a residential settlement in the parish of Keith derived from him, and the question, as I have said, is whether she has retained that settlement.
It will be observed that the pauper has been continuously absent from the parish of Keith for upwards of five years since her father's death, and has not resided there for one year continuously or at all during these years. Unless, therefore, the fact that she was a lunatic during this time is to make a difference, I think there can be no doubt that she has failed to retain her residential settlement in that parish under the provisions of the 1st section of the Poor Law Act 1898.
I think this case is ruled by the case of Crawford, 24 D. 357. In that case the pauper's birth settlement was in the parish of Eaglesham. Prior, however, to September 1851, he had acquired a residential settlement in the Barony Parish of Glasgow. He then left that parish and resided in the parish of Wishaw till August 1854. He then became insane, and was removed by his friends to a lunatic asylum in the parish of Govan, where he was supported by them till July 1856; when he became a pauper he had never returned to the Barony Parish. It will be observed accordingly that the pauper had been for upwards of four years continuously absent from the Barony parish, without having resided there one year continuously, but that he became a lunatic before he had been three years absent from the parish.
The question was, whether the pauper had failed to retain his residential settlement in the Barony Parish because he had not resided therein for one year out of the five years succeeding 1851, when he left it.
The case went to the Whole Court. A minority, consisting of Lords Ivory and Deas, were of opinion that a question of settlement was to be determined by the state in which matters stood at the date of the pauper's lunacy; that as a lunatic could not acquire, so neither could he lose a settlement; and that therefore as the pauper had been less than three years absent from the Barony Parish when he became insane, he had not lost his settlement in that parish.
The majority, however, were of a different opinion. They held, overruling the case of Melville v. Flockhart, 20 D. 341, that the full period of time prescribed by the statute having elapsed between the date of the pauper's migration and the date of his becoming chargeable, the only question under the 76th section of the statute was, whether during that interval he had or had not resided cqntinuously in the parish for at least one year, and as that question could not be answered in the affirmative he could not be held to have retained his settlement, and that it was immaterial that during the latter part of the time which elapsed after he left the Barony Parish he had been inflicted with insanity.
That case was followed by the case of Thomson v. Kidd, 9 R. 37. In that case the pauper had a residential settlement in the Barony Parish in the year 1864. He then became insane and a proper object of parochial relief. He continued to be a lunatic pauper down to the year 1873, and that parish therefore continued to be liable for his maintenance. In 1873, although he continued to be a lunatic, he ceased to be a pauper, having then been removed by his friends, with whom he resided and by whom he was supported until 1879, when he again became a pauper. During these
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I cannot distinguish these cases from the present. It is true that they were decided under the 76th section of the Poor Law Act of 1845, and that this case is under the 1st section of the Poor Law Act of 1898, but the two sections are identical as regards this question.
I am therefore of opinion that the first question should be answered in the negative, and the second in the affirmative.
The
The Court answered the first question in the negative, and the second in the affirmative.
Counsel for the First Party— Salvesen, K.C.— W. Brown. Agents— Alexander Morison & Company, W.S.
Counsel for the Second Party— Clyde, K.C.— Deas. Agent— Charles George, S.S.C.