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Ch 9. Conclusion
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… we end up taking alternative actions to fix these problems, rather than take legal steps, because the law doesn’t service us.1
Homelessness is often indicative of complex legal and other needs. Things have gone astray, safety nets have failed. As a result, people have lost their accommodation or are caught in marginal accommodation. Commonly they have debts, may be dealing with family law issues, have been victims of crime, accumulated fines and/or are facing criminal charges. And yet homeless people can rarely focus on resolving their legal needs. They are often preoccupied with other issues, such as finding somewhere to stay, dealing with social security issues, caring for family, keeping safe or dealing with immediate crises. Mental health and other disabilities, alcohol and other drug abuse, poor literacy and limited resources can also contribute to a situation where legal issues compound, spiralling people into or further entrenching them in homelessness. Add to this the prevalent feeling among homeless people that the system does not work in their interest, and you have a situation where people may need legal support but lack the capacity and confidence to locate and use legal assistance services or legal processes that may assist them.
Ideally, legal service provision to homeless people needs to recognise this situation. It needs to be accessible to people from the places that they frequent, to have the time and skills to assess the total legal needs of the clients and to be part of a coordinated response to those needs. ‘Coordination’ may involve having different legal services, as well as legal and non-legal service providers working together with a focus on the client (rather than individual legal problems), to address the often complex needs facing homeless people. In this regard, the role that non-legal service providers play in assisting homeless people to access and use legal assistance services and to participate in legal processes cannot be underestimated.
Homelessness in NSW
This study used a broad definition of homelessness that consists of three main categories:
- primary homelessness, which includes sleeping ‘rough’, in cars, on trains and in squats
- secondary homelessness, in which people move frequently from one form of temporary shelter or accommodation to another, including emergency accommodation and family and friends
- tertiary homelessness, which in this study includes people who live in boarding houses on a medium- to long-term basis and marginal residents of residential or caravan parks.
While homelessness has been categorised in this way, it has been conceptualised as a process, rather than a static state. Some people are homeless for a short time before regaining housing, while others become entrenched in homelessness, or move in and out of homelessness, or between different forms of accommodation on a regular basis.
On Census night 2001, an estimated 33 500 people in NSW were homeless by this definition. However, in contrast to the traditional view of homelessness as an inner-city problem, nearly half of the homeless people in NSW live outside the Greater Sydney area. While the concentration of homeless people living in the inner city is one of the highest in the State, some regional areas, in particular coastal NSW, also have very high rates of homelessness.
The homeless population also has a diverse demographic profile. An estimated 43% of homeless people are under the age of 25.2 These young people tend to be fairly transient, moving between refuges, transitional housing and friends and families. Forty per cent of the homeless in NSW are female, with the proportion of the homeless who are women highest in the younger age groups. Data also indicate that there are increasing numbers of families experiencing homelessness. As might be expected, the vast majority of homeless people have no income, are on social security or have a very low income.
Also disproportionately represented in the NSW homeless population are Aboriginal people, people recently released from prison, people who have at some time been placed in state care, transgender people and people recently arrived from overseas. Finally, mental illness, alcohol and other drug abuse and histories of trauma and abuse are more common among some sectors of the homeless population than in the general population, particularly those living at primary levels of homelessness.
Thus, in addition to people living on the streets in inner-city areas, homeless people are also found in suburban, regional and rural areas. They are not just older men or ‘street kids’; they also include women and families who may be escaping domestic violence and family breakdown, young people living with family and friends, and people living in boarding houses and caravan parks. The discussion in this report about legal issues, barriers to justice and legal service delivery to homeless people strongly reflects this broader conceptualisation of homelessness.
