Legal advice services should allow for the complexity of people’s social welfare problems
This month I had the pleasure of chatting with Professor Luke Clements about his book, Clustered injustice and the level green
(LAG, 2020), as part of LAG’s latest venture – the podcast series, Justice Matters
. He starts by explaining the title: ‘By focusing on the evenness of the playing field, we are distracted from the loaded nature of the contest’ (page 15). In other words, justice is not impartial, like the bowling green is not level, and if we concentrate only on the fairness of the legal process, we fail to notice that justice itself is partial, that it is actually loaded against those with disadvantage. The more problems someone has, the more they are disadvantaged.
The law tends to be viewed through a criminal lens, so people with social welfare issues don’t often know they have a legal problem, or one that can be resolved. They are much more likely to speak with their GP about their poor housing, problems at work and family issues. The doctor treats the symptoms, but the problem remains unresolved. They are also very likely to have three or more problems at once. This is what Luke refers to as clusters of problems, ‘multiple, interconnected and messy’ (page 37).
The notion of problems in clusters is not new. Professor Hazel Genn documented this in her book Paths to Justice
(Hart Publishing, 1999), as did the Low Commission
in its report, Tackling the advice deficit: a strategy for access to advice and legal support on social welfare law in England and Wales
(LAG, January 2014). It was also something I recognised in my practice as a duty housing lawyer: people would arrive with multiple problems and not all of them legal. It follows that if you lose your job, you get into arrears of rent or mortgage and then you face losing your home. This interconnectedness is explored in David Renton’s new book, Jobs and Homes: stories of the law in lockdown
(LAG, 2021), and formed much of the discussion at his book launch. David and I have worked on numerous cases together and it was a real treat to chat with him about his book at my first book launch for LAG.
Advice services in the UK tend to be fragmented and hard to navigate, whereas other countries have a more joined-up approach. In July 2018, I travelled across Ontario, Canada
, to look at legal advice projects in Toronto, Ottawa and Montreal. In February 2019, I visited projects in rural and urban Australia, including Sydney, Melbourne, Alice Springs and Darwin. I was able to do this as I secured a Winston Churchill Travelling Fellowship
to ‘travel to learn, return to inspire’.
All the projects and people interviewed had found novel ways of responding to the needs of their communities. Lawyers were very much part of the teams, along with other professionals. In Katherine, Australia, Dr Simon Quilty secured funding to trial a multi-disciplinary approach to caring for his patients. His hope was to reduce the number of local emergency admissions and resolve the underlying drivers of hospitalisation
, such as homelessness or inadequate housing. He told me: ‘We spend thousands of dollars to keep people alive with kidney transplants and dialysis but send them home to live in cramped disgusting spaces.’ Often there were 30 people to a house in 40°C heat with no air conditioning or fridge. Dr Quilty invited a lawyer on to the multi-disciplinary team. At his first meeting, the lawyer identified 15 cases where legal action (or the threat of it) could make change for the patient. In the first year of the project, the findings showed
a significant reduction in emergency hospital admissions.
This editorial may feel more like a book review for LAG – but both publications above raise issues I have been researching and discussing for many years. At the time of writing, I am in my sixth week at LAG so I can’t take any of the credit – which lies with Esther Pilger, who had the foresight and excellent judgement to publish both books. It’s a direction that LAG is very much interested in developing, though: books not just on how the law operates, but why it does, and starting those much-needed conversations about what needs to change.
Just as we have a strategic approach to public health, we must do so with legal issues. As Luke says, people don’t turn up with a neatly packaged legal issue; their problems are messy. In order to be successful, this change will involve a fundamental shift in how social welfare cases are funded and an acknowledgement of the value of having a lawyer as part of a larger team that, together, can address all the issues. Justice must be funded along with health and education. It has the potential to make lasting change.