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Legal assistance provided by non-legal services

This section explores in more detail the support provided by non-legal workers and agencies to homeless people with legal problems. Support may be in the form of:

• legal information and advice (defined in Chapter 6)
• assessment and referral
• advocacy
• support through the legal process (including court support)
• case management.

Included in the discussion are the challenges faced by non-legal services in providing these types of support to homeless clients. The subsequent section discusses options to address these difficulties.

Legal information and advice

As indicated in the SAAP data referred to above, homeless clients often ask caseworkers for ‘information and advice’ about ‘legal’ issues. As well as asking ‘What shall I do?’, homeless clients ask how particular legal processes work, what sort of things they should expect to happen, what documents they need and how to dress if they have to appear in court.⁷⁰ A worker’s capacity to answer these questions will depend significantly on their role and area of expertise (e.g. housing workers, financial counsellors, youth workers, general welfare workers).⁷¹ The following section details the challenges reported by non-legal support workers when their homeless clients appeal to them for advice and information about legal issues.

Challenges in providing and ‘interpreting’ legal information

In consultations for this study, outreach and other workers providing front line support to homeless people reported feeling quite stressed about providing legal information or ‘advice’ to clients. Some workers felt they were ‘running blind’ giving advice to people about what to do. They prefered being able to assist their clients directly into legal support.⁷² Some described the situation as ‘the blind leading the blind’.⁷³ A few caseworkers reported difficulties in even finding legal information to assist their clients. One stated:

I’ve spent hours on it going to all the legal [internet] sites. I can't find anything. Or what they do is they send you to, give you a whole list of lawyers to look up and access these particulars lawyers in this field. And I think, oh gee we can’t afford that.⁷⁴

Similarly, a report on domestic violence and homelessness noted:

In general, participants [workers surveyed] did not speak confidently or appear well informed about the legal rights of women in domestic and family violence situations.⁷⁵

One factor which appears to fuel workers’ concerns about providing legal information to clients is an inability to delineate between what is ‘legal information’, ‘legal advice’ and ‘referral’: distinctions that are often unclear. Scott and Sage report:

The generalist community workers who have received no training in the law were reluctant to provide any form of assistance with the legal aspect of the client’s problem. This included a reluctance to provide any form of written legal information to clients or to carry out legal research on their behalf. These participants were fearful of providing wrong or out-of-date information to clients. They saw their primary role in these situations as providing referral to agencies with more specialist legal knowledge.⁷⁶

Anxiety and a lack of information about the actual responsibilities of non-legal support workers under legislation and agency guidelines (e.g, by privacy legislation, agency procedures and guidelines, insurance issues) were also reported to affect the willingness of some workers to provide ‘legal’ information.⁷⁷ Thus, consultations suggest that the capacity of workers to provide accurate plain language legal information depends on:

• their content knowledge, training and previous experience
• the accuracy and accessibility of the legal resources available to them (including personal contacts)
• the time they have available to consult and comprehend these legal resources
• the complexity of the client’s situation and of the legal processes or concepts they are describing to the client
• their understanding of their own legal obligations (e.g. privacy laws, insurance).

The value of ‘legal information’ to the client depends upon their capacity to understand the information provided and to act on that information. For the many reasons discussed in Chapter 5, homeless people may not be able apply non-specific legal information effectively to their own situations. For instance, in this study, a tenancy worker reported that the tenancy laws are often too complicated to explain to tenants over the telephone, particularly when the caller is preoccupied with other issues, such as finding somewhere else to live.⁷⁸ In these circumstances, clients require a higher level of support to actively address the legal issue they are facing. This is consistent with previous research that shows generic legal information is of limited value of its own to disadvantaged people, but may be useful when provided in conjunction with other forms of assistance.⁷⁹

Assessment and referral

A key role of homeless person’s services is to assess clients’ legal and other needs, provide the assistance required or refer them to specialist support. Referral is “the provision of information about another agency, including contacting or negotiating with another agency on the client’s behalf”.⁸⁰ A ‘supported referral’ involves the referring caseworker or agency preparing information about the client’s circumstances for the agency the client is being referred to.