Legal issues facing homeless people in NSW
A salient theme concerning legal issues identified in this report is that, at any one time, homeless people tend to have multiple and interrelated legal problems, which if left unaddressed can further exacerbate homelessness. That said, the range of legal issues people face may vary as they move through homelessness. First, it appears that the incidents leading to homelessness often have, at least in part, legal implications. These may include:
- family law issues reflecting family breakdown
- domestic violence
- housing-related legal issues, including housing debt, eviction and problems re-entering housing due to being placed on residential tenancy databases
- outstanding debt-related legal issues reflecting financial disadvantage and chaotic lives
- unlawful discrimination preventing people from maintaining financial and accommodation security.
Indeed, for some people, the path into homelessness is the product of a number of compounding incidents, such as an injury or illness, loss of work, loss of income, debt, family breakdown and, finally, losing housing. Thus, legal assistance when these events occur may in fact prevent or reduce the risk of people becoming homeless.
Secondly, homelessness itself also places people at risk of experiencing particular legal issues. In turn, these issues can exacerbate the experience of homelessness and make it harder for people to regain housing. These issues include:
- problems complying with social security requirements
- vulnerability to crime victimisation as a result of a lack of secure housing
- legal issues related to their accommodation in boarding houses and caravan parks
- debt accumulated from fines
- being moved on by police, transit officers and council rangers as a result of their greater visibility and occupation of public space
- criminal law problems, including those relating to alcohol and other drug abuse.
It also seems to be the case that there are certain laws, policies, legal processes and practices that may aggravate homelessness or leave people vulnerable to it. Those identified in the current study include:
- the limited use of exclusion orders by local courts in AVO applications. Exclusion orders enable victims of domestic violence to remain in their home while excluding their violent partners
- the recent introduction of renewable tenancy agreements and acceptable behaviour agreements, which allow DOH to evict people on the basis of ‘anti-social’ behaviour. These amendments may potentially increase the risk of homelessness for public housing tenants with complex needs (e.g. people with a mental illness or families with children with behavioural or other disabilities)
- the use and structure of residential tenancy databases. Unregulated until very recently, numerous stakeholders noted the impact of residential tenancy databases on homeless people trying to re-access the rental market. New regulations do not prohibit the use of these databases, but do allow some protection against their arbitrary and unfair use by landlords and real estate agents
- the lack of tenancy protection for boarders and lodgers and limited protection to marginal residents of caravan parks under the Residential Tenancies Act 1987 (NSW), which leave these groups vulnerable to arbitrary eviction and unsanitary and dangerous living conditions. As boarding houses and caravan parks close down, there is an increasing shortage of available accommodation. People report not complaining about sub-standard accommodation as they may have no alternatives if they are evicted as a result of the complaint
- Due to their public visibility, many homeless people, particularly young homeless people often receive multiple fines for offences such as littering, transport fines and other offensive behaviour. They also have difficulty negotiating the multi-agency process (e.g. the IPB, the SDRO and the Roads and Traffic Authority) to pay or challenge these fines. Consequently, people can accrue significant debts, which hinder their ability to exit homelessness. The link between non-traffic related fines (e.g. littering) and the suspension of driver licences and/or the cancellation of car registration also leaves people vulnerable to further offending (e.g. driving without a licence).
While legal assistance can help homeless people to address their legal issues, this study has found that homeless people face a number of barriers in gaining access to legal assistance.
Barriers to homeless people accessing legal assistance
Barriers identified in the current study that can prevent homeless people from gaining access to legal assistance include:
- limited personal resources and lack of stable accommodation
- isolation from services or not knowing where to go
- low levels of literacy and education, disability, poor health and alcohol and other drug addiction
- having other essential priorities and feeling overwhelmed by the many issues they face
- feeling intimidated by the legal system, which they do not believe will work in their interests
- lack of awareness of their legal rights.
Some of these barriers arise directly from the state of homelessness (e.g. not having a stable address, having other immediate priorities) while others may be the manifestation of other issues common in the homeless population (e.g. lack of personal resources, low literacy levels). Over-representation of disadvantaged sub-groups and multiple membership of marginalised groups within the homeless population also contribute to the barriers faced by this population.
