Justice made to measure: NSW legal needs survey in disadvantaged areas ( 2006 ) Cite this report
Ch 1. Introduction
The move away from narrowly focusing on issues dealt with by private lawyers began in the 1970s in the United States with Curran’s (1977) monumental study for the American Bar Association (ABA) and American Bar Foundation. The study involved a large-scale survey across the United States of a representative general population sample of 2064 adults. It examined the circumstances under which individuals sought the advice or assistance of lawyers, and attempted to identify the factors associated with seeking such advice or assistance. The survey asked participants whether they had experienced a wide range of legal issues over the course of their lifetime, including real property, employment, consumer matters, as well as problems with governmental agencies. They were also asked what they did about the legal issues they had experienced.
The survey found that the mean number of problems experienced per respondent’s lifetime was 4.8. However, there was wide variation among respondents, with 1 per cent of respondents reporting more than 20 legal problems in their lifetime, and 8 per cent reporting no legal problems in their lifetime (Curran 1977). Curran found that the incidence of problems depended on the type of problem, with issues relating to torts (9%) and real property (9%) having the highest yearly incidence.
The Spangenberg Group (1989) conducted a telephone survey of 500 low-income households across the United States drawn from a list of randomly generated telephone numbers.3 This study was a pilot study for a large-scale survey reported by the ABA in 1994. The Spangenberg Group study examined the incidence of legal need in the preceding year and the extent to which respondents had received legal assistance for their legal needs. The survey was restricted to 10 categories of civil problems, consisting of 34 civil problems in all. The authors found that almost 43 per cent of the 500 households reported at least one civil legal problem during the past year, with each household reporting an average of 3.2 problems during that time.
The ABA (1994) study based on the Spangenberg Group (1989) pilot involved more than 3000 interviews among low- and moderate-income households across the United States.4 The study involved a general population sample randomly drawn from all households with telephones, a sample of additional low-income households and a sample of households without telephones. The study examined the incidence and prevalence of legal needs in the households during the calendar year 1992. The survey covered a broad range of 17 problem categories, including 67 situations in all, and extending to concerns about the community/regional environment and problems connected with small businesses. About half of the households surveyed reported experiencing one or more legal issues during 1992. The most common problems experienced related to housing, real property, personal finance and consumer issues.
Dale (2000) reports on a legal needs survey conducted in Oregon, which used similar questions to the ABA (1994) survey. The study surveyed individuals from 1011 low- and moderate-income households.5 Quota sampling was used to ensure that different sub-sections of the population living near the poverty level were adequately represented. Dale (2000) assessed the incidence of 19 categories of legal needs, comprising 97 different situations.6 The incidence of legal needs in the 12 months prior to the survey varied considerably by category type, with the following incidence rates being reported for each category: housing (32%), all discrimination (32%), public services (31%), family (27%), employment (27%), consumer (25%), health (21%), torts and insurance (20%), public benefits (19%), wills and estates (18%), immigration (10%), farm worker statutes (10%), utilities (9%), education (8%), elder abuse (7%), discrimination (5%), taxes (5%), institutional (5%) and Native American (4%).
More recently Schulman et al. (2003) report on a survey conducted in Massachusetts, which was also modelled on the ABA (1994) survey. The Schulman et al. survey assessed the legal needs of a representative state-wide sample of people eligible for legal aid. It involved telephone interviews with people from 1800 low-income households that were automatically eligible for legal aid and 200 other low-income households that were eligible for legal aid under certain circumstances.7 The survey examined a broad range of civil legal needs experienced by the households in the previous 12 months, assessing 104 specific situations which were collapsed into 30 categories and then further collapsed into 14 categories.8 The study found that, among households that were automatically eligible for legal aid, two in three reported some type of legal need during the previous 12 months, with the average number of legal needs per household being 2.4. The most frequently reported categories of legal problem were housing (26% of all legal problems), health (12%), municipal (12%), consumer (11%), public benefits (10%), employment (9%) and family (6%).
Another recent legal needs study drawing on the ABA (1994) survey was conducted in Washington state by the Task Force (2003). The study involved both a field survey of 1333 low-income households and a telephone survey of 810 low- and moderate-income households.9 While the telephone survey used random sampling, the field survey used quota sampling to survey 15 demographic groups that can be difficult to reach through telephone surveys, such as the homeless, people with a mental or physical disability, domestic abuse survivors, migrants and Native Americans. These demographic groups were identified for in-depth study because it was thought that they may have unique legal and access to justice problems based on their status or identity.