The importance of generalist welfare and support services as a source of referral to legal services is reflected in the referral statistics provided by the homeless person’s legal services consulted for this study. Between 75% and 90% of their clients had been referred by the host service or other community organisations.⁸¹

One worker interviewed for the current study stated: “our role is primarily talking to the client, finding out what the problem is, and making the appropriate referral”.⁸² Another commented:

Agencies that do proper case management should be identifying legal issues as part of this process.⁸³

Caseworkers we consulted reported often having to actively support clients to follow through a referral. Support included making appointments for clients, actually accompanying people to appointments with their solicitors and assisting clients to obtain documents and complete forms. One homeless participant described this support as follows:

… as far as accessing agencies go, [caseworker] does all the accessing for me. That makes life a lot easier for me because I only have to rock up to the meeting with the agency and introduce myself. It’s good … the caseworkers have been a tremendous help and a very good benefit to me in such a situation which I am placed in. Twenty-four years of drug and alcohol abuse doesn’t help me much!⁸⁴

Challenges in providing assessment and referral for legal issues

Successful referral depends upon caseworkers having the capacity to identify legal need and knowing where and how to appropriately refer the client. Consultations suggest that the level of referral to CLCs and Legal Aid by caseworkers and community organisations varies considerably, with some workers and organisations having limited knowledge about who they could refer clients to.⁸⁵

According to Scott and Sage’s study,⁸⁶ knowledge about who to call for legal information or who to refer a client to seems to depend upon the role, experience and networks of the agency or worker.⁸⁷ For instance, two caseworkers interviewed for the current study remarked:

I know people at Legal Aid and at Redfern and Kingsford CLCs, that I can ring. As they know me they can help me out even if they are stretched.⁸⁸

I’ve had to make several phones calls. I’ve been lucky that I’ve remembered the name and got onto that same person again. You do get a connection there but it is really like pulling something out of a hat. It’s the luck of the draw. But I have found if you do get that kind of connection life can be so much easier and it’s amazing how these people tend to go that little bit further as well. They do seem to push things that little bit harder for the client which is really, really good. But it’s just making that connection.⁸⁹

However, when referrals are based on personal knowledge and relationships, clients may not get referred to relevant services that are outside the agency or caseworker’s usual networks. For example:

Workers in the homeless sector may not be aware of the full range of services which fall outside their primary area e.g. may not be aware of the IDRS. The IDRS tends to get referrals from third parties working in the intellectual disability field (e.g. from supported accommodation services). Accessibility hinges on being able to identify someone who has an intellectual disability and referring them through to the IDRS.⁹⁰

Another issue faced by non-legal services when referring clients is delay in the availability of legal support. This is particularly stressful when the client’s legal issue is urgent.

Our service to the clients often involves legal issues and … we need proper legal advice, extra legal advice on tap. I mean we can’t wait six months, eight months. Sometimes decisions need to be made and we need advice there and then …⁹¹

If homeless people are referred to legal services that cannot assist the referred client because they lack resources or expertise, the client may remain without legal support. Equally, if clients end up on a ‘referral treadmill’, where they are referred to one agency only to be referred onto another, they potentially lose interest in pursuing the matter at some point. A study by Pleasence et al. for the British Legal Services Commission describes a phenomenon called ‘referral fatigue’, where the likelihood of clients obtaining advice from an advisor they have been referred to sharply declined as the number of advisors they visited increased.⁹² The authors conclude that there is “a degree of exhaustion among members of the public as a result of being pushed from adviser to adviser”.⁹³

Facilitating appropriate referrals

The NSW Legal Referral Forum describes ‘effective legal referral’ as practice that:

• assists the customer to reach a suitable service provider with the least number of referrals
• assists the customer to take appropriate action by providing tools
• carries out the referral in a way that is appropriate to customer needs.⁹⁴

Pleasence et al. also stress:

… the importance of equipping those many individuals outside of the recognised advice sector from whom people may initially seek advice (such as health workers, social workers and politicians) with the means to effectively refer them to appropriate advisers if necessary, both through professional education and through making appropriate advisers accessible to those who are referred onto them.⁹⁵

One way to increase the appropriate referral of homeless people to legal support, is to provide simple, clear community-wide information about where to get legal assistance. This can happen on a local basis (see discussion on local networks later in this chapter) or statewide. One option for consideration is the wide distribution of the LawAccess contact number, to increase the potential for people at risk of and in the early stages of homelessness to be linked with legal information and advice. LawAccess can provide legal information and advice by telephone, and link people with local face-to-face legal services (see Chapter 6). While there are issues with homeless people accessing telephone based services, some non-legal workers suggested:

… so we’ll hand them a brochure … for legal aid or whatever … where the guy is not going to say to us ‘I can’t read’. But if we had that outreach component or telephone access, we carry mobiles with each worker where we can just plug it in and say, ‘Here you go pal, speak to this person.’ ⁹⁶

In summary, evidence from this study suggests that many homeless people initially seek advice or assistance from non-legal services or workers. SAAP services in particular already play a key role in referring clients to legal support. However, there are some difficulties with this process due to the lack of knowledge of legal services among some non-legal service providers and the risk of fatiguing clients with frequent and/or inappropriate referrals. Providing referral information (such as the LawAccess telephone number) to other services accessed by homeless people may increase the referral of homeless people in diverse circumstances to appropriate legal assistance.