These many difficulties compound to keep homeless people from legal assistance. Thus, on a day-to-day basis, a homeless person may be too busy looking for accommodation, meeting Centrelink requirements, or caring for family to address a legal issue. That person’s capacity to seek assistance may also be compromised by mental health or alcohol and other drug issues. Coupled with limited resources, a sense of hopelessness, a lack of knowledge of legal options and a feeling that the law would never work in their interests, legal issues are likely to remain unaddressed. Services report that when homeless people finally do contact a legal service (if at all), the issue has usually already reached crisis point: the eviction is imminent; their benefits have been cut off; the court case is tomorrow. In some cases, it may be too late to resolve the issue (e.g. the limitation or appeal period may have expired) or the issue has become more complex and difficult to address. It has therefore been argued in this report that the multiple, urgent and interrelated legal and other problems homeless people have, together with the compounding barriers they face in addressing these issues, have significant implications for the nature and type of legal service delivery which is appropriate for homeless people in this state.
Legal assistance for homeless people in NSW
Generally speaking, legal assistance may be provided in the form of plain language legal information, legal advice, initial legal assistance (such as drafting a letter in response to a claim) and representation in a court or tribunal. In NSW, legal assistance is provided to homeless people by a number of different agencies.
Legal Aid NSW, CLSs and ALSs are the primary legal service providers to homeless people throughout NSW, even though, generally speaking, legal service provision to homeless people by these agencies is not separately identified or specifically resourced. It has been argued in this report that LawAccess also has a major role in providing legal assistance to this client group and in linking isolated homeless people to other legal services.
In addition to these generalist agencies are the specialist legal services and clinics for homeless people: the LCRC, the HPLS, Shopfront and the legal clinics at the Exodus Foundation and Lou’s Place. These specialist services have been established to addresses many of the barriers faced by homeless people in accessing legal services (and include many features listed below). However, the majority of these services are pro bono services, which are most viable in city locations where there are high rates of homelessness and where there are law firms with the pro bono capacity to service these clinics. Specialist services are best examined as models of legal service delivery, rather than as the primary sources of legal support to homeless people in this State.
Given the particular legal needs of homeless people and the barriers they face in seeking assistance for those needs, it appears that homeless people benefit from legal assistance services that:
- are located in places frequented by or accessible to homeless people throughout NSW
- are in or have a less formal environment
- have longer appointment times to spend with clients
- are staffed with legal officers who are skilled in communicating with people with complex needs
- can provide continuity of service
- can provide timely legal advice and support (i.e. less waiting time for an appointment)
- have the capacity to address or coordinate a response to a range of legal issues
- can be coordinated with the provision of non-legal services (e.g. caseworker support, accommodation services, alcohol and other drug treatment)
- can assist and empower clients to address their legal rights.
Homeless people also benefit from early legal intervention, that is, legal assistance that is provided as soon as possible after the legal issue has arisen and before it has reached crisis point and affected other areas of their lives.
A structural feature of legal service delivery in NSW that seems to present difficulties for homeless and other disadvantaged people is that different legal issues tend to be separately dealt with by different legal services or practitioners. For instance, a duty lawyer may assist in a criminal matter, a grant of legal aid may be provided for a family law issue, a community legal centre may assist with a debt matter, and the Chamber Magistrate, the police or the Women’s Domestic Violence Court Assistance Scheme may assist with an AVO. This separation of legal service delivery is in contrast to the multiple and interrelated nature of the legal and other issues confronting homeless people. Not only must a homeless person potentially access a number of different legal assistance services, but the legal services provided are less likely to be coordinated. Each time the homeless person needs to access another legal service they are again potentially faced with the issues of cost, transport, finding documentation, overcoming their fear or lack of faith in the system and telling their story yet again to another busy service provider, who may only be able to deal with one of their legal issues. Thus, a system that offers separate legal services for different issues and lacks coordination between these services can, in and of itself, present a barrier to homeless people effectively addressing their legal needs.
