The Legal Services Board (LSB) and The Law Society have commissioned and published a major legal needs survey for England and Wales: Legal needs of individuals in England and Wales: technical report 2019/20 (27 January 2020). The study represents one of the largest of its type, with data collected from 28,663 people, but how does it differ from previous surveys, and what does it tell us about the capabilities, pathways to resolution and outcomes for people facing legal problems? The survey is as rich with data as it is heavy with assumptions, and has some noticeably different findings from the predecessor Civil and Social Justice Surveys (CSJSs).2See, for example, Pascoe Pleasence, Nigel Balmer, Ash Patel and Catrina Denvir, Civil justice in England and Wales 2009: report of the 2006–9 English and Welsh Civil and Social Justice Survey, Legal Services Commission, 2010. There is much to unpack from this research that could have long-term implications for how regulators, policymakers and the professions respond to the ever-challenging problem of how to address legal needs.

The first thing to note about the survey is that size does matter, but so do methods. Previous legal needs surveys in England and Wales have reached randomised sample sizes of between around 3,000 and 10,000 adults; the great achievement of this survey is to have engaged 28,663 individuals – drawn from a YouGov panel of over a million people. This is large enough to be a representative sample reflecting the actual breakdown of the population on key demographics of geography/region, age, gender, ethnicity and socio-economic status. The survey was undertaken using exclusively online research methods, building on the methodology of a similar but smaller and less representative survey undertaken by Ipsos MORI, published by the LSB and The Law Society in 2015.3Online survey of individuals’ handling of legal issues in England and Wales 2015, May 2016. This may account for some significant differences from the CSJS legal needs studies undertaken from 2001 to 2012, which used face-to-face interviews undertaken in respondents’ homes.

The approach developed in partnership by YouGov, the LSB and The Law Society was also informed by OECD guidance on legal needs surveys developed by Professors Pascoe Pleasence and Nigel Balmer (Legal needs surveys and access to justice, 31 May 2019). The guidance reflects on the experience of running the CSJS (which Pleasence also designed) including some of the limitations of randomised sampling. In particular, the authors concluded that it is difficult to eradicate selection bias as legal problems do not distribute randomly across populations, but disproportionally affect disadvantaged groups, often creating or exacerbating disadvantage, triggering further problems or linking to broader socio-economic problems.

So, to its credit, the survey acknowledges that digital exclusion could lead to some types of issues, such as repossessions, being underreported (Legal needs of individuals in England and Wales: technical report 2019/20, page 6). It is noticeable, though, that the framing of the survey design reflects the legitimate stakeholder interests, concerns and perspectives of the LSB and The Law Society as regulator and professional body respectively; for example, exploring whether consumers ‘shop around’, and the emphasis placed on professional and transactional legal services such as conveyancing and probate.

Turning to the substantive findings, the most important is that 64 per cent of respondents experienced a legal issue in some form in the past four years (page 146). Not only does this figure demonstrate that the incidence of legal problems in society concerns the majority of citizens, it also suggests that problem incidence may have been under-reported in other previous surveys (notwithstanding different reference periods – see below). The figure for the CSJS surveys had consistently established a baseline of around a third of the population experiencing legal problems. Thirty-two per cent of the last wave of CSJS respondents reported having experienced one or more civil justice problems over the past 18 months, broadly in line with previous findings: 33 per cent in ‘wave 1’ of the 2010–12 CSJS, 36 per cent in the 2006–09 survey, 33 per cent in the 2004 CSJS and 36 per cent in 2001 (Nigel Balmer, English and Welsh Civil and Social Justice Panel Survey: wave 2, LSC, 2013, page 9 and Pascoe Pleasence et al, Causes of action: civil law and social justice, Legal Services Commission, 2004, page 9).

Similarly, a Ministry of Justice (MoJ) research report on the Legal Problem and Resolution Survey (LPRS), published in March 2017, reviewed both past and present legal needs research finding that ‘around a third of the population experienced legal problems, with certain sub-groups more likely to experience problems than others, particularly those vulnerable to social exclusion (such as individuals on benefits, lone parents, those with a disability, those with low incomes)’ (Ramona Franklyn, Tracey Budd, Rose Verrill and Maria Willoughby, Findings from the Legal Problem and Resolution Survey, 2014–15, page 7). While the surveys have different reference periods (18 months to four years), this divergence from the CSJS baseline merits greater attention.

A challenge for this type of survey design is obtaining meaningful indicators of people’s behavioural responses and processes when faced with a legal problem. Around one in 10 respondents who experienced a legal issue did not look for any information or try to get any help at all (page 79); a further 13 per cent tried to obtain help but were unsuccessful (page 33). Seventy-three per cent of those who had a legal need with a consumer issue did not get any help from a professional adviser (page 90). Individuals with lower levels of legal confidence and perceptions that justice is ‘not accessible’ were far less likely to obtain professional help with the legal issues they faced.

Determining outcomes (both in terms of the legal outcomes of problems and the outcomes from having sought advice) is one of the most difficult metrics for legal needs surveys as it requires regular follow-up with respondents. The best that this survey is able to achieve are some proxy measures on whether respondents perceived their legal needs to have been met. Of those people who obtained professional help for a contentious legal issue, 66 per cent said they felt the outcome was fair; in contrast, for those who did not obtain any help, nearly half (47 per cent) felt that the outcome was not fair (Legal needs of individuals in England and Wales: technical report 2019/20, figure 21, page 43). Those with higher levels of education were most likely to be seeking a specific outcome (24 per cent for money/property) or for somebody to recognise their rights or meet responsibilities (25 per cent), while those with lower education levels were more likely to be unsure of what they wanted as an outcome (23 per cent compared with 13 per cent among those with a higher education) (page 19).

If I have one criticism of the survey methodology, it is that what is meant by ‘outcome’ is conceptually unclear and lacks definition. The LSB and The Law Society, though, are not alone in wrestling with this problem. At LawWorks, we too have been seeking to better understand the outcomes from legal advice, including through undertaking our own survey of a representative sample of clients who received advice from pro bono clinics in the network (LawWorks clinics network report January 2018–December 2018, June 2019). The survey, which followed up views on the outcomes and experience of getting advice at around six months, has provided us with nationally representative and statistically significant data on the impact of attending clinics and the outcomes achieved. Although our sample was tiny compared with YouGov’s, based on a total number of 35,008 clinic clients who received advice during the previous year’s (2016–17) reporting period, our group of respondents gave a robust national sample. Our key finding and learning from the project was that ‘soft outcomes’ concerning capability and wellbeing scored the most positively, for example:

As the MoJ continues to develop its Legal Support Action Plan,4Legal support: the way ahead, CP 40, February 2019. what lessons should policymakers draw? Fifty-seven per cent of those who did get professional help didn’t have to pay (page 99); given the better outcomes from those obtaining help, there is clearly an important role for free advice, whether delivered through legal aid, advice agencies or pro bono. A shocking finding, however, was that among people responding about a legal issue eligible for legal aid who had a household income of £32,000 or less, some 85 per cent did not think they were eligible (page 107), so there is clearly work for the MoJ’s proposed legal awareness campaign.

More positively, though, 92 per cent of respondents agreed that legal aid is a ‘good thing’ (page 109), and most felt it should be available for domestic violence and unfair police treatment (page 110). Despite this general endorsement, however, respondents were markedly less enthusiastic about legal aid for welfare benefits and private family matters (backed by bare majorities of 53 per cent and 52 per cent respectively). Perhaps the key takeaway for the LSB, The Law Society and their stakeholders is the legal confidence findings, which will also bolster the case for more investment in public legal education.