Scottish Court of Session Decisions

( Poor) Duncan Macpherson, porter, Oban, applied in the Sheriff Court at Oban for an order under section 73 of the Poor Law Act 1845 (8 and 9 Vict. cap. 83) against the Inspector of Poor of the Parish of Kilmore and Kilbride for relief for his infant child.

Answers were lodged by the Parish Council, who pleaded, inter alia—“1. The applicant being an able-bodied man able to support himself and his children is not entitled to relief. 3. The interim relief allowed ought to be discontinued.”

The facts are given in the note ( infra) of the Sheriff-Substitute ( Wallace), who on 29th October 1919 pronounced this interlocutor—“Finds in fact that the applicant Duncan Macpherson supports himself and his three elder children: Finds in law that in the sense of the Poor Law he is an able-bodied man, and that being able-bodied he is not entitled to relief in respect of his infantchild, presently an inmate in the poorhouse of the parish of Kilmore and Kilbride: Therefore sustains the first and third pleas-in-law stated for the Parish Council of Kilmore and Kilbride: Dismisses the application, and decerns,” &c.

Note.—“This is in one sense a peculiarly hard case, and one on which one's sympathy is enlisted on behalf of the applicant. The circumstances are briefly these Duncan Macpherson, the applicant, is a labourer, fifty-one years of age, and a man of respectable antecedents. He was born in Glasgow, and came to Oban about fifteen months ago. He was married about eleven years ago and has four children, aged respectively nine, eight, five, and one year. His wife died very shortly after the birth of the youngest child, and as there was no woman in the house it became necessary for the Parish Council to board the infant and to look after it. Now that the child has attained the age of a year the Parish Council object to maintain it any longer, and requested the applicant to remove it to his own home. This he says he would be perfectly willing to do if it were in his power, looking to the interests of the child itself. But as he is at work during the day, and as his means are not sufficient to provide proper sustenance for a child of such tender years, he has presented this application to have it declared that the Parish Council should be held bound to maintain the child for some time longer. The case is further complicated by the applicant's contention that his health is such as to make him a proper subject of parochial relief so far as the maintenance of this infant child is concerned. In other words, he contends that although his bodily condition is not such as to render him himself a proper subject of parochial relief, the child's age and his disability to maintain and look after it are such as to make it necessary in the child's interests that the Parish Council should relieve him of a burden which through no fault of his own his shoulders are not broad enough to bear. The child itself, it will be noticed, is not suggested as being a proper subject of parochial relief, since it could not be so unless deserted by its father and left to the tender mercies of the world or the charitably disposed. The father himself is the applicant for parish relief, but the relief desired is not in his own but in the child's interest. The answer which the Parish Council make is that in the sense of the Poor Law the applicant is an able-bodied man, and that if that be so they have neither the duty nor even the right to use public funds in the maintenance of a child which is not itself entitled to relief (in respect of being deserted by its father) and which ought to be supported by him. There is no definition in the Poor Law Act either of the word ‘pauper’ or of the word ‘poor,’ but a long series of decisions have determined that a man who is ‘able-bodied’ is not entitled to relief; and ‘A man may be able-bodied’ (in the words of Lord Justice-Clerk Inglis in Jack, 1860, 23 D. 173) ‘though not so strong as some other men, the expression being a comparative term. What the statute means by an able-bodied man is a man not labouring under any disability (bodily or mental) to work so as to earn his subsistence.’ And the case of Thomson ( 1849, 2 D. 719, affd. (H.L.) 1 Macq. 155) decided that an able-bodied man being bound to support his children is not entitled to relief for his pupil children even although being out of employment he is unable to support them. The law presumes, as Lord Deas put it in Hay ( 1887, 19 D. 339), that every able-bodied father is capable of maintaining his family, however different the fact may be. Now upon the proof it is, I think, clear that the applicant here is in the sense of the Poor Law able-bodied. He has hitherto maintained himself and his three elder children, if not without difficulty, at anyrate without invoking parochial aid. No doubt he is not, in Lord Inglis' words, as strong as some other men, nor even so strong as the average man. He appears to suffer from some gastric trouble and some functional irregularity of his heart, which at

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intervals cause him to suspend his activities for some days or even weeks at a time, and no doubt his wages are small. But while, as I have said, his case is one which calls for sympathy, I must perforce judge it according to the law, and in that view I have no difficulty whatever in holding that the applicant is able-bodied (in the Poor Law sense), and as such not entitled to relief from the parochial authorities.

The case of Knox v. Hewat ( 8 Macph. 397) has, I admit, occasioned me some difficulty. In that case a man was burdened with a daughter seventeen years of age who was disabled from earning her livelihood by permanent disease, and her father while able to earn wages in good weather was entirely unable to obtain for his daughter the support which she required. He was held entitled to relief as not being able-bodied, and although he could not have claimed relief for himself, yet as the daughter could not be said to be the child of an able-bodied man in the legal sense of these words, he was held entitled to relief in respect of his daughter. But the observations of the learned Judges in Parish Council of Old Machar ( 1912 S.C. 26), and especially those of Lord Salvesen in commenting upon and distinguishing Knox's case, have removed the doubts I entertained. Lord Salvesen in an illuminating sentence says that ‘It would be dangerous to hold that in determining whether a man is able-bodied within the meaning of the Poor Law regard should be had to anything but the physical (in which he includes mental) condition of the man himself, and it seems illogical to hold that a person supporting himself by work and paying rates, and so not entitled to parochial relief in his own right, must be treated as a pauper because of the extent of his family burdens.”

The applicant appealed, and argued—It was proved that the applicant suffered from physical disability, and that he was unfit for continuous work. That being so, he was notable-bodied in the sense of the Poor Law. The following authorities were referred to:— M'William v. Adams, 1852, 1 Macq. 120; Petrie v. Meek, 1859, 21 D.614; Jack v. Thom, 1860, 23 D. 173; Knox v. Hewat, January 12, 1870, 8 Macph. 397, 7 S.L.R. 230; Beattie v. M'Culloch, June 12, 1880, 7 R. 907, 17 S.L.R. 645; Milne v. Ross, December 11, 1883, 11 R. 273, 21 S.L.R. 207.

Argued for the respondents—The applicant being able to work so as to earn his subsistence was able-bodied in the sense of the Poor Law, and was not entitled to relief either for himself or his children— Old Machar Parish Council v. Aberdeen Parish Council, 1912 S.C. 26, 49 S.L.R. 20.

At advising—