Kincardine County Council v Aberdeen County Council
| Jurisdiction | Scotland |
| Judgment Date | 18 June 1940 |
| Date | 18 June 1940 |
| Docket Number | No. 47. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
PoorSettlementPupil childMaintenance of mental defective in institutionLiability for expenses of maintenanceChange of settlement of defective's fatherWhether defective's settlement also changedMental Deficiency and Lunacy (Scotland) Act, 1913 (3 and 4 Geo. V, cap. 38), sets. 27, 35 and 49Local Government (Scotland) Act, 1929 (19 and 20 Geo. V, cap. 25), sets. 1 (1) and 18 (3).
The pupil daughter of a farm servant was certified in 1936 to be a feeble-minded person within the meaning of the Mental Deficiency and Lunacy (Scotland) Act, 1913; and as such she was detained in an institution for mental defectives. At the date of certification her father's settlement for poor law purposes was in the County of Aberdeen. He was not in receipt of poor relief in respect of himself or of his daughter, and, as he was unable to meet the cost of her maintenance in the institution, it was defrayed by the county. The father subsequently acquired by residence a settlement within the County of Kincardine, and a question arose as to whether thereafter the County of Aberdeen or the County of Kincardine was liable for the expense of her maintenance.
Held, upon an examination of the relevant provisions of the Mental Deficiency and Lunacy (Scotland) Act, 1913, and the Local Government (Scotland) Act, 1929, that no exception had
been introduced in the case of mental defectives to the rule that the legal settlement of a pupil child follows the settlement of its father unless the child can be brought within the category of a pauper within its own right; that the child in the present case could not be brought within that category in respect that she was not in receipt of poor relief or public assistance, nor was she destitute; that accordingly her settlement had changed with the change in her father's settlement, and that the County Council of the County of Kincardine was liable thereafter for her maintenanceA special case, to which the County Council of the County of Kincardine were the first parties and the County Council of the County of Aberdeen were the second parties, was presented for the opinion and judgment of the Court upon the question of the incidence of liability for the maintenance of a mentally defective pupil child.1
The case, which had been amended after being called before the Second Division, set forth:"1. In or about October 1936 A B, daughter of C B, who is a farm servant in the County of Kincardine, was certified by the school medical officer of the County to be a feeble-minded person within the meaning of the Mental Deficiency and Lunacy (Scotland) Act, 1913, and as such she has been maintained since October 1936 in the Baldovan Institution, Downfield, Dundee. 2. The said A B is a pupil, having been born on 21st July 1929. 3. At the date of the above-mentioned certification the said C B, who is not in receipt of or entitled to poor relief but who is unable to pay for the maintenance of the said defective in an institution, had his settlement for poor law purposes in the county of Aberdeen, and since the certification of the said child the second parties paid for the maintenance of the said defective child in the said Baldovan Institution. The said C B has not been placed on the roll of poor of either county in respect of the present circumstances of his said child, nor has he ever been on such roll of poor. 4. Accounts rendered by an institution such as the said Baldovan Institution are divided between maintenance costs and providing costs, as these terms are defined in section 27 of the foresaid Act. The whole cost incurred in respect of an inmate such as the said A B is met from the consolidated rate levied upon the whole county. The cost of providing is charged against the Mental Deficiency Account, while the cost of maintenance is charged one half against Mental Deficiency and one half against Education. No charge is made in the County accounts against either poor law or lunacy, and the Lunacy and Mental Deficiency Account as prescribed by the Secretary of State in the County Council (Accounts) Order (Scotland), 1930, discriminates between those charges attributable to lunacy and those attributable to mental deficiency. 5. The said C B, however, has now acquired by residence a settlement for poor law purposes within the area of the first parties, and a question has arisen between the parties hereto as to the obligation of the first parties to reimburse the second parties in respect of sums paid by the second parties for the maintenance of the said defective child since the date of change of settlement of the father."
The case further set forth:"6. The parties are agreed that, if the settlement for poor law purposes of the said A B is now within the area of the first parties, the first parties are liable for the maintenance of the said A B as from the date of change of settlement of the said C B, and are under obligation to reimburse
the second parties in respect of sums paid by them for the maintenance of the said A B since that date. On the other hand, if the settlement for poor law purposes of the said A B is now within the area of the second parties, the parties are agreed that the second parties are still liable for her maintenance "The first parties contended that, upon a true construction of the Mental Deficiency and Lunacy (Scotland) Act, 1913, and the other relative statutes, no change had occurred in the settlement for poor law purposes of A B while being maintained in Baldovan Institution, and that the first parties were not liable for her maintenance. The second parties contended that, upon a true construction of the Act of 1913 and other relative statutes, the acquisition by C B of a settlement within the area of the first parties had resulted in a change of the settlement of A B, that her settlement was now within the area of the first parties, and that these parties were liable for the maintenance of A B as from the date of the change of settlement of C B.
The questions of law were:"(1) Has the change of settlement of the said C B effected a change in the settlement of the said A B and therefore in the incidence of liability for the maintenance of the said A B? (2) (a) Are the first parties liable for the maintenance of the said A B as from the date of change of settlement of the said C B? or (b) Are the second parties still liable for the maintenance of the said A B?"
The case was heard before the Second Division (without Lord Wark) on 22nd and 23rd May 1940.
At advising on 18th June 1940,
LORD JAMIESON.The question for decision in this case is which of the County Councils is liable to bear the cost of maintaining in an institution for mental defectives A B, the pupil child of an able-bodied farm servant. In 1936 she was certified to be a...
To continue reading
Request your trial