1998/68 - Porée v Parish of St Helier [1998] UR 68 (1 April 1998)

THE BAILIFF: This representation comes before the Court at the instance of Advocate W J Bailhache, the curator of Elsie Maude Porée, née Le Turgeon, who is a resident at Maison de Ville, a residential home for the elderly owned and administered by the Parish of St. Helier. Prior to moving to Maison de Ville, Mrs Porée had lived as an in-patient at St. Saviours Hospital. On 6 September 1995, Mrs S J Medder of St. Helier Community Services Department wrote to the curator informing him that "a capital charge will be introduced for the residents living at Maison de Ville … of £20 weekly. This will be in addition to the charge of £183.67 which covers running costs only". The curator challenged the introduction of this capital charge which he contended was in the nature of a tax. The parish did not accept this objection. The curator, whose interdict is of limited means, accordingly made a representation to the court seeking directions as to whether it was appropriate to commit any of those means to litigation with the Parish of St. Helier to challenge the vires of the proposed capital charge. The Court viewed the question as raising a matter of public interest and requested the Attorney General to intervene.The question has been argued by the Solicitor General on the Attorneys behalf and by counsel for the Parish and I am indebted to both for the researches which have been carried out and for their submissions.

(1)Is the Parish under an obligation to provide accommodation for the elderly poor?

(2)Is the Parish entitled to impose a charge in addition to a fee representing the operational costs?

(3)Is the proposed capital charge a levy or tax which is unlawful?

The Parish asserts that it is under no such obligation and that in operating residential homes it is providing a service for which it may make such charges as it thinks fit.

In order to determine the nature of a parishes obligations towards the elderly poor it is necessary to delve into history.

On 17 January 1591, the States gave consideration to the problem caused by the poor going from place to place in the Island begging, which appears to have constituted a social nuisance, and decreed:

The States minute contains provisions requiring the able-bodied to work if work could be found, and continues:

There is a reference to that minute on 10 November 1596, where an Act of the States records:

On 5 July 1597, an Act of the States records that the previous decrees that the poor should be maintained in their parishes had not been followed, and requests the Governor to reform the system. On 3 October 1597, the Governor reported that with the assistance of the Court he had carried out the task.

"Ayant pareillement fait cotisation sur les particuliers de certaines sommes de deniers plus ou moyens selon leur portée, applicable et distribuable aux Anciens debiles et impotents pauvres en leurs maisons selon qu’il s’est trouvé expédient et necessaire par l’avis de ladite assistance: Ayant quant et quant dressé certaines ordres particulières, … les particuliers de payer leur cotisation ordonnée, et pour les refusants commandé aux vingteniers d’exécuter de leur biens à la valleur de ce qui serait resté."

It seems clear therefore that even by the end of the sixteenth century the parishes had accepted an obligation to support such of the poor as were unable to work, including the elderly, and to impose levies on parishioners who could afford to contribute in order to raise the necessary funds. It appears from the records that the support afforded to the poor was given to them in their homes.

The next stage in the history is the establishment of the Hôpital Général by the States. As appears from Le Quesnes Constitutional History of Jersey, in 1741, a substantial bequest was made by Mrs Marie Bartlett to be used for the construction and maintenance of a house or hospital for the benefit of poor widows, fatherless children and the old people of the Island. The hospital was eventually built in St. Helier. Its operating costs were met in part from Mrs Bartletts bequest and other charitable donations, and in part from contributions paid by each parish in proportions fixed by the States. The hospital housed the poor who were at the general charge of the Island (initially the non-native dependants of soldiers and sailors). The parishes were also entitled to place poor persons in the hospital, each parish being allocated a number of places in proportion to its contributions to the general rate of the Island. A report of the Comité de l’Hôpital Général received by the States on 14 March 1772 records that:-

There then follow details of the number of poor persons which each parish could place in the hospital.

The cost of providing accommodation at the hospital for poor persons who were chargeable to the parishes was met by the parishes concerned. The cost of providing accommodation at the hospital for poor persons who were chargeable to the Island was met by the States.

Coming forward to the nineteenth century Le Quesne, writing in 1856 in his Constitutional History of Jersey, states at page 525:

"Of the amount raised for the maintenance of the poor, a portion is applied for the support of paupers in the general hospital, or poor-house, at the charge of the Island; the proportions of the expense to be borne by each parish being regulated by law. The allowance to be granted to the parochial poor is determined by the churchwardens and the parish assemblies."