In addition, while individual legal services may have relationships with local welfare and other services, legal services appear not to be routinely included in some ‘human service’ networks (which include community services, housing, welfare agencies), particularly at the planning/policy level. This again contrasts significantly to the experience of homeless people, where legal and social issues are usually intertwined. The separation of legal services from other human services, and the ‘siloing’ of legal matters within the legal services, makes it difficult to take a holistic ‘case management’ approach to clients. A ‘case management’ approach involves addressing the a client’s many complex needs as a package. To facilitate this, closer links need to be made between different legal services providers and between legal and non-legal services for homeless people.
Non-legal assistance in legal processes
A few of the homeless participants in this study said that if they had a legal problem, they would go directly to Legal Aid NSW or to another legal service they were familiar with. However, this and other studies suggest that homeless people are, at least initially, more likely to turn to non-legal services or workers for advice when they have a legal problem. Consultations and SAAP data indicate that homeless person’s services, particularly SAAP services, are a key link between their clients and legal assistance. As well as providing food, shelter and medical attention, some of these organisations also provide advocacy and legal information, advice and referral services. In this study, caseworkers and service providers were found to play a vital role in assisting homeless clients to identify their legal issues, obtain legal assistance, engage in legal processes and manage the outcomes. Specific tasks included referring clients to legal services and, in some cases, accompanying them to appointments, ‘interpreting’ the advice provided by lawyers, assisting clients to gather relevant documentation, assisting people with clothing for court, providing court support, explaining court processes, and providing accommodation so people could be released on bail.
To assist caseworkers in adequately supporting homeless clients with legal problems, service providers in the current study said that they wanted access to timely legal information, legal advice and relevant legal ‘education’. The aim would not be to equip these workers to ‘advise’ clients, but to support clients into and through legal processes. Workers also stressed the significant benefits of interagency collaboration for legal service providers, non-legal service providers and, most importantly, their homeless clients. This is consistent with directions highlighted in current policy and research.
However, some homeless people have no contact with SAAP services. This group may rely on family and friends or more general services such as doctors or health services, schools, tenancy/housing workers or Centrelink for support. Given this, if these general services are to be equipped to appropriately refer clients to legal assistance services, the message given to these agencies must be as direct and simple as possible. One option for consideration is the wide distribution of the LawAccess contact telephone number. This involves increasing general community awareness of the service as well as directing information to the types of agencies and services discussed in chapter 7. Another option is to consider telephone access points to LawAccess, in places such as Centrelink waiting areas. LawAccess can provide legal information and advice by telephone, and link people with local face-to-face legal services. An added benefit in using LawAccess as a referral point to legal services is that it may cut down the number of times a person is referred from place to place, reducing the prospect of referral fatigue.
Participation in the legal system
The last step in addressing legal need involves facilitating effective participation in the legal system, with the aim of improving the prospect of better legal outcomes for homeless people. This project found that, in spite of their many legal needs, there was relatively little evidence of the participation of homeless people in legal processes. Given the range of barriers they face, it appears that homeless people simply do not get this far into the process. Indeed, it appears that many homeless people resolve (or do not resolve) their legal issues in other ways. For example, people reported simply moving elsewhere when evicted rather than challenging the eviction, not seeking access to their children, or accepting a decision even if they did not agree with it.
