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Research Report: How people solve legal problems: level of disadvantage and legal capability, Justice issues paper 23
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How people solve legal problems: level of disadvantage and legal capability, Justice issues paper 23  ( 2016 )  Cite this report



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Discussion


The present study indicates the unequal distribution of legal capability across the Australian community and demonstrates the key role of not-for-profit legal services in affording the most disadvantaged access to justice. The findings suggest that the most disadvantaged have lower legal capability, as indicated by their use of lower level legal problem-solving strategies. They are less aware of not-for-profit legal services and less likely to take action in response to their legal problems. When they do try to resolve their legal problems, they are less likely to use self-help, non-legal professionals and private lawyers as their highest-level strategy and are more reliant on not-for-profit legal services. These findings point to the most disadvantaged experiencing greater personal and systemic constraints on legal problem solving, and signal reduced personal capability to resolve legal problems without recourse to public legal assistance services (see Pleasence et al. 2014).

There are a number of explanations for the greater use of not-for-profit legal services by the most disadvantaged. Public legal assistance services are intended to improve access to justice for disadvantaged Australians (e.g. Council of Australia Governments 2015). As such, the most disadvantaged are the group most likely to satisfy eligibility criteria for not-for-profit legal services. However, given that not-for-profit legal services typically also provide a range of legal information and advice services without eligibility criteria, this is only a partial explanation, and particularly so given the finding that it was actually the most disadvantaged who were found to have the lowest awareness of not-for-profit legal services. The greater use of not-for-profit legal services by the most disadvantaged group may in part reflect the effective targeting of these services to them by way of outreach and duty legal services (see Forell, McDonald, Ramsey & Williams 2013; Forell, Ramsey, McDonald & Williams 2013; McDonald, Forell, Wei & Williams 2014; Pleasence et al. 2014).

The apparent greater reliance on not-for-profit legal services by the most disadvantaged appears to also reflect their greater need and more limited ability to deal with their legal problems without public legal assistance (e.g. Coumarelos et al. 2012; McDonald & Wei 2013; Pleasence et al. 2014). Indeed, the results show that the most disadvantaged are significantly less likely to make use of self-help, non-legal advisers and private lawyers as their highest-level strategy. The apparent lower legal capability of the most disadvantaged may also stem from greater non-legal needs. Empirical research has clearly demonstrated the overlap between legal and other public service needs, such as health, housing and employment, and has identified social disadvantage and capability as important access to justice barriers (Coumarelos et al. 2012; Pleasence 2006; Pleasence et al. 2014). Reduced capacity to self-help, due to greater legal and non-legal needs, suggests that self-help strategies are potentially ill-suited to the needs and circumstances of more disadvantaged groups, who may, instead, require more intensive forms of legal assistance, such as professional advice and minor assistance, to successfully resolve their legal problems.

The above findings have a number of important policy implications (summarised in Box 1). First, there is a clear nexus between the provision of public legal assistance services and the ability of the most disadvantaged to access justice. Consistent with research in overseas jurisdictions with similar public legal assistance services — namely, Canada, England and Wales, Netherlands, New Zealand and Scotland — the findings demonstrate the role of public legal assistance services in providing access to justice to people who may otherwise not obtain any legal information or private legal assistance (see Pleasence & Balmer 2012). Most importantly, strategies to better meet the legal needs of the most disadvantaged appear to depend on the capacity of not-for-profit services to appropriately meet their legal needs. In fact, the findings suggest that any reduction in the capacity of not-for-profit legal services is likely to reduce the access to justice among the most disadvantaged people in the community.



Second, legal information strategies — such as the provision of legal information through websites, leaflets, self-help guides and the like — appear to be less suited to the legal need and capability of the most disadvantaged. Not only are the most disadvantaged the group least likely to take action in response to legal problems, but when they do act, they are the group least likely to try to use a self-help resource, either as their highest-level strategy or at all. These findings are consistent with qualitative research demonstrating the lower ability of particular disadvantaged groups — such as the homeless, people with a mental illness and prisoners — to access and participate in the justice system (Forell, McCarron & Schetzer 2005; Grunseit, Forell & McCarron 2008; Karras, McCarron, Gray & Ardasinski 2006; Nehu & McDonald 2010; Pleasence et al. 2014; Sandefur 2007).