In 1861 the Commissioners appointed to inquire into the Civil law wrote at page lxv of their report:

In 1908 the States adopted the Loi (1908) sur l’Administration de l’Assistance Paroissiale à St. Helier. "Assistance Paroissiale" was defined as :

"Tout secours ou assistance aux pauvres ou autres personnes indigentes ou nécessiteuses qui est maintenant administré ou accordé par le Connétable, les Surveillants ou l’Assemblée Pariossiale (Ecclésiastique ou Civile) mais sans y comprendre les Dons faits par:-

1Dlle Jeanne Gruchy,

2Dlle Eliza Chevalier,

3Dlle Julia Westaway,

4Dlle Esther Perchard (Mrs. Hogg), et

5Monsieur Thomas Gautier, fils Thomas."

Until 1953, the poor chargeable to a parish were such persons born in the parish or their dependants. This was changed by the Poor Law (Amendment) (Jersey) Law, 1953, Article 1 of which provided:-

As I have already concluded above, the funds required to meet the obligations of a parish, however extensive that obligation was, were obtained either by voluntary contributions or by levy from parishioners who had the means to do so. Recourse was also had to a permanent fund known as la Charité into which donations and legacies to the parish were placed. The Code of Laws of 1771 provided that la Charité should be administered by the churchwardens, and the revenue applied in grants to the poor. In the event of insufficiency the difference was to be raised by rates on the inhabitants. In 1891 and thereafter by successive regulations, provision was made by the Loi (1891) sur la Taxation du Rât et la Liste Electorale for the funding of a parish’s obligations to the poor. Article 1 of the 1891 Law provided :

The relevant statutory provision is now to be found in Article 2 (2) of the Parish Rate (Administration) (Jersey) Law, 1946 which provides that:

Mr Thompson, who appeared for the Parish, submitted that none of this history showed that a parish now had an obligation to provide accommodation for the elderly poor. He contended that the obligation was limited to the provision of financial assistance. This contention seems to me however to beg the question of the underlying purpose of the financial assistance. What is parish relief intended to achieve? In my judgment it is intended to provide those in need with a minimum standard of food, clothing and shelter. Naturally over the centuries the minimum standard has changed. The minimum standard now is that appropriate to the social and economic conditions of the Island as the twentieth century draws to a close. In the sixteenth century it was regarded as unacceptable that poor persons should be driven to beg in order to obtain the means of survival. In these times it would generally be regarded as unacceptable that elderly people with no means of support should be left exposed without food clothing or shelter. I draw support for this conclusion from the decision of the Court in Cooper v Public Health Committee & others (1966) JJ 685 at page 691 where Bois DB stated:-

"It is equally the law of the Island that, where a person is in need of assistance, it is the duty of his near relatives to support him. We also conceive it to be the law that where the relatives fail to carry out their duty or where there are no near relatives, it is the duty of the Constable to intervene. It is perhaps in this sense that the saying "The Constable is the father of his parish" has real meaning."

The duty to protect the poor and the defenceless which rests on the Constable of a parish is not however without limit. Firstly, it goes without saying that every individual has a duty, so far as he can, to help himself. Secondly, it is the duty of near relatives to support and assist a person in need of such support and assistance. Thirdly, statute has intervened in some respects to transfer the duty from the parish to the States. Examples are to be found in the Children (Jersey) Law, 1969, which places the Education Committee under a duty to receive into care children in need of care and protection; in the Act of the States of 7 November 1960 which imposes an obligation on the Public Health Committee (as it then was) to provide treatment in the public wards of the General Hospital free of charge; and in the Mental Health (Jersey) Law, 1969 which makes provision for the compulsory admission to hospital and to guardianship of certain patients suffering from mental disorder. Fourthly, even where no statutory obligation exists, the States have in at least one area assumed responsibility as a matter of practice which might otherwise have rested with the Constable. The Housing (Extension of Powers) (Jersey) Law, 1969, imposes a general duty on the Housing Committee to ensure that sufficient land is available for the inhabitants of the Island and States rental accommodation is generally made available in appropriate cases of urgent need.

Subject to those reservations however it is the duty of a parish, in my judgment, to provide for the relief and maintenance of the poor and the defenceless by furnishing the means for food, clothing and accommodation. I accept the submission of Mr Thompson that the Parish is not under a positive duty to operate residential homes for the elderly poor.

