10 Liability To Maintain In Repealed Statutes
10.1 Why the use of the term "liability to maintain" in repealed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:
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
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)
"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
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
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  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
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.)