Consequently, legal education and information strategies may be insufficient and as stand-alone strategies for the most disadvantaged. That is, they may be insufficient to successfully resolve the legal problems they experience, and insufficient to successfully change entrenched poor legal problem-solving behaviour (see Coumarelos et al. 2012; Pleasence 2006; Pleasence et al. 2014). For disadvantaged, less capable groups, legal education and information strategies may be more effective as complementary strategies to connect them with more appropriate forms of service, such as legal advice, minor assistance and representation (see Coumarelos et al. 2012; Forell & McDonald 2015). To be effective, legal education and information may therefore have to be targeted and tailored to the legal needs and capability of particular disadvantaged groups: to raise awareness of legal rights and what might be done to redress legal problems, and successfully connect them with timely and more appropriate forms of legal assistance (see Pleasence et al. 2014). The potential benefit of education and information strategies specifically intended to signpost disadvantaged people to legal services is indicated by the present finding that those least likely to take action in response to legal problems are those among the most disadvantaged who are unware of not-for-profit legal services.26

Recent research suggests that effective community legal education and information strategies may need to extend beyond merely providing knowledge and understanding of legal issues by also developing the skill and confidence (and motivation) necessary to overcome interlocking barriers that constrain action (see McDonald, Forell & People 2014). Improved clarity around who particular legal education and information initiatives are targeted to, and realistic expectations about what they are intended to achieve, would assist the development of more integrated and coordinated legal information and other assistance services (see Forell & McDonald 2015). Of course, this begs wider questions about what types of public legal assistance services should be available to help those who are less likely to help themselves and how the level of legal assistance can be appropriately matched to individual clients’ legal need and capability (see Pleasence et al. 2014).

Third, it is particularly striking that the only type of advisers that the most disadvantaged were significantly more likely to use for their legal problems were health or welfare advisers and not-for-profit legal services. This finding provides stark empirical evidence further identifying health and welfare advisers as important access to justice pathways, particularly for more disadvantaged and less capable people at heightened risk of unmet legal need (Coumarelos et al. 2012; Coumarelos, Pleasence & Wei 2013; Pleasence et al. 2014). However, health and welfare advisers must be supported to perform this role (see Coumarelos et al. 2012). Better integration and collaboration between health and legal services, such as medico-legal and health justice partnerships, may be a key strategy for better meeting the legal needs and capability of the most disadvantaged (see Coumarelos, Pleasence & Wei 2013; McDonald & Wei 2013; Pleasence et al. 2014). For instance, it has been show that joining-up between health and welfare and legal services can provide more culturally appropriate and accessible legal assistance services to socially isolated and disadvantaged migrant communities (McDonald et al. 2014; Pleasence et al. 2014).

Fourth, although not-for-profit legal services perform a vital role in extending access to justice to the most disadvantaged, it is of concern that the most disadvantaged exhibited significantly lower awareness of free legal assistance services from CLCs and legal aid than did other respondents. Critically, lack of awareness of public legal assistance services is a primary constraint on the legal capability of the most disadvantaged, and significantly increases their likelihood of inaction. Thus, one key strategy for overcoming barriers to action stemming from lack of awareness of not-for-profit legal services, again, is to better connect with the health and welfare professionals that the most disadvantaged are significantly more likely to try to obtain assistance from. Health and welfare professionals can potentially play an important role as effective legal ‘problem noticers’ who spot and refer clients to appropriate legal services (Coumarelos et al. 2012; Pleasence 2006). Another key strategy is community legal education and information to signpost the most disadvantaged to accessible and appropriate legal assistance (see Coumarelos et al. 2012; Forell & McDonald 2015; Pleasence et al. 2014). Targeted and tailored legal education and information may therefore be critical to assisting more disadvantaged groups to ‘get help’, as well as assisting the health and welfare advisers they often use to ‘give help’ by connecting them with legal assistance (see Forell & McDonald 2015).

Finally, the findings provide compelling new evidence to pinpoint the most disadvantaged as the group least legally capable and at greatest risk of unmet legal need, and further support the view that effective access to justice policy must be need- and client-focused. A holistic and multifaceted approach is necessary to cater for diverse legal needs and capability across the whole community (Coumarelos et al. 2012). Given the lower legal capability of the most disadvantaged, targeted and tailored assistance strategies are critical to their access to justice. More broadly, to most efficiently and effectively assist more disadvantaged people and groups, services should be targeted to reach those with the highest legal need and lowest capability, joined-up with other services to address complex life problems and provide effective legal pathways, timely to minimise the impact of problems and maximise the utility of services, and appropriate to the legal needs and capability of users (see further Pleasence et al. 2014).

For instance, clients typically have to make a greater contribution to achieved outcomes when they obtain less intensive (and less expensive) forms of legal assistance such as legal information and self-help resources than they do when they receive more intensive (and more expensive) forms of legal assistance such as legal advice, minor assistance and representation services. That is, they have to do more of the work and perform more of the tasks necessary to successfully resolve the issue (see Pleasence et al. 2014).

26  For instance, clients typically have to make a greater contribution to achieved outcomes when they obtain less intensive (and less expensive) forms of legal assistance such as legal information and self-help resources than they do when they receive more intensive (and more expensive) forms of legal assistance such as legal advice, minor assistance and representation services. That is, they have to do more of the work and perform more of the tasks necessary to successfully resolve the issue (see Pleasence et al. 2014).


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McDonald, HM & Wei, Z 2015, How people solve legal problems: level of disadvantage and legal capability, Justice issues paper 23, Law and Justice Foundation of NSW, Sydney.