Scottish Court of Session Decisions

The Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap. 83) enacts—Section 68—[ quoted in rubric]. Section 71—“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 moneys expended in behalf of such poor person from any parish or combination within Scotland to which he may ultimately be found to belong. …”

The Parish Council of the Parish of Melrose, pursuers, brought an action in the Sheriff Court at Duns against the Parish Council of the Parish of Gordon, defenders, for payment of £44, 16s. 11d., with interest, being the amount of sums expended by the pursuers for the relief of George Darrie and his children, whose settlement was in the the defenders' parish, and for relief from all further advances on behalf of George Darrie.

After a proof the Sheriff-Substitute made the following findings in fact:—“(1) That George Darrie, who was born in 1882 in Eccles parish, Berwickshire, sustained an injury in 1910 by which he lost his left arm from a point an inch or two below the elbow; (2) that he was working then as a shepherd on his father's farm in Eccles parish; (3) that when his injured arm had healed he returned and did odd jobs upon said farm; (4) that his father died in 1911 and bequeathed to him £1200; (5) that in May of 1913 he left said farm and took up residence within defenders' parish at East Gordon, and there acquired a settlement; (6) that while there he was engaged in several forms of occupation such as hawking, crofting, rabbit catching—in some cases on his own account, in others under an employer; (7) that in May of 1917 the sum which he inherited, as well as other sums which he had regularly earned, was finished, and in December 1919 he changed his residence again and went to live at Langlee in pursuers' parish; (8) that from May 1917 until October 1921 he was engaged in occupations such as stoking engines, supervising timber felling, and night watching, to which he brought a fair amount of physical capacity by which he was enabled to maintain himself and family on wages ranging from 30s. to 65s. per week; (9) that from 17th October 1921 to 12th May 1922 be, being an insured person under the Unemployment Insurance Acts, received a benefit thereunder of 26s. per week as ( ex hypothesi) a person physically fit for work but unable to obtain a suitable employment; (10) that when this benefit had ceased in May of 1922 he applied on 22nd May to Melrose Parish Council for relief, and on their medical officer's certificate that he was not able-bodied but could do light work received from them the sums sued for, amounting to the total sum of £44, 16s. l1d.; (11) that Darrie's settlement was then still defenders' parish.…”

The pursuers pleaded, inter alia—“1. The pursuers having made the said advances, and being liable to make further advances on behalf of the said George Darrie and his wife and family, and the defenders' parish being the parish of settlement of the said George Darrie, the defenders are bound to relieve the pursuers of said advances, and decree should be granted as craved.”

The defenders pleaded, inter alia—“1. Darrie not being under such disability to work as to prevent him earning his subsistence, is not a fit subject for parochial relief, and the defenders should be assoilzied with expenses. 2. Darrie having been afforded assistance by the pursuers as an unemployed man and under the provisions of the Poor Law Emergency Provisions (Scotland) Act 1921, they are not entitled to be reimbursed sums paid by them by any other parish, and the defenders should be assoilzied with expenses.”

On 28th March 1924 the Sheriff-Substitute ( Macaulay Smith) pronounced the following interlocutor:—[ After the findings supra]—“Finds in fact and law that Darrie was within the period of the payment of said sums an able-bodied man and had no legal claim to payment of said sums conform to the provisions of the Poor Law Act of 1845, and that said sums could only have

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been and were paid conform to the provisions of the Poor Law Emergency Provisions (Scotland) Act 1921: Finds in law that the defenders are not liable for repayment of said sums: Therefore repels pursuers' pleas-in-law, and assoilzies the defenders from the conclusions of the action. …”

Note.—“The mutilation of an arm or leg is of itself a simple fact and can, it seems to me, no more determine the question of a person's able-bodiedness within the meaning of the Act of 1845 than can the loss of an appendix or a tooth. The doctors' evidence for the pursuers' case forms an illustration of this point of view. Dr M'Millan says no man is able-bodied who has lost part of a limb, and Dr Somerville maintains that while a clerk who lost a foot would still be able-bodied as a clerk, he would not be quite able-bodied—explained by him to mean that every case is classified by him with reference to a man's capacity to work at unskilled labour.