Non-legal advocacy

As shown in Tables 7.2 and 7.3, another significant role for generalist caseworkers is advocating on behalf of their clients to government agencies and other services. Advocacy involves the caseworker directly engaging with other service providers on the client’s behalf. Some participants felt that the presence of an advocate made a crucial difference to the way they were treated, and consequently helped to resolve issues.

It doesn’t matter what your problem is, down there they do not seem to be sympathetic in a lot of cases. I took [caseworker] with me when I was having a problem down at Centrelink and that was unbelievable how quick it got fixed up! Because [the caseworker] was with me!⁹⁷

This participant’s caseworker also observed:

They will put something over the clients if clients go there on their own. Just your presence there, even if you don’t necessarily have to say anything, just the knowledge that there is some independent person there who is an advocate for that person. They are on their much better behaviour and they will take a somewhat different attitude, even down to their tone of voice. Because a client will go down there on his own and come back in a terrible state the way they have been spoken to and treated and I will go along and it will be a somewhat different story.⁹⁸

In some cases, the support of the caseworker was reported to be the only thing that keeps the client engaged in the process.

We find that sometimes we don’t have the manpower to go with somebody to an appointment and they won’t sit through that appointment, they’ll lose their temper halfway through that appointment. Even if you are just there to say, you know just hear what this person has to say, that can help them too, because they don’t really want to walk out of the appointment and they just can’t keep it together.⁹⁹

Challenges in providing advocacy for homeless clients

In a roundtable discussion with non-legal workers for the current study, participants discussed the balance between self-determination and the autonomy of clients, and intervention by caseworkers to assist clients in resolving issues.

We take them to Centrelink, we take them to the Department of Housing. We sit down with them and you have to explain to them what the questions are on the Department of Housing form or the Centrelink form or the Legal Aid form … I mean some of the underlying principles of SAAP are self-determination and autonomy. I often find that if they were allowed to handle things on their own you would make no progress so you have to strike a balance between being too directive and disempowering and on the other hand just allowing them to flounder …¹⁰⁰

However, the complexity of the legislation, regulations and policies that surround the provision of government services (e.g. Centrelink requirements and DOH policies) can also present a challenge to workers trying to advocate for their clients. Informants in this study suggest that workers benefit from having detailed knowledge of bureaucratic processes to successfully negotiate these services, and to identify when their clients may not have been dealt with appropriately. At one of the roundtable discussions, a group of non-legal workers remarked:

… for me the issue is understanding the legal obligations of government departments, and being able to advocate for our clients, being able to get our clients what they are entitled to. I think there needs to be a demystification of the way that all of the sort of government agencies that work with our clients operate.¹⁰¹

… when it comes to legislation of all the different departments, we’re not quite sure what the legal duties of other departments are.¹⁰²

Thus, although advocacy by non-legal workers is sometimes pivotal to a homeless client gaining a satisfactory outcome to a legal or bureaucratic problem, the success of such help is quite dependent on the extent of the individual worker’s knowledge of the processes in question.

Supporting clients with the legal process

Once a referral has been made to a legal service, a caseworker’s involvement may still continue.

I work in conjunction with [a CLC] so that if I’ve got a female client who’s been sexually assaulted there’s no way she wants to tell her story to the male solicitor up there so he’s quite agreeable for me to take all the statements, to liaise with the doctor and get everything together and then he submits the case. But I haven’t got the resources or time to do it.¹⁰³

Because we’re looking at 96 per cent of our clientele being drug users, so as a result of that, all the time we’re dealing with legal issues with the clients. We do a lot of court support and we do a lot of prison support with that as well.¹⁰⁴

One homeless participant described the value of this support to him:

I believe if people are given the support from before the time they go to court and during the court hearing itself, it just takes a lot of stress out. Like I have been to court on a number of occasions … going there has been a bit jittery but when I am there, and I know [caseworker] is there with me, it’s like, well I have got someone I know at least, so this is really good, I have got some help.¹⁰⁵

In the current study, caseworkers and non-legal agencies reported supporting clients through the legal process by:

• assisting clients to put documentation together
• ensuring clients attend meetings with the solicitor
• explaining the process to the clients
• letting a person know that they were due in court that day and, in some cases, picking the person up and taking them to court
• providing clothing to go to court in
• attending court with the client as a support person and, if necessary, explaining what has happened in court that day
• assisting clients to meet appropriate conditions for bail
• assisting clients to adhere to legal outcomes.¹⁰⁶

Consultations for this study suggest that the support offered by caseworkers and non-legal agencies can mean the difference between positive or negative legal outcomes for clients, if for no other reason than the worker can ensure the person attends court. The implications of not attending court are discussed in Chapter 8. Noting that the capacity of a service to provide court support depends upon resources, another welfare agency added:

… on a good day we can send someone. On a bad day we can’t and that can have an impact on the kind of quality of outcome that the client gets. And we have very little control over that because for us it is a resource issue.¹⁰⁷