The first section of the field survey used by the Task Force (2003) measured the incidence of 56 different civil legal needs, while a supplementary section obtained in-depth information about the civil legal needs reported, such as actions taken, obstacles faced in accessing the justice system and the effectiveness of outcomes. The telephone survey also measured the incidence of civil legal needs, using virtually identical questions to those used in the field survey, but did not ask the supplementary questions. The field survey found that approximately 87 per cent of low-income households experienced one or more civil legal problems in the previous 12 months, while the corresponding proportion for the telephone survey was around three-quarters. The 56 different legal issues were grouped into 17 legal problem areas, and both the field and telephone surveys found that the most prevalent problem areas related to housing, family, consumer and employment issues (Task Force 2003).
United Kingdom surveys
In England and Wales, the NCC (1995) conducted a random sample survey of 8358 members of the general public aged 16 years or over. It examined the incidence of ‘serious disputes’ involving 13 types of civil problems during the previous three years, as well the use of legal and other services to resolve these disputes and the outcomes of these disputes.10 The NCC study estimated that 13 per cent of the population had suffered a serious dispute in the previous three years in relation to one or more of the 13 types of civil problems, with the most common disputes reported concerning damage to vehicles (18%), divorce (10%), personal injury (10%), unpaid debts (9%) and faulty goods (8%). However, as Genn (1999) notes, the relatively low incidence is likely to reflect the restriction of the inquiry to serious disputes. As a result of the survey’s narrow focus, no information was obtained on more common civil legal problems.
Among the most important of the recent survey studies on legal needs is Genn’s (1999) study conducted in England and Wales, and the parallel study conducted in Scotland (Genn & Paterson 2001). These studies involved
face-to-face screening surveys of random samples of the general population of adults aged 18 years or over (4125 adults in England and Wales, and 2684 adults in Scotland). Using a 5.5 year reference period, the screening surveys measured the incidence of justiciable events as defined earlier.11 Thirteen categories of justiciable events were examined, covering 60 different events.12 Follow-up face-to-face interviews were then conducted with the adults who reported a justiciable event in the screening surveys that they deemed to be ‘non-trivial’, that is, important enough to warrant some form of action. For all non-trivial justiciable events, the follow-up surveys collected details about any advice or assistance obtained, including the use and experience of legal processes, the objectives for taking action, and the outcomes achieved.
Genn (1999) found that about 40 per cent of screened respondents in England and Wales experienced one or more non-trivial justiciable events in the 5.5 year period. As would be expected, this rate was higher than the 13 per cent reported in the NCC (1995) study, which had a narrow focus (on serious disputes) and used a shorter reference period (three years). Genn (1999) also found that the incidence rates varied for the 13 categories of justiciable events examined: faulty goods and services (11%), money (9%), injuries/work-related health problems (8%), owning residential property (8%), living in rented accommodation (7%), employment (6%), relationships and family matters (6%), divorce (4%), children (3%), negligent medical treatment (2%), unfair treatment by police (1%), discrimination (1%) and immigration/nationality (under 1%).
Genn and Paterson (2001) reported that 26 per cent of the Scottish sample reported one or more justiciable events in the 5.5 year reference period. This incidence rate is lower than the 40 per cent reported by Genn (1999) in England and Wales, but still higher than the 13 per cent reported by the more narrowly focused study by the NCC (1995) in England and Wales. The different incidence rates for the linked studies led by Genn cannot be explained by different definitions of legal needs or different reference periods. One possible explanation is a real difference between the populations in their experience of justiciable events, resulting for example, from differences in demographic characteristics or life circumstances (Pleasence et al. 2004b). Another possible explanation is a difference between populations in their rates of reporting events, due for example, to different attitudes about what constitutes a non-trivial event (Genn & Paterson 2001).
Building on the methodology of Genn (1999) and Genn and Paterson (2001), Pleasence et al. (2004b) report on the first national periodic survey conducted by the Legal Services Research Centre (LSRC) in the United Kingdom. This survey adopts the same approach to identifying justiciable, non-trivial problems via a screening face-to-face interview and then following up any such events reported via a second face-to-face interview. However, the LSRC survey shifted the balance of questions away from rare events (such as the use of formal legal process) towards early stage decision making, and reduced the reference period from 5.5 to 3.5 years. The screening survey involved interviews with 5611 adults aged 18 years or over from a random selection of 3348 residential households in England and Wales, and measured 18 justiciable problem categories consisting of 78 different events.
