10 Liability To Maintain In Repealed Statutes

10.1 Why the use of the term "liability to maintain" in repealed statutes is so important.

If the United Kingdom, or England and Wales, had a written Constitution, or an entrenched Bill of Rights, interpretation of words such as "liable to maintain" and their effect upon future legislation would be simple to determine. Argument already presented in this paper in regard to particular provisions in certain statutes which are still in force would not have been necessary. Even without them it might well be regarded as sufficient that in section 78(6) of the Social Security Administration Act 1992 we have an ongoing statutory provision which dates back to section 42(1) of the National Assistance Act 1948 and ultimately to section 7 of the Poor Relief Act 1598 and establishes a continuum of Parliamentary intention in relation to the duty of individuals to maintain other individuals as a responsibility to the public, which is not only definitive but which is also delimiting in that it is taken to exclude individuals which it does not expressly include, and can be taken, for all practical purposes, to have the force of a provision contained in a written Constitution so far as the matters to which it expressly refers are concerned. But examples taken mainly from "Archbold's Poor Law Statutes" (16th Edition, 1930), will give an overview as to the interpretation of various phrases meaning "liability to maintain" since the early Nineteenth Century, in particular in Acts of Parliament in force at the time of publication of that work. These examples cannot and do not themselves lay down "liability to maintain" but make reference to it.

10.2 Section 3 of the Vagrancy Act 1824:

"Every person being able wholly or in part to maintain himself or herself, or his or her family, by work or by other means, and wilfully refusing or neglecting to do so, by which refusal or neglect, he or she, or any of his or her family whom he or she may be legally bound to maintain, shall have become chargeable to any parish, township or place, [etc., etc.,]".

Note: see R. v. Flintan 1 B. & Ad. 227. Wife had committed adultery. Husband held not liable to maintain her. (Referred to in National Assistance Board v. Wilkinson.)

10.3 Section 2 of the Pensions Act 1839:

"When relief shall be given to any person entitled to or in receipt of any army or naval pension, or any superannuation or other allowance in respect of his service in the army [etc., etc., . . . or to his wife, or to any person whom he may be liable to maintain, [etc., etc.,]".

10.4 Section 5 of the Bastardy Laws Amendment Act 1873:

"5. Guardians may recover cost of relief of bastard child . . . - when a bastard child becomes chargeable to a union or parish, the guardians may apply to two justices having jurisdiction in the union or parish, in petty sessions, and thereupon such justices may summon the man alleged to be the father of the child to appear before any two justices having the like jurisdiction, to show cause why an order should not be made upon him to contribute towards the relief of the child . . . Provided as follows:

[1&2]

3. That nothing in this section shall be deemed to relieve the mother of a bastard child from her liability to maintain such child;

[4 & 5]

10.5 Section 296 of the Lunacy Act 1890:

"296. The liability of relations of pauper not to be affected. - The liability of any relation or person to maintain any lunatic shall not be taken away or affected, where such lunatic is sent to or confined in any institution for lunatics, by any provision herein contained concerning the maintenance of such lunatic."

Note (from Archbold's Poor Law Statutes)

"The liability of persons to maintain their relations when in receipt of relief is contained in s.14 et seq of the Poor law Act 1930. s.19 of that Act also contains a specific provision with regard to a husband whose wife is a lunatic."

10.6 Section 5 of the Custody of Children Act 1891:

"5. Definitions of "parent" and "person" - For the purposes of this Act the expression "parent" of a child includes any person at law liable to maintain such child or entitled to his custody, and "person" includes any school or institution."

Note (from Archbold's Poor law Statutes)

"For the persons liable to maintain a child, see the Poor law Act 1930, s.14 et seq."

10.7 Section 12 of the Children Act 1908:

"12. Punishment for cruelty to children and young persons. - parent or other person legally liable to maintain a child or young person . . . deemed to have neglected him [etc.]" - see discussion in paragraph 5.7 above as to section 1(2) of the Children and Young Persons Act 1933.

10.8 Section 38(2) of the Children Act 1908:

"(2) For the purposes of this Part of this Act -

Any person who is the parent or legal guardian of a child or young person or who is legally liable to maintain a child or young person shall be presumed to have the custody of the child or young person, and as between father and mother the father shall not be deemed to have ceased to have the custody of the child or young person by reason only that he has deserted, or otherwise does not reside with, the mother and child or young person; and….."

10.9 Section 82 of the Children Act 1908:

"82. Contributions by parents. - (1) Where a court orders a child to be sent to a certified day industrial school, the court shall also order the parent of the child, or other person liable to maintain him, to contribute to his industrial training and meals in the school such sum as is named in the order, not exceeding such sum as may be declared by Order in Council to represent approximately the average cost of industrial training and meals in day industrial schools . . ."