It is true that the Parish did contribute towards the funding of the Hôpital Général or poor-house when it was established by the States during the course of the eighteenth century. I cannot however accept that the duty of the Constable at customary law to protect the elderly poor has evolved to the extent that there is now a duty to maintain residential homes in which the elderly poor can live. Apart from the parishes of St. Helier and St. Brelade no parish currently operates a residential home; if I were to find that such a duty had evolved, considerable difficulty would be caused, particularly to the smaller parishes. There is however a duty to provide the means by which accommodation can be obtained. Whether the parish meets that obligation by constructing and operating residential homes for the elderly or by granting financial assistance sufficient to enable the elderly poor to obtain accommodation is a matter for the parish. I therefore conclude, in relation to the first question, that the parish is not under an obligation to provide accommodation for the elderly poor.

I turn now to the second and third questions which I find convenient to take together. In essence, if I may reformulate the questions, the point is whether or not the capital charge is unlawful, either because the Parish is not entitled to charge more than the operational costs or because it is a tax which the Parish is not entitled to impose without statutory authority.

The Solicitor General contended that, on the basis that the parish had a duty to provide homes for the elderly poor, the cost of providing and maintaining the structure of any such home should be deployed from the rates. As I have found that no such duty exists, it follows that there is no reason in principle why the parish should not set its charges at whatever level it thinks fit. Whether residents are prepared to accept such charges is a matter for agreement between the parties. Where a resident for whom the Parish is responsible has no means, or insufficient means, the question is perhaps academic, for the Parish will have an obligation itself to meet any charges which it may set. I therefore answer the second question by stating that the parish is entitled to impose, subject naturally to agreement with the resident, a charge in addition to the fee representing the operational costs.

I turn finally to consider whether the capital charge imposed by the Parish is a tax which is unlawful. Both counsel referred me to the case of Jersey Demolition Contractors Ltd. v Resources Recovery Board, (1982) JJ 107. The issue in that case was whether a charge introduced for tipping waste products at a reclamation site was ultra vires the Board. In giving the judgment of the Court, Crill, DB, as he then was, stated at page 108:

"The issue narrowed itself down to an interpretation of the charges. Could they be regarded as a form of tax or were they merely an administrative fee in a commercial setting charged for the services provided by the Board to persons who wished to avail themselves of them. We have no doubt that if we had found that the charges really partook of the nature of a tax then the imposition of them would have been ultra vires, because the Committee could not without the express authority given to it by a proper and duly authorised decision of the States make what would have been a form of indirect tax. However, we have come to the conclusion that the fee or charge imposed by the defendant is not a direct form or indirect form of taxation. We have had regard to an Australian case in coming to this conclusion, and I refer to Words and Phrases Legally Defined, Volume 5 at page 168, where that case is mentioned under the name of Leake v. Commissioner of Taxation (State) (1934) 36, WALR 66, per Dwyer J., at page 67. The extract is as follows:-

"A compulsory contribution, or an impost, may be nonetheless a tax, though not so called; the distinguishing feature of a tax being in fact that it is a compulsory contribution, imposed by the sovereign authority on, and required from, the general body of citizens as distinguished from isolated levies on individuals".

We have come to the conclusion that the charges imposed by the defendant were of the nature of isolated levies as and when individuals or companies sought to avail themselves of the services of tipping at La Collette."

The Solicitor General argued that the capital charge was in the nature of a tax because (i) it was a compulsory contribution imposed on Mrs Porée, (ii) it was imposed by a public authority and (iii) it was imposed for a public purpose, i.e. the provision of accommodation for the elderly poor of the parish. She distinguished the capital charge in this case from the levy in the Resources Recovery Board case by submitting that the latter was a charge for a service.

In my judgment there are two answers to these submissions. The first is that the capital charge cannot be said to be a compulsory contribution imposed on Mrs Porées curator. It is open to the curator, subject obviously to the means of Mrs Porée, to find alternative accommodation for her which is commensurate with those means. If her means are insufficient, then the Parish (assuming that the Parish of St. Helier has a responsibility for her) will have itself to pay the capital charge. The second is that the underlying purpose of the charge is to create a fund which will be available to meet the costs of major repairs and renovations at Maison de Ville. This seems a perfectly proper and sensible purpose which is directly referable to the operation of the home. It is part of the service which the Parish is offering to elderly people. It is true that the service is being offered both to persons of independent means and to persons for whom either the Parish of St. Helier or other parishes have accepted financial responsibility. But this does not affect the conclusion that a service is being offered.

I therefore answer the third question by finding that the capital charge is not a levy or tax which is unlawful.

The Report of the Commissioners into the Civil Laws of Jersey (London, 1861): p.lxv

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