The reported incidence of justiciable, non-trivial problems in the LSRC survey was 36 per cent, similar to Genn’s (1999) 40 per cent. Again, the incidence of different types of problems varied greatly, with consumer problems being reported by 13 per cent of respondents, but some other problems being reported by under 1 per cent of respondents (unfair treatment by police, homelessness, mental health and immigration). The incidence rates for the other problem types were: neighbours (8%), money and debt (8%), employment (6%), personal injury (4%), rented housing (4%), owned housing (2%), welfare benefits (2%), relationship breakdown (2%), divorce (2%), children (2%), clinical negligence (2%), domestic violence (2%) and discrimination (1%).
The lower reporting rates for the United Kingdom studies (e.g. Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b) than for the United States studies (e.g. ABA 1994; Schulman et al. 2003; Task Force 2003) cannot be due to the reference periods used because the United Kingdom studies used longer, not shorter, reference periods. However, a number of other methodological differences between surveys may have contributed to the different incidence rates. Firstly, some of the United States studies (e.g. ABA 1994; Schulman et al. 2003) included a broader range of problem categories than did the United Kingdom studies. Secondly, the United States studies measured problems faced by any person within a household, as opposed to problems faced only by the individual surveyed (Genn 1999; Pleasence et al. 2004b). A third possibility is that the United States studies were based on disadvantaged rather than general population samples.
New Zealand surveys
Maxwell et al. (1999) reported on a national survey conducted in New Zealand in 1997 by the Legal Services Board. Random probability sampling of the general population aged 15 years or over resulted in 5431 people being interviewed. Respondents were asked how often they had experienced 27 different legal problems, over the last three years, and over the last year. They were also asked how they resolved these problems, the barriers to resolution, and their degree of satisfaction with the outcome. This information was subsequently used to model needs profiles for individual districts. The study found that 51 per cent of the sample reported experiencing problems in the previous three years, with 41 per cent of the sample reporting problems in the previous year. Over half of those who reported experiencing a problem over the three years reported more than one problem. The most common problems related to consumer issues (15%), traffic accidents (11%), money owed to the respondent (7%) and disagreements with neighbours (7%). Pleasence et al. (2004b) argue that the higher incidence rate in the New Zealand study compared to their study is likely to be partly due to the broader range of problems included in the New Zealand study. Unlike the Pleasence et al. study, the New Zealand study included problems related to crime, violence, wills and disagreements with public bodies.
In Australia, only a few relatively large-scale surveys of legal needs have been conducted, and a broadly focused large-scale survey has not been conducted in recent years. The first major legal needs survey was conducted by Cass and Sackville (1975) among disadvantaged communities. The study involved face-to-face interviews with 548 individuals aged 18 years or over in three Sydney LGAs (South Sydney, Botany, and Fairfield), which were identified by census data as areas with a high incidence of poverty indicators.13 The respondents were asked questions concerning 24 situations where legal assistance may have been beneficial. These situations were divided into six problem categories. It was found that 69 per cent of the sample reported experiencing at least one problem situation in the previous five years, with the incidence rates varying considerably for the six problem categories examined: accommodation (44%), accident (35%), consumer (21%), police (13%), money (12%) and family (9%). The overall incidence rate over a five-year period is considerably higher than the incidence rates reported a few decades later in the United Kingdom using similar reference periods (Genn 1999; Genn & Paterson 2001; Pleasence et al. 2004b). The difference cannot be attributed to the different range of problems covered because the United Kingdom studies covered broader ranges of problems. In part, the difference may be due to the more disadvantaged nature of the Cass and Sackville sample, although jurisdictional differences and time differences may also have contributed to the different incidence rates.
Fishwick (1992) reports on a legal needs survey conducted by the Australian Bureau of Statistics (ABS) in association with the Legal Aid Commission of NSW as an adjunct to the October 1990 ABS Labour Force Survey. The legal needs survey was based on a representative sample of the NSW population, resulting in interviews with approximately half a per cent of the NSW population aged 15 years or over.14 However, the survey had a relatively narrow focus, asking respondents whether they had experienced a relatively small number of predefined legal events (11) in the previous year. Fishwick (1992) reported that the majority of people surveyed (81%) had not experienced a legal event in the previous year. The most common event experienced was conveyancing followed by wills, damage and accidents. The relatively low incidence rate is likely to be due in part to the narrow range of legal events examined.
