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How people solve legal problems: level of disadvantage and legal capability, Justice issues paper 23   

, 2016 The paper provides compelling new evidence from the Legal Australia-Wide (LAW) Survey demonstrating the lower legal capability of multiply disadvantaged people. The most disadvantaged respondents were found to be significantly more likely to take no action in response to their legal problems. In addition, when they did take action, they were significantly less likely to use self-help resources, and significantly more likely to use not-for-profit legal services, than those less disadvantaged. Further, despite their greater use of not-for-profit legal services, the most disadvantaged group had significantly lower awareness of such services. Implications for policy and effective legal assistance services are discussed. The findings clearly signal the vital role of not-for-profit legal services in extending access to justice to the most disadvantaged members of the Australian community. In addition, given the high use of health or welfare advisers by the most disadvantaged group, the results also point to collaboration between these advisers and public legal services as a key strategy to enhance access to justice for the most disadvantaged.


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Legal needs studies show that certain disadvantaged groups are significantly more likely than other members of the community to ignore their legal problems.1 And when they do act, some disadvantaged groups are also more likely to act without the benefit of formal advice (Coumarelos, Macourt, People, McDonald, Wei, Iriana & Ramsey 2012; Hadfield 2010; Pleasence, Buck, Balmer, O’Grady, Genn & Smith 2004; Pleasence 2006).2 Although the nature and severity of legal problems are key determinants of how people respond to them, recent research points to people’s ‘capability’ as also being relevant to their responses (Balmer, Buck, Patel, Denvir & Pleasence 2010; Coumarelos et al. 2012; McDonald & People 2014; Pleasence 2006; Pleasence, Coumarelos, Forell & McDonald 2014). More nuanced understanding of factors influencing problem-solving behaviour therefore holds the promise of better and more appropriate legal assistance services (Pleasence et al. 2014).

It is well established that people’s ‘personal capability’ to participate in many aspects of society can be constrained by a range of factors related to socioeconomic disadvantage such as limited literacy, education, income and poor health. Generally, personal capability is increasingly constrained by increasing disadvantage (see McLachlan, Gilfillan & Gordon 2013; Pleasence et al. 2014). Lower personal capability can include lower ‘legal capability’ to use the law and other pathways to resolve legal problems. Legal capability refers to the personal characteristics or competencies (knowledge, skills, psychological, resources) needed to effectively resolve legal problems (Balmer et al. 2010; Collard, Deeming, Wintersteiger, Jones & Seargeant 2011; Coumarelos et al. 2012; Jones 2010; Pleasence et al. 2014). Empirical research demonstrates unequal distribution of legal capability across the community (Balmer et al. 2010; Coumarelos et al. 2012; McDonald & People 2013; Pleasence et al. 2014). For example, knowledge and understanding of law and rights varies, such as perceiving and characterising problems as being ‘legal’, and identifying what can or might be done to resolve the problem, and how legal information and assistance can be obtained (see Balmer et al. 2010; Coumarelos et al. 2012; Jones 2010; McDonald & People 2013; McDonald, Forell & People 2014; Pleasence et al. 2014; Pleasence, Balmer & Reimers 2011). Personal skills, abilities and resources also vary, and affect confidence and willingness to take action, and determination to persevere to achieve resolution (Pleasence et al. 2014; Sandefur 2007). Legal capability is also affected by systemic and structural factors, such as geographic location and local service environment. For instance, limited personal capability may compound gaps in legal service infrastructure and affect awareness of, and access to, local legal services (Pleasence et al. 2014).

Research suggests disadvantaged people tend to have lower legal capability that manifests in poorer and more constrained legal problem-solving strategies, and consequently, more limited access to justice (Balmer et al. 2010; Coumarelos et al. 2012; McDonald, Forell & People 2014; McDonald & People 2013; Pleasence et al. 2014). For example, Balmer et al. (2010) demonstrated that disadvantaged groups had poorer knowledge about their rights and legal processes, and found that poorer legal knowledge led to worse outcomes if people tried to resolve their legal problem without professional advice. Furthermore, disadvantaged people may also lack the financial resources to engage a private lawyer. Thus, disadvantaged people may lack the capability and resources to resolve legal problems.

Recent analyses of the Legal Australia-Wide (LAW) Survey national dataset demonstrated that multiply disadvantaged people have higher vulnerability to legal problems, with vulnerability increasing or compounding as the level of disadvantage increases (McDonald & Wei 2013). Further, LAW Survey analyses by Iriana, Pleasence and Coumarelos (2013) suggested that multiple disadvantage results in poorer strategies in response to legal problems. Multiply disadvantaged respondents were significantly less likely to take action, and when they acted, were significantly less likely to consult legal and non-legal professionals.

This paper further examines whether multiple disadvantage is associated with lower legal capability to resolve legal problems. Using the LAW Survey national data, the paper builds on the analysis by Iriana, Pleasence and Coumarelos (2013) by using finer-grained categorisation of legal problem-solving strategies to investigate this relationship. Iriana, Pleasence and Coumarelos (2013) used four categories of strategy: taking no action, handling the problem without formal advice, using a non-legal professional and using a legal professional. The present study breaks down some of these categories. It examines the use of self-help resources separately from other ways of handling the problem without professional advice. It also examines the use of private lawyers separately from the use of not-for-profit legal services. Based on their lower personal capability and financial resources, it is hypothesised that more disadvantaged respondents will have lower legal capability, indicated by more limited legal problem-solving strategies. Specifically, it is hypothesised that more disadvantaged respondents will:

 The term `legal problem` is used throughout this paper for easy reference to a problem that is `justiciable` in that it raises legal issues with the potential for legal resolution, regardless of whether the respondent recognised this or took any action involving the justice system (cf. Genn 1999).
 For example, the Legal Australia-Wide Survey found that people with low education, people unemployed in the previous twelve months, and those with a non-English main language, had lower odds of taking action and seeking advice than others. Compared to others, people with a disability had higher odds of taking action and seeking advice, and the odds of seeking advice were also higher single parents (Coumarelos et al. 2012).