Supporting homeless clients with bail

Bail is an agreement to attend court to answer a criminal charge. As discussed in Chapter 8, homeless people can have difficulty being granted bail and adhering to bail conditions if bail has been granted. It appears that non-legal support services may assist people to stay out of prison pending a court hearing by providing appropriate accommodation to people on bail. For instance, Legal Aid NSW reported in this study using HPIC to find appropriate accommodation for homeless clients, in order to facilitate bail being granted.¹⁰⁸ Welfare services also provide supervision and assessment and assist clients to comply with other bail conditions such as attending rehabilitation programs.¹⁰⁹

Case management

The types of support described above have been presented as discrete activities undertaken by non-legal services. However, another valuable role played by non-legal services in supporting homeless clients is that of case management—that is, where the client’s legal needs are addressed as part of an holistic program that includes other related support issues. Such processes involve the caseworker assessing the client’s legal and other needs, referring clients to legal and other specialist services, coordinating the support of different service providers (e.g. housing, financial counselling, court support, AVOs) and providing advocacy and personal support as required.¹¹⁰ Research in Queensland highlighted the benefits of ‘continually engaging’ with homeless young people, rather than providing a series of short one-off periods of support as a young person drifts in and out of homelessness.¹¹¹

Challenges to supporting clients through legal processes

All agencies deal with a limited range of issues, even though they recognise that where a range of issues exist, each issue needs to be addressed. Many health and welfare agencies are over-accessed and under-resourced and thus there are time constraints that apply to clients.¹¹²

The high level of support required by homeless clients to participate effectively in the legal process, may be beyond the resource capacity of some services to provide. Comments made at one of the roundtable discussions included:

Well, we actually keep ourselves short in the office department by sending people out to appointments with Centrelink or legal or any appointment so that’s the way to give them their cases, we do the same. We’re certainly not funded to do that, we don’t have the capacity to do that.

And from a service’s point of view, it’s a bit of a nightmare because I mean you’d understand most of us are community-based, we’re really stretched for resources and to send a worker for a whole day to go to court with someone is just a terrible waste of our resources. You know, especially if most of the day is just sitting around waiting for seven hours until the matter [is heard].¹¹³

In addition to the legal issues confronting their clients, workers themselves potentially face a number of legal issues relating to the provision of services to homeless people. One manager commented:

We need separate legal advice and it takes months to get any legal advice on some very basic issues. And I’m working under a cloud sometimes as a coordinator of a program, and I’m not sure whether I’m working within the law, outside the law. And I can’t get any advice.¹¹⁴

Workers interviewed for this study report facing a range of legal obligations, which they do not always fully understand and which affects their capacity to assist clients with legal issues. In the words of one worker interviewed:

I’ve got legal training and I’m not even sure of some of these issues myself. I mean I can see both points of view. I mean duty of care to clients clashing with clients’ rights to privacy and confidentiality for example. And statutory obligations to report this to the Commission of Serious Offences and whether in a professional relationship such as we have with our clients, whether those sections of the Crimes Act for example require us to report matters to the police … And another one that’s very important is that some of our clients are so unwell that they’re not capable of making rational decisions on their own behalf and then are we under some sort of legal obligation to have them put under the Protective Office, for example. Are we under a duty of care to do that?¹¹⁵

In some cases, workers’ concerns may be based on misunderstanding about legislation. For example, a government officer described misunderstandings about privacy legislation as follows:

Many of the workers believed that the Privacy Act … prevented them from helping their clients, and thus would not help clients based on their misunderstanding of the Act. In reality, workers can still help clients under the Privacy Act – it is more about knowing about the Act and how it can be used positively. This lack of education leads to confusion, and can lead to inadequate services.¹¹⁶

Other legal issues that workers consulted for this study said that they were unsure about included:

• workers’ statutory obligations to report serious offences they become aware of
• workers’ obligation to contact the Protective Commissioner when clients do not have the capacity at that point in time to make certain decisions (e.g. if their client suffers an acute psychotic episode)
• statutory restrictions to the assistance a worker can provide a person who may not have a valid visa
• the impact of privacy legislation (the Privacy Act 1988 (Cth) and the Privacy and Personal Information Act 1998 (NSW)) on the way workers communicate with other agencies about clients
• the difference between legal ‘information’ and ‘advice’ and the obligations entailed in each of these.¹¹⁷

Thus, while non-legal workers carry out a range of tasks that assist their homeless clients into and through legal processes, they reported a range of challenges in undertaking these duties. These difficulties may arise from a lack of adequate resources to undertake these tasks, as well as the workers need for more information about legal processes, services and options. This role becomes more complex when their clients face multiple and interrelated legal issues and if their clients have problems that effect their ability to make decisions about their legal issues. We now turn to strategies raised in consultations to address these concerns.