Legal Notes
PMC5109162
High Court Decision in Cases of Berkshire County Council v. Reading County Borough Council and London County Council.
In our January number we gave a report of legal proceedings in determining the place of residence under the Mental Deficiency Act of the cases of two mentally defective girls in the Cumnor Rise Home for the Feeble-minded, Cumnor, Berks… when the Petty Sessional Court at Abingdon decided that in both cases the liability for maintenance rested with the Berkshire Local Authority.
The facts may be recapitulated briefly as follows:
One patient had been in the Home since 1907, her poor law settlement at the time of admission being in Reading; the other had also been in the Home for some years, her poor law settlement having previously been in a London Union. In 1920 petitions were presented by an officer of the Board of Control for orders for the detention of both these cases under the Mental Deficiency Act, when the judicial authority who heard the petitions took the view that the patients “resided” respectively in the areas of the County Borough of Reading and the County of London, and made orders imposing responsibility for maintenance upon these two authorities who thereupon caused application to be made under section 44 (3) of the Mental Deficiency Act for orders transferring the liability in each case to the Berkshire County Council. At the Petty Sessional Court held at Abingdon on 5th November, 1920, the Justices by a majority decided that such orders should be made, as both defectives resided in Berkshire.
The Berkshire County Council appealed from this decision and the Justices stated a case for the High Court.
The appeal was heard on 14th April, 1921 (K.B. Div., Darling, Avory and Salter, J.J.) with the result that the decision of the Justices was upheld on the ground that “residence” for the purpose of sections 43 and 44 of the Mental Deficiency Act means physical residence, and that the “case of doubt” referred to in Section 44 (4), as giving occasion for reference to poor law settlement to determine responsibility for maintenance, must be a case of doubt as to physical residence and not as to residence in any technical sense.
Arguments of counsel were directed to the points that the residence of these mentally defective girls in the Cumnor Rise Home was not ‘ ‘residence” within the meaning of the Act because (i) they were not capable of volition and ( ii) in any case they had been detained in the Home irrespective of any choice they might be capable of making. Both these points were brushed aside in the judgment, so that (as was pointed out by Mr. Justice Salter) it follows either that volition is not necessary to “residing” under the Mental Deficiency Act, or that persons mentally defective may be capable of such volition as is essential to such “residing.”
Jurisdiction of Petty Sessional Court, on Appeal from a Decision as to Residence of a Judicial Authority.
A judicial authority at Worthing on 24th August, 1920, made an order on petition sending a mentally defective girl to a certified institution and imposing responsibility for her maintenance on the local authority for London. The local authority for London was not satisfied with the finding of the judicial authority as to the place of residence of the defective and therefore caused application to be made to the petty sessional court at Worthing for two summonses, under sectino 44 (3) of the Act, one against the County Council for West Sussex and the other against the local authority for Sheffield. These were returnable on 10th Novem- ber, 1920, when Counsel appearing for the West Sussex County Council took a preliminary objection that the Court had no jurisdiction to hear the summons, arguing that section 44 (3) was applicable only to proceedings under the other sub-sections of section 44, viz., in the case of an order made in respect of a person found guilty of an offence or of an order made by the Secretary of State. He contended that the Act made no provision for appeal from a decision as to residence by a judicial authority. The bench accepted this view and declined to hear the summonses.
In view of the very important question of principle involved, application was made on behalf of the local authority for London to the Divisional Court for a rule nisi directed to the justices of the petty sessional court to show cause why they should not hear and determine the summons. The application was heard on 28th April, 1921, (Darling, Avory and Greer, J.J.). The rule was made absolute, on the ground that sub-section (3) of section 44 deals with the whole question of determination of residence and is not limited to the particular instances dealt with in the earlier part of the section: the summonses therefore are referred back to the justices for hearing. Mr. Justice Greer pointed out that it would not be just to leave to a judicial authority, without possibility of appeal, the determina- tion of responsibility for maintenance of a defective.
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