It is clear, I think, that both these doctors hesitated to associate the right to claim parochial relief with personal injury per se. And so they rather strained the question of the handicap a one-armed man would have against his two-armed fellows, and the competition he would have to face in search of work when work was scarce. Stripped of this question of an economic handicap the impression left upon my mind by the evidence of pursuers’ witnesses was that Darrie was and is a more than average healthy man with an unfortunate physical defect.

Of course it stands to reason that a twoarmed man can do more kinds and heavier kinds of work than can a one-armed man, and also that in general and for more skilled work employers would prefer a two-armed man, But to argue thus is to evade the obvious meaning of the Act of 1845. That Act nowhere professes to ensure the man who is not able-bodied of a wage or even an approximation to a wage commanded in the labour market by the able-bodied man, nor does it guarantee to find him work against the competition of the able-bodied man. Instead of this the Act provides that no disabled man unfit for work shall be allowed to starve. If such a man is destitute he has a claim against the parish where he lives to be relieved from destitution.

In this case the question therefore comes to be—Was Darrie in a state of destitution when he made his claim against pursuers' parish, and was he disabled in such a manner as to be unfit for work, i.e., work of any kind which could maintain him beyond destitution? This seems, no doubt, a harsh interpretation, but so far as I can see it is the only promise which the Act holds forth.

The destitution here is not disputed, and the only question therefore comes to be—Was Darrie when he made his claim against pursuers' parish non-able-bodied in the meaning of the Act?

At the hearing the authorities in law were fully quoted to me by both counsel in the case, but since it seems to me a judgment here depends so much on facts I make no reference individually to the bulk of them. It seems to me that individual reference to one of these authorities may serve. In that case, Macpherson v. Parish Council of Kilmore and Kilbride (1921 S.C. 300), it was stated in the nature of a definition by the Lord President that a man is not able-bodied if he is suffering physical disability reventing him from earning a living for is wife and family. I accept that definition unreservedly and I ask—Does Darrie's disability then come within it? He came to make his claim on Melrose parish straight from the stoppage of an out-of-work allowance granted to him as ( ex hypothesi) an able-bodied man. Did his disability prevent him from earning a living for his wife and family? His own statement which is at points corroborated by other witnesses is that from May of 1917 to October 1921 he lived upon his wages and supported both his family and himself. During this period his wages ranged from 30s. to 65s. per week—an average in these years of about £2 per week or fully half more than pursuers have allowed him as relief.

I come to the conclusion therefore that Darrie was not prevented by his disability from earning a living for himself and family, and that therefore that disability could not be called non-able-bodiedness within the meaning of the Act. The payments made to him are not therefore in the circumstances payments sanctioned by the Act of 1845 and therefore also cannot be recovered from defenders' parish. They may of course be sanctioned by the terms of the Emergency Act of 1921, but neither in that case are they recoverable from the defenders' parish.

A question was debated between parties as to whether parochial relief was meant to cover maintenance of both an applicant and his family, but since the fact is that Darrie did maintain his family and himself the question does not call for practical solution in this case.”

The pursuers appealed, and argued—Darrie was a proper object of relief under the Poor Law (Scotland) Act 1845 (8 and 9 Vict. cap 83), and the pursuers were entitled to recover from the defenders the moneys which they had expended on his behalf—Poor Law (Scotland) Act 1845, sections 32, 33, 68, 69, and71. A mentally and physically handicapped man was not “able-bodied” within the meaning of the proviso of section 68. Although a man might not be “able-bodied,” nevertheless he ought to perform his legal obligation of supporting himself and his family, and it was competent to prove that he was fit to do so. If that were proved, he was not a “poor person” and was not “destitute” within the meaning of section 71. Where, however, a man was not “able-bodied,” there was an onus on those who alleged that he was not a “poor person” and was not “destitute,” of proving what they alleged. In order to succeed in proving that he was not a poor person and was not “destitute” it was necessary to show that he was fit to support both himself and his family. That was the economic unit, and it was not sufficient to show merely that he was fit to support himself. The question was primarily one of