Even when homeless people are compelled to participate (e.g. in a criminal procedure), they may fail to participate effectively or fail to do so at all (leading to further legal consequences). Stakeholders and interviewees reported that homeless people face particular difficulties in doing what is required of them in legal processes (e.g. attending court, providing documentation) to obtain the best possible outcome. Factors which were identified as contributing to these difficulties included:
- limited motivation to pursue their legal issues, together with a fear of or lack of confidence in the legal system. Many homeless people lack faith that the legal system can deliver favourable outcomes to people in their situation
- a lack of awareness of their legal rights, options for legal redress and which legal process to follow. This extends to people not being aware of the right or process to appeal decisions made by government departments such as Centrelink and DOH. This can be exacerbated by mental illness or other cognitive impairment
- not having a stable address or contact details at which to receive notification of hearing dates. This is a particular issue in relation to criminal matters. Not having a stable address can also impact on the ability of people to be granted bail
- the complexity of legal processes, which can be multi-tiered and lengthy (e.g. the fine enforcement system and the social security appeals process)
- the formality of legal proceedings, which people report finding intimidating
- the reliance in legal processes on written documentation and applications, which presents difficulties for people with poor literacy or comprehension
- the cost and limited availability of legal representation for some legal matters.
Non-legal workers and advocates, together with the legal assistance services detailed above, all assist homeless people to overcome these barriers. In addition, some legal processes, such as the SSAT, the HAC and the NSW Ombudsman, provide a much more flexible service delivery, which may increase accessibility of their processes to homeless people.
In many instances, by the time a homeless person gets to court or a tribunal, they have reached a point of crisis and have multiple legal and social needs. Unlike the traditional justice model approach, a therapeutic jurisprudence approach uses the law to address the social and legal needs of people that can contribute to their homelessness. The Red Hook Community Justice Center (New York), the California Homeless Courts, the NSW Drug Courts and the MERIT program are all examples of attempts to apply a therapeutic jurisprudence approach to the legal process. These are examples of the way in which courts and tribunals can be used as a point of intervention and referral to other services to address the non-legal needs of homeless people. Another example of a program that has a more direct focus on homeless people is the Special Circumstances List at the Magistrates Court of Victoria. This program links people appearing before the court back to social services, addressing their legal and social needs at the one time. This is factored into the court outcome for the defendant.
Homelessness and the law: bridging disparate worlds
The aim of this project has been to document the access to justice issues facing homeless people in NSW. It has documented the legal issues commonly faced by people as they move through homelessness, the barriers they face in obtaining assistance for these problems, the factors prohibiting them from participating effectively in legal processes and the legal and other services that work to bridge this gap.
A major observation that may be drawn from this report concerns the intrinsic relationship between homelessness and the law. First, complex legal need appears to be a feature of homelessness. Secondly, homelessness itself can hinder the resolution of those issues. Thirdly, where homeless people are supported to engage in legal processes, the law can provide solutions to these issues, and provide pathways out of homelessness. A challenge for those providing legal assistance to this group is to bridge the considerable gap between the chaotic world in which homeless people inhabit, and the formality and structure of the legal system.
The capacity of legal assistance services and the legal system itself to meet the needs of homeless people rest on a number of factors. First, recognition of the considerable diversity among homeless people in NSW. This has implications for identifying where homeless people are situated, what their differing legal issues are and what particular constraints they face in addressing these issues. Second, the capacity of services to address the barriers that prevent homeless people from accessing legal services and engaging in legal processes. Third, recognising the key role that non-legal service providers can play in assisting homeless people in legal processes, and the support and information they require to fulfil this role. Finally, homeless people benefit from legal services that work with other agencies to provide a client focused, rather than a problem-focused approach to meeting their complex needs.
This report has discussed a range of strategies that can and are being taken to more constructively engage homeless people in legal processes and to facilitate better outcomes for this group. The consequences of these actions will be far reaching. Not only will addressing these barriers alleviate the daily experience of having unresolved legal issues; they can also alleviate and prevent people from becoming homeless.
The ideas and discussion presented in this report are those of the legal professionals, caseworkers, service providers and, most importantly, the homeless people consulted for this study. It is they who best understand the legal needs and access to justice issues facing homeless people in this State. It is they who must be engaged in structuring legal service delivery to best meet the complex needs of homeless people in NSW.