10.10 Section 15 of the Mental Deficiency Act 1913:

"(3) Where the place to which such a person is taken is a workhouse, the master shall receive him into the workhouse if there is suitable accommodation therein, and any expenses incurred in respect of him, shall be defrayed by the local authority, but shall, if an order is eventually made, be recoverable from the defective or any person liable to maintain him as if they were part of the expenses of his maintenance."

Note (from Archbold's Poor Law Statutes)

"For liability for maintenance, see the Poor Law Act 1930, s.14."

10.11 Section 10 of the Maintenance Orders (Facilities for Enforcement) Act, 1920:

"10. Interpretation. - For the purposes of this Act, the expression "maintenance order" means an order other than an order of affiliation for the periodical payment of sums of money towards the maintenance of the wife or other dependants of the person against whom the order is made, and the expression "dependants" means such persons as that person is, according to the law in force in the part of His Majesty's dominions in which the maintenance order was made, liable to maintain;"

(See discussion in paragraph 5.5 above.)

10.12 Section 14 of the Police Pensions Act 1921:

"14. Assignment of pensions and regulations as to payment of pensions , &c-

(2) where any parochial relief is given to a pensioner or to anyone whom the pensioner is liable to maintain, the police authority may pay the whole or any part of the grant . . . to the guardians or other authority giving the relief.

(3) If the pensioner neglects to maintain any person whom the pensioner is liable to maintain, the police authority may in their discretion pay or apply the whole or any part of the grant to or for the benefit of that person:"

10.13 Section 16 of the Local Government Act 1929:

"16. Recovery of Expenses. - (1) As from the appointed day, it shall be the duty of the council of every county and county borough and of every other local authority to recover from any person who has been maintained by them in any institution, other than a person who has become an inmate of an institution for the purpose of receiving treatment for infectious disease, or from any person legally liable to maintain that person, the whole of the expenses incurred by the council or authority in the maintenance of that person, or, if the council or authority are satisfied that the persons from whom the expenses are recoverable cannot reasonably, having regard to their financial circumstances, be required to pay the whole of those expenses, such part, if any, of the expenses as they are in the opinion of the council or authority able to pay:

Provided that any such council or authority may, by agreement with the governing body of any association or fund established for the purpose of providing benefits to members or other beneficiaries thereof, accept from the association or fund, in respect of the expenses incurred by the council in the maintenance of any member or beneficiary of the association or fund, payment of such sums as may be provided by the agreement, in lieu of recovering the whole or any part of the said expenses from the member or beneficiary, or from any person legally liable to maintain him."

Note (from Archbold's Poor law Statutes)

"The reason and object of this section can best be set out in the words of the memorandum issued by the Government on the Local Government Bill (Cmd. 3273, p.8). The Bill became this Act after its passage through Parliament.

Under the Poor law there is an obligation on the Board of Guardians where possible to recover the whole or part of the cost of relief from the recipient or from the persons liable to maintain him ..."

10.13.1 Middlesex County Council v. Nathan

Case on section 16 of the Local Government Act 1929:

In Middlesex County Council v. Nathan [1937] 3 All ER 283, Middlesex County Council sought to recover from one of Soloman Nathan's sons part of the cost which they had incurred in maintaining Soloman Nathan in hospital - they having already received a contribution from another son. The claim failed because the authority had not pleaded that the son was possessed of sufficient means and was therefore liable to maintain the patient (section 14 of the Poor Law Act 1930 making liability to maintain conditional on the liable relative's being "possessed of sufficient means").

10.14 Section 4 of the Summary Jurisdiction (Married Women) Act 1895:

This section provided (inter alia):-

"Any married woman . . . whose husband shall have been guilty of. . . . wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain . . . may apply to a court of summary jurisdiction [etc.]".

(The wife's "infant children whom he [was] legally liable to maintain" included children of both, and section 57 of the Poor Law Amendment Act 1834 had added such of her children, under sixteen years of age, as were not his children. The 1895 Act, as amended by the Summary Jurisdiction (Separation and Maintenance) Act 1925) continued in force beyond the repeal of the Poor Law Acts by the National Assistance Act 1948. This removed the liability to maintain stepchildren by that time contained in section 14(3) of the Poor Law Act 1930, and therefore section 4 did not apply to stepchildren thereafter. The Summary Jurisdiction Acts 1895-1925 were repealed by the Matrimonial Proceedings (Magistrates' Courts) Act 1960, which introduced the "child of the family" provisions which empowered courts to make financial orders for stepchildren notwithstanding that there was no liability to maintain them under the general law.)