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his physical and mental capacity to earn his livelihood. The question of his employability was one for proof. It depended on various considerations. The fluctuations of the labour market entered into the question— Macpherson v. Kilmore and Kilbride Parish Council, 1921 S.C. 300), 58 S.L.R. 273; Old Machar Parish Council v. Aberdeen Parish Council, 1912 S.C. 26, 49 S.L.R. 20, per Lord Dundas at 1912 S.C. 31, 49 S.L.R. 23, and Lord Salvesen at 1912 S.C. 35, 49 S.L.R. 25; Scott v. Beattie, 1880, 7 R. 1047, 17 S.L.R. 714, per Lord President (Inglis) at 7 R. 1048, 17 S.L.R. 715; Beattie v. M'Culloch 1880, 7 R. 907, 17 S.L.R. 645, per Lord President (Inglis) at 909, 17 S.L.R. 646; Knox v. Hewat, 1870, 8 Macph. 397, per Lord Cowan and Lord Benholme at 400, 7 S.L.R. 230; Jack v. Isdale, 1866, 4 Macph. (H.L.) 1, 1 S.L.R. 156; M'Ewan v. Beatty, 1865, 7 Poor Law Magazine, p. 283; Jack v. Thom, 1860, 23 D. 173, per Lord Cowan at 178, Lord Benholme at 179, and Lord Justice-Clerk (Inglis) at 180; Petrie v. Meek, 1859, 21 D. 614, per Lord Justice-Clerk (Inglis) at 621; Lindsay v. M'Tear, 1852, 1 Macq. 155, per Lord Truro at 159; M' William v. Adams, 1852, 1 Macq. 120; Graham, Poor Law, (ed. of 1922) pp. 3 and 266; Guthrie Smith, Poor Law (3rd ed.) pp. 195–7; Poor Law Magazine, vol. xxxiii, p. 236. The facts proved in the present case showed that Darrie was not “able-bodied” and that he was a “poor person” and was “destitute.” Reference was also made to Glasgow Parish Council v. Cromdale Parish Council and Dundee Combination Parish Council, 1923 S.L.T. 557, per Lord Murray (Ordinary) at 562; Unemployment Insurance Act 1921 (11 Geo. V, cap. 1); Act 1698, cap. 21; Act 1696, cap. 29; Act 1695, cap. 43; Act 1672, cap. 18; Act 1600, cap. 19; Act 1597, cap. 292; Act 1592, cap. 149; Act 1579, cap. 24; Privy Council Proclamations of 3rd March 1698, 31st July 1694, 29th August 1693, and 11th August 1692.

Argued for the respondents—Darrie was not a proper object of relief under the Poor Law (Scotland) Act 1845, and the pursuers were not entitled to recover from the defenders the moneys which they had expended on his behalf. In considering the question as to whether or not a man was “able-bodied” it was irrelevant to take into account fluctuations of the labour market or the man's fitness to support his family. A man might be “able-bodied” although he might not be so strong as some other man. The question as to whether or not a man was “able-bodied” was a comparative question, and the best test was experience—Had the man been able to keep himself? If a man was disabled by infirmity he was entitled to relief under the Act, but not so if he was merely unable to find work— Macpherson v. Kilmore and Kilbride Parish Council, cit., per Lord President (Clyde) at 1921 S.C. 302, 58 S.L.R. 274; Old Machar Parish Council v. Aberdeen Parish Council, cit.; Scott v. Beattie, cit.; Beattie v. M'Culloch, cit.; Jack v. Isdale, cit., 1864, 2 Macph. 978, 1866, 4 Macph. (H.L.) 1; Jack v. Thom, cit.; Petrie v. Meek, cit.; Lindsay v. M'Tear, cit., per Lord Brougham at 158;

M' William v. Adams, cit., per Lord Brougham at 128, 132, and 133, and Lord Truro at 142; Pollock v. Darling, 17 January, 1804 F.C., M. 10, 591; Act 1672, cap 18; Green's Encyclopædia (2nd ed.), vol. ix, p. 334. The facts in the present case showed that Darrie was fit to support not only himself but also his family, although in order to establish his “able-bodiednes” it was not necessary to show that he could support his family. Accordingly Darrie was “able-bodied” within the meaning of section 68 of the Act and therefore was not eligible for relief under the Act.

At advising—