Rush (1996, 1999) conducted a series of studies for the Australian Government Attorney-General’s Legal Aid Branch. Part of this research involved a national telephone survey of the legal assistance needs of 2229 adults from low-income households using quota sampling.15 The survey assessed whether respondents were aware of the existence of legal assistance, their access to such assistance when needed, and the result of attempts to access such assistance. However, the survey had a narrow focus on legal needs for matters arising under Commonwealth law and did not examine legal needs for matters arising under state/territory law.16
Rush (1999) reported that 23 per cent of the low-income people surveyed experienced a need for legal assistance in relation to a Commonwealth matter over the past two to three years. This incidence rate is appreciably lower than Cass and Sackville’s (1975) incidence of 69 per cent over five years, but similar to Fishwick’s (1992) incidence of 19 per cent over one year. Compared with the Cass and Sackville study, the studies reported by both Fishwick and Rush covered a narrower range of legal issues. It should also be remembered that the three studies surveyed different populations. Cass and Sackville surveyed people from disadvantaged areas in Sydney, the study reported by Fishwick surveyed a general NSW sample and Rush surveyed an Australia-wide low-income sample.
In developing the survey reported on in the present monograph, a pilot version of the survey was conducted in 2002 in the Bega Valley LGA. The results of the pilot have been published (LJF 2003). The Bega Valley was in part selected for study because it had a relatively high score on an index of disadvantage (LJF 2003). The pilot survey drew a sample of 306 residents from randomly generated telephone numbers and assessed the incidence of 84 different legal events, which were categorised into 17 legal event groups. The pilot study found that about two-thirds of the respondents reported experiencing one or more legal events in the 12 months prior to the survey.
Incidence of multiple legal events
A reliable finding of large-scale survey studies of legal need is that legal events are not experienced randomly or in equal numbers across individuals. A significant proportion of individuals actually experience numerous legal events. Pleasence et al. (2004b) argue that experiencing justiciable problems has an additive effect, whereby the experience of justiciable problems itself increases the vulnerability to experiencing more such problems.
Another finding emerging from the more recent survey studies is that certain types of legal events tend to co-occur. Pleasence et al. (2004b), using hierarchical cluster and factor analysis, identified four main clusters of events: a family cluster (comprising domestic violence, divorce, relationship breakdown, children problems); a homelessness cluster (comprising rented housing, homelessness, unfair treatment by police, formal action against the respondent); a health and welfare cluster (comprising clinical negligence, mental health, immigration, welfare benefits); and an economic cluster (comprising consumer problems, money/debt, neighbours and employment problems).
Genn (1999) also found that family type problems tended to co-occur, and that some types of economic problems tended to co-occur. She reports associations among divorce, family matters and children problems. She also reports correlations between the following pairs of economic problems: money and employment, money and rented accommodation, consumer and owning property, and employment and owning property.
Pleasence et al. (2004b) argue that a number of factors are likely to contribute to the co-occurrence of particular types of legal events. For example, some legal events may act as triggers for other events, some types of legal events may arise from similar circumstances and some individuals may be vulnerable to experiencing more than one type of legal event.
Factors related to the incidence of legal events
As already noted above, some types of legal events tend to be experienced more frequently than others. A number of the more recent survey studies in the United States, United Kingdom and New Zealand (ABA 1994; Genn 1999; Genn & Paterson 2001; Maxwell et al. 1999; Pleasence et al. 2004b; Task Force 2003) found consumer problems to be amongst the most frequently experienced problems and immigration problems to be amongst the least frequently experienced. To some extent, the frequencies of different types of events reflect variations in the circumstances required for different types of events to occur (Pleasence et al. 2004b). The relatively high frequency of consumer problems is not surprising given that these problems arise from transactions involving goods and services, and such transactions are routine occurrences for most people. Similarly, the relatively low frequency of immigration problems is not surprising given that most individuals do not change their country of abode or their resident/citizen status.
There is also mounting empirical evidence showing that the experience of legal events is related to a range of social and demographic factors, including age, gender, disability, ethnicity and economic indicators. Some of these relationships suggest that socially or economically disadvantaged groups are particularly prone to experiencing legal events and have a high level of legal need.
Age has been reliably related to the incidence of legal events in a number of countries, including Australia (Fishwick 1992; LJF 2003), the United States (Dale 2000; Schulman et al. 2003) and the United Kingdom (Genn 1999; Pleasence et al. 2004b). Typically, younger people (e.g. in their 20s, 30s or 40s) are found to have higher reporting rates than older people (e.g. over 65 years).
