Pathways to justice: the role of non-legal services, Justice issues paper 1 ( 2007 ) Cite this report
However, the A2JLN research indicates that many welfare-related services in particular, play a very direct and active role in assisting clients with legal issues. The following discussion outlines the various ways that some non-legal services — particularly welfare related services — provide or link clients with legal assistance. These include:
In other cases, workers and services may provide case management involving assistance with legal issues when they are not trained or funded to do so, out of a desire to provide clients with the support they need, even when resources are not allocated for such support. The specific tasks that non-legal workers reported undertaking to assist clients with legal problems are outlined below.
Identifying the problem
|The pathway to a lawyer is the person who will advise them that they need a lawyer.
— Service provider, The Legal Needs of Older People
The A2JLN research suggests that 'frontline' nonlegal service providers may be the first to identify that a client has a problem that requires legal advice or assistance, even when a client approaches the service about other issues. For example, a youth worker assisting a client to find accommodation may discover that the client has large amounts of finerelated debt. Similarly, a doctor may identify that a patient is a victim of domestic violence or elder abuse when they present with certain injuries.
Services that have a 'case management' role with clients, such as youth and homeless workers, specifically identify 'assessment and referral' — the identification of issues facing their client and referral to appropriate support — as part of their role. A homelessness worker stated:
|… They give out free lunches, you go into the hall, have lunch, have a chat. If you have a problem you go to the office, you tell them what your problem is at the reception, like, 'I've got a legal issue' and they say, 'Sit down, we'll go and get our legal person on for you.' From there, they refer you either to Legal Aid or somebody else who will tell you what your options are, and you take it from there.
— Homeless participant, No Home, No Justice?
In a number of the A2JLN studies, non-legal services reported referring clients to legal services and legal services reported receiving referred clients. As one legal service provider reflected:
If you think in your mind now about all the clients that you have currently with mental health issues, mine are all referrals. They are not walking into the centre, they are coming from youth centres.15
In some cases this is simply a 'cold referral': providing information about another agency or service so that the client can contact them. In other cases, the referral is more proactive, a 'warm referral'.16 A 'warm referral' involves contacting another service on the client's behalf and may also involve writing a report or case history on the client for the legal service and/or attending the service with the client. This may be effective for clients who are hesitant to contact other services or who may not have the means — such as a telephone — to contact the other agency. One mental health service provider commented:
I think it is incredibly easy just to refer them out. But I think with mental illness, or anyone that is seriously disadvantaged, that is not going to work because they won't [take] the referral. So there needs to be more hand-holding. So that means possibly people being able to go between a number of resources and act as a central coordinator to assist that person instead of just a referral. They don't just ring… [they] make sure they don't fall through the cracks.17
A service may use both types of referral, depending on the time available to them and the needs of each individual client.18 While many people with legal problems may only need to be informed about which service to contact, the research suggests that people with complex needs may require more intensive support.
The level of referrals between services was reflected in statistical data, such as that collected from homelessness services (SAAP data) and reported by the AIHW. SAAP data indicate that in approximately 25 per cent of the support periods where the client requested help with a legal issue or court support, the service referred the client to another service (such as a lawyer) to address at least part of the issue.19
Providing legal information
Non-legal service providers are often asked for legal information or advice. Non-legal workers reported providing their clients with preliminary information about a legal issue and the process of resolving it, including information about how particular legal processes work, what happens at court, what documents they need and how to dress to appear in court.20 Legal information may be provided verbally, or in the form of pamphlets or other published legal information (e.g. videos, posters and booklets). However, there can be risks in people who are not lawyers or legally trained in giving legal advice. The advice they give may be wrong and they may not be covered by appropriate insurance. For these reasons, organisations — both legal and non-legal — may prohibit workers who do not have legal training or a solicitor's practicing certificate from giving legal advice to clients.21 Some of the problems workers face in distinguishing between legal information and legal advice are discussed later in this paper.
Assisting with documentation
Dealing with government agencies (e.g. for income or housing) often involves processes which rely heavily on written correspondence, the completion of forms and the provision of documents such as those required to prove identity or place of residence. These processes can pose significant challenges for people using these services, particularly for those with complex needs or particular disadvantage (e.g. intellectual disability, mental health issues, homelessness, or limited literacy and comprehension skills). For instance, people with cognitive impairment reported difficulties in managing their affairs, communicating with lawyers, understanding legal documents and articulating their complaints.22 These difficulties can place a considerable burden on non-legal workers to assist these clients to participate in these processes and understand their legal rights and obligations. A number of non-legal workers reported completing court forms and divorce forms for clients and helping them write letters.23 A homelessness worker commented:
|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.
—Homelessness worker, No Home, No Justice?
Depending upon the clients' needs, workers may accompany clients to legal appointments to ensure that they attend, to provide support during the appointment and, in some cases, to later more fully explain what it is the lawyer has told the client. Both disadvantaged people and workers interviewed for the A2JLN studies identified the role of non-legal support people in assisting homeless people to keep calm and focussed during appointments with legal practitioners. As one homelessness worker noted:
Advocacy is speaking on behalf of someone or helping them to speak for themselves by offering support and assistance. For example, a worker may advocate for a client by contacting the Department of Housing to discuss the client's options and needs in relation to government housing. Non-legal workers commonly reported advocating for clients by engaging directly with government agencies or other services such as Centrelink or the State Debt Recovery Office. For instance, in the 2004–05 financial year, 34 per cent of all SAAP support periods involved 'advocacy or liaison on behalf of the client'. A further 20 per cent of support periods involved 'assistance to obtain or maintain independent housing' and 8 per cent involved 'assistance to obtain or remain on government benefits'.26 One homeless person described the benefits, as he saw it, of this support:
Some non-legal services and workers also support clients, particularly vulnerable clients or clients with complex needs, once they become involved in legal processes. For instance, homelessness workers reported assisting clients by: