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Paths to justice
It was in the mid-1990s that the Nuffield Foundation began to devote some thought to how best to understand the public’s experience of legal problems and how they go about resolving them. The foundation commissioned Professor Dame Hazel Genn to carry out a research project which involved questioning a large sample group of the public in England and Wales. The research, Paths to justice, was published in 1999. In August 2013, a new research paper was published, entitled Paths to justice: a past, present and future roadmap (by Pascoe Pleasence, Nigel Balmer and Rebecca Sandefur, prepared under a grant from the Nuffield Foundation). The new research paper states that such large-scale surveys on people’s experience of problems which might have a legal solution (to use the jargon, ‘justiciable problems’) have now been carried out in at least 15 separate jurisdictions. Paths to justice (1999) and the follow-up studies Civil and social justice surveys and the Civil and social justice panel surveys, conducted by the Legal Services Research Centre (LSRC), were influential in shaping policy on legal services under the last government, but their influence has waned under the current coalition administration.
Research on justiciable problems using large-scale surveys has provided some valuable insights into the public’s experience of everyday legal problems. People tend to experience legal problems in clusters, and these problems are often associated with factors such as ill health/disability, family breakdown and job loss. For lawyers and advisers, one of the most significant research findings was that, for some types of problem, there is a high incidence of people not taking any action. For example, in Hazel Genn’s original survey, 37 per cent of people who had an accident or work-related ill health took no action. The research also identified the risk of ‘referral fatigue’, which takes place once a person is in the advice system but is not signposted to an appropriate adviser early enough.
The main drawback of the Paths to justice approach is that it tends to marginalise the experience of poor people and other disadvantaged groups. A large sample from the general population is not likely to pick up on groups such as those who are street homeless or specific groups of immigrants. Also, the research throws up findings which need more in-depth examination. In Hazel Genn’s original research, for example, only two per cent of the sample group reported problems with state benefits and pensions. LAG argues that such a disadvantaged group needs specific research into its justiciable problems and advice needs because of the severe consequences of an unresolved legal problem, such as the state’s failure to pay those people the correct benefit.
For publicly funded advice and legal services, as the latest research paper argues, the use of the findings from the survey data has shifted from informing government policy to being used to criticise it. In legal aid policy there is now, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, a very different system in which no attempt is made to deal with people’s clusters of problems by appropriate referral. The government only seems interested in assisting a person in a narrow set of circumstances, such as for the protection of a child, or when a person’s home is at immediate risk of repossession.
To a limited extent, official statistics can be helpful in demonstrating the trends in the types of cases going through the courts and tribunals system. For example, the latest figures from the Ministry of Justice, provided in Tribunals statistics quarterly (including employment tribunals and EAT): April to June 2013, show a 57 per cent increase in appeals relating to social security and child support compared with the same quarter in 2012. LAG would argue that this demonstrates the failure of the Department for Work and Pensions (DWP) in getting its decisions right at an earlier stage. Such statistics, though, can only show the cases that have made it into the legal system. They do not record the number of people who do nothing because of lack of access to legal and advice services, or other factors.
Another problem with official statistics is that the government can seek to control or omit data for political reasons. Again, there is an example from social security law which illustrates this point: the DWP report Income related benefits: estimates of take-up in 2009–10 states that, in 2009/10, between £7.52bn and £12.31bn went unclaimed in income-related benefits. This was between 16 and 23 per cent of the total and, LAG would argue, represents a large number of people with potential justiciable problems. However, there are no up-to-date figures for unclaimed benefits because the government no longer publishes them.
The LSRC was a casualty of the government’s legal aid reforms and closed in April 2013. Fortunately, its work on surveying legal needs continues through the Centre for Empirical Legal Studies at University College London. This is important, as researchers can at least provide hard evidence about the everyday legal problems people face, and thereby help to convince the government of the need to create pathways for resolving them.