Although gender has not been reliably related to the overall incidence of legal events (e.g. Genn 1999; Genn & Paterson 2001; LJF 2003; Maxwell et al. 1999; NCC 1995; Pleasence et al. 2004b), gender differences have sometimes been found in the incidence of certain types of legal events. For example, Pleasence et al. (2004b) found higher rates of family and clinical negligence problems for females, and higher rates of unfair treatment by police for males. Fishwick (1992) reported that men were more likely to experience legal events relating to accidents and insurance, while women were more likely to experience family-related problems and disputes concerning housing, loans and government departments. The Task Force (2003) reported that women from low- and moderate-income households experience a disproportionate percentage of legal problems, especially on matters related to family law and domestic violence.
In terms of disability, Pleasence et al. (2004b) found higher reporting rates for persons in their general national sample who had a long-standing illness or disability. Dale (2000) found higher reporting rates for people who had a mental disability. The Task Force (2003) found that people with physical disabilities had relatively high rates of legal issues related to consumer, health, estates and trusts matters, while people with mental disabilities had relatively high rates of housing issues and issues related to municipal and public services. The LJF (2003) pilot study also found that people with a chronic illness or disability were relatively more likely than others to report legal events.
Relationships between ethnicity and the incidence of legal events have been reported in a few instances. In Australia, Fishwick (1992) reported that people of English speaking background were more likely than others to experience legal events, while Cass and Sackville (1975) found that Australian-born respondents were more likely than migrants to report multiple legal problems. However, in New Zealand, Maxwell et al. (1999) reported that Maoris had an increased incidence of legal problems compared with other ethnic groups. Although Pleasence et al. (2004b) did not find that the overall incidence of legal events was related to ethnicity, they did find that ethnicity predicted three of the 18 problem types that they examined, namely divorce, discrimination and immigration. The Task Force (2003) found that African Americans had higher than average rates of legal issues related to municipal and public services.
Although past research has reliably shown a relationship between economic indicators and the incidence of legal needs, the relationship appears to be complex and is not always in the same direction. In some studies, economic hardship is related to higher overall rates of legal events. For example, the first national LSRC survey in the United Kingdom found higher reporting rates for unemployed persons, persons on a very low income, lone parents and persons in rented or high-density housing (Buck, Pleasence, Balmer, O’Grady & Genn 2004; Pleasence et al. 2004b). Similarly, in the United States, Dale (2000) found a higher incidence of legal problems for homeless people, including problems with public services, housing, employment, family law, torts and insurance, public benefits, and disability-based discrimination.
In contrast, other studies have found that those with higher incomes or higher levels of education have higher overall incidence rates or have higher incidence rates for some types of legal issues (ABA 1994; Fishwick 1992; LJF 2003; Maxwell et al. 1999; Pleasence et al. 2004b; Task Force 2003). For example, the data from Maxwell et al. (1999) in New Zealand show that individuals with higher educational qualifications were more likely to report legal problems in a wide number of areas.17 Furthermore, although Pleasence et al. (2004b) found the highest overall incidence for those on the lowest incomes, they also found that people on very high incomes tended to have high reporting rates for particular types of problems, such as consumer problems, investment problems, owned housing problems and problems with builders and holidays. The Task Force (2003) found that low-income households were more likely to experience family and housing problems, while moderate-income households were more likely to experience problems related to employment and to estates and trusts.
Pleasence et al. (2004b) argue that, despite their findings for high-income earners, their results from the first national LSRC survey of the general population in the United Kingdom generally support the notion that socially excluded or disadvantaged groups are particularly vulnerable to experiencing legal events.
In addition to reporting on the large-scale LSRC survey of the general population in the United Kingdom, Pleasence et al. (2004b) also report on a ‘parallel’, smaller survey of 197 adults living in temporary accommodation in the United Kingdom. The temporary accommodation sample was considerably more disadvantaged than the general population sample on a number of socioeconomic indicators, having a higher rate of lone parents (30% versus 4%), a lower rate of employment (25% versus 60%) and a lower median income (£6000 versus £20 000 per annum). The conduct of this parallel temporary accommodation survey provides a unique opportunity to compare a disadvantaged sample against a general population sample using comparable measurement of legal needs in the same jurisdiction at the same point in time. Pleasence et al. (2004b) found that the temporary accommodation survey resulted in a much higher incidence rate than the general population survey (84% versus 36%), supporting the argument that disadvantaged groups are particularly vulnerable to experiencing legal events.