“The pandemic’s uneven impact is a grim reminder of the deep inequality in our society that affects every aspect of life.”
The pandemic is creating new and urgent legal need, as well as amplifying the existing challenges faced by individuals experiencing social welfare law problems. Law Centres in England and Wales have seen a surge in the number of people needing legal advice.
Both access to legal aid and access legal advice are central to ensuring access to justice. ‘Access to justice for all’ is one aspect of the Global UN 2030 Agenda for Sustainable Development (Goal 16). While the UK signed up in 2015 along with other nations, to help achieve the Sustainable Development Goals, in reality unmet legal need persists.
Who are ‘the Vulnerable Legal Subjects’ under Austerity?
Unmet legal need continues to be disproportionately experienced by the most vulnerable individuals and social groups in society. At root, everyone is vulnerable and has the potential to need help at one time or another. So says Martha Fineman whose vulnerability theory is centred on vulnerability being inherent in the human condition. She has developed the notion of ‘the vulnerable legal subject’, to reimagine the relationship between individuals and the state.
This reimagination debunks the liberal idea that citizens are by default autonomous and self-sufficient individuals whose needs for support can be met informally or through supposedly private structures like the family. Rather, it recognises that every citizen, to fluctuating extents, experiences need for support at various points during their life. And it is the responsibility of the state to support its citizens through its various institutions.
Although the premise of the vulnerable legal subject is that we are all owed a baseline level of security in the form of resources from state institutions, the reality is that these institutions have been depleted under austerity in the UK. Between 2010 and 2019 more than £30 billion in spending reductions have been made to welfare payments, housing subsidies and social services under austerity. People have been left needing help with such problems as, for example, if they believe they have wrongly been found illegible for state support.
When people need help on such welfare-related topics, they go to the advice sector. This is the way that vulnerability is mitigated; a key means for the state to support citizens at a time of need.
Advice Sector as a Lifeline for Social Welfare Law
But the advice sector has also faced cuts under austerity as the UK government cut £751m from the £2.2 billion legal aid fund through the Legal Aid Sentencing and Punishment of Offenders Act 2012. Large areas of social welfare law have been removed from legal aid. These included most cases involving housing problems, immigration and challenges to welfare benefit payments.
To understand the impact this has had, the year before the reforms, 91,000 people received legal advice for welfare benefits cases but, in the following year, legal advice fell by 99% to just 478 people. At the same time, less people qualify for legal aid: once over 80% of the population were eligible, now less than a third of the population qualify for civil justice support.
Such change has put the advice sector under strain; the advice sector is also vulnerable. The number of third sector legal aid providers has more than halved since 2013, creating advice deserts as, for example, there is now only one firm providing legally-aided welfare benefit work across the whole country of Wales.
New and Existing Legal Need: Impact of the Pandemic on the Legal Advice Sector
Even before the pandemic, the advice sector has been caught between the economic constraints of their own cuts, and an increasing number of people in need of their support due to the wider impacts of austerity in society. The health risks, economic aftershocks, and disruption of our outward-facing lives that came with COVID-19, therefore, might be understood as a perfect storm for this sector, as well as for the client groups that rely on these services.
Through documentary analysis, our research draws upon emerging data from the Law Centres Network, the series of Legal and Advice Sector Roundtables organised by LawWorks, the rapidly-organised review into the impact of COVID-19 on the Civil Justice System, as well as three case studies from Law Centres in England and Wales working at the coalface during this crisis. Taken together, our research indicates that the advice sector is facing the challenge of responding to two significant and distinct client groups as a result of the pandemic: new and existing legal need.
‘New’ need can broadly be understood as those clients who, as a result of the pandemic, are finding themselves in need of legal advice and support for the first time – this is indicated by a 67% increase in employment queries, and a staggering 551% increase in people starting to claim Universal Credit. These clients are termed ‘LOLAs’ – people living outside of legal aid – who are not in a position to afford a lawyer yet fall outside of the strict means tests that determine eligibility for legal aid.
Even if some LOLAs might be able to scrape together enough to pay privately for legal advice, this is disproportionately likely to push these clients into poverty, and thus into a precarious situation where they are more likely to need to rely on the services of the advice sector. This enormous, pandemic-induced increase in demand for support is by no means temporary – in fact, the true impacts of financial volatility, job security, family stability, and the impending tapering of government measures such as the furlough scheme, are yet to come. The magnitude of this ‘new’ need is likely to only become apparent in the long-term, and this raises important concerns about the sustainability of our already-strained advice sector.
At the same time, it is imperative not to lose sight of ‘existing’ need. Traditional client groups, who have historically relied upon the sector for advice and support, are not necessarily those with the resources to actively seek help. Services are concerned that they have lost contact with those who they have traditionally reached through face-to-face services, and those who are not engaging with services over the phone. In particular, organisations have noted that they are dealing with more enquiries from clients with good English skills, who are able to make use of online information and to access services virtually. Those traditional client groups are ‘disappearing’ from view, and there is deep concern about how services may reach them if they are overwhelmed with pandemic-induced ‘new’ need, with no space or stability to invest in targeted outreach strategies.
Is Technology the Answer to Addressing the ‘Justice Gap’?
Our ongoing research is demonstrating that the need to adapt is one common theme raised by those managing and working in law centres in England and Wales.
One core aspect of adapting to physical distancing measures, has been the need to employ technology to enable service provision when law centres have been closed to the public. Organisations have invested in developing shared systems and platforms to provide a single point of access for clients, ease the process of referring clients between services, and sharing resources and methods for working remotely.
Technology has also been employed for training staff and volunteers, facilitating staff meetings, making referrals, representing clients at tribunals online and for outreach. Law centres have been innovative in utilising social media platforms coupled with traditional methods, such as paper leaflets, to advertise their services to new clients and also in an attempt to reconnect with disappearing clients.
Lessons can be learned from other jurisdictions that have been utilising technology in the advice sector pre-COVID. For example, in Australia technology has been used as an information tool and it plays an important role by helping those who are already well placed to benefit from online guides, remote advice and AI systems such as chatbots.
In the UK there is a ‘Free Legal Answers’ website being piloted based on a model from the US, and also a portal called ‘Justice Connect’ which aims to connect and co-ordinate organisations offering pro bono services, following a successful pilot in Australia.
Other technological advancements such as FLOWS and CourtNav, demonstrate valuable potential in helping to direct survivors of domestic violence towards legal services if they qualify for legal aid. The Law Works, legal and advice sector roundtables suggested that similar innovations may be extremely useful for easing some of the current demand for free advice, such as AdviceNow online guides for those that are digitally literate. This may ease demand on services and enable staff to devote more time to providing targeted assistance to traditional sector clients.
In light of the pandemic, organisations have identified that there will be a much bigger role for technology in the delivery of their services now during the pandemic and in moving forward.
We argue however, that rather than conceptualising technology as a replacement for legal aid and advice services in England and Wales, more research is required to examine what role technological innovation can play in targeting advice and support at the different population groups who form the client base.
Policymakers need to move away from making assumptions that all users will have access to technology or that technology is a more efficient means of advice. Such assumptions do not take into account the ‘digital divide’ that exists, nor the diversity in relation to digital literacy skills and the variety of specific challenges faced by clients with disabilities, those from culturally and/or linguistically diverse backgrounds, older people and others.
Technology, if relied upon as the sole means of communicating advice, is likely to further widen the ‘justice gap’ and perpetuate inequalities.
The COVID-19 pandemic has shone a direct light onto many significant questions relating to how the advice sector may continue to support communities in the long-term, especially as legal needs are likely to remain high for quite some time.
Globally, bodies such as UNODC have proposed that the COVID-19 context provides an opportunity for legal systems to examine ways they can become ‘more efficient and agile.’ Calls have been made internationally for such changes to be part of a long-term vision that extends well-beyond the crisis period. However, we argued that this is challenging for the advice sector, without sufficient resourcing it faces many challenges on a day-to-day basis. Austerity measures and their legacies such as tenuous funding arrangements coupled with increasing demand for free advice, leave the advice sector in an even more precarious position than before the pandemic.
Technology may be an extremely useful tool for the sector in adapting to the increased and varied levels of need that now exist, but we argue that in considering the utility of these adaptations, we must be conscious of the risk that technology-based solutions may be co-opted as potential replacements for the struggling advice sector.
Recognising this risk, we suggest that a more productive approach would be a commitment to implementing digital solutions in a ‘bottom-up’ manner, which draws upon the expertise of the advice-sector. These services are most familiar with the client groups comprising the diverse range of ‘new’ and ‘existing’ legal needs they are now responding to and can best suggest innovation which is properly targeted at the unmet needs of both LOLAs and their traditional client groups.
Importantly, we make these suggestions with the ultimate caveat that such innovation will only be possible and effective if the future of advice services is secure and properly resourced, and there is a shift away from the neoliberal funding arrangements which currently characterise this sector, which are simply unsustainable in a post-COVID landscape.
Dr Faith Gordon is a Senior Lecturer in Law at the ANU College of Law, The Australian National University, Director of the International Youth Justice Network and an Associate Research Fellow at the Information Law and Policy Centre, IALS. Faith’s research focuses on access to justice, children’s justice, children’s rights, older victims, media, and emerging technologies.
Dr Jess Mant is a Lecturer in Law at the School of Law and Politics, Cardiff University and sits on the Executive Board of the Socio-Legal Studies Association. Jess’ research focuses on family law, access to justice, legal aid and issues of structural inequality. She regularly contributes to political consultations for law reform on the issues of legal aid policy, reforms to the court process, and domestic abuse.
Dr Daniel Newman is a Senior Lecturer in Law at the School of Law and Politics, Cardiff University. Dan’s research focuses on access to justice and explores the impact of austerity on the advice sector, how criminal legal aid cuts effect the lawyer-client relationship under criminal legal aid and how rural areas are damaged by reduced spending on justice.