Research published today by The Joseph Rowntree Foundation estimates that: “over 1.5million people, including 365,000 children, were destitute in the UK at some point during 2017”. This blog post reflects on the findings of a parallel report: “Destitution and Paths to Justice” which was jointly commissioned by The Legal Education Foundation and The Joseph Rowntree Foundation. The report, written by a team of academics led by Professor Grainne McKeever at Ulster University, highlights the role of the law and access to legal services in creating pathways into and out of destitution.
In 2016, The Joseph Rowntree Foundation published groundbreaking research on destitution in the UK. This research, led by a team of academics at Heriot-Watt University: “explored the nature, extent and experience of living a destitute existence in one of the world’s richest economies” (McKeever et al., 2018:2). Chris Goulden, Deputy Director of Policy and Research at The Joseph Rowntree Foundation, describing the genesis of this project, states that: “…we were amid a highly charged but ultimately inconclusive debate on sanctions, welfare reform and food banks. And where estimates of destitution existed, they varied widely, tended to be sector-specific and often originated from campaign organisations that were more easily dismissed by critics as lacking rigour and impartiality. JRF decided to test the case for greater political and public scrutiny on destitution in the UK through an extensive new study to establish its extent and nature, identify its causes and understand the experiences of those who were destitute.” JRF’s research painted a picture of people already living in severe poverty being pushed into destitution by: “debt repayments (usually to public authorities); benefit delays and sanctions; high living costs; and, for some migrants, extremely low levels of benefits and lack of access to the UK labour market” (Fitzpatrick et al. 2016:1). The Legal Education Foundation’s Chief Executive, Matthew Smerdon, attended the launch of this research. On hearing the findings, he reflected that: “…many of the events that triggered the downward slide into destitution were actually justiciable problems.” As such, TLEF was interested in understanding the role that access to the law, legal education and legal services might play, both in helping individuals to escape destitution and in preventing them from becoming destitute in the first place. In early 2017, The Legal Education Foundation and JRF joined forces to commission a piece of research exploring the role of the law and access to legal services in creating pathways into and out of destitution.
On reading “Destitution and Paths to Justice” a number of themes emerge. The first of these relates to the fragmented nature of both the extant law in relation to destitution and the landscape of legal services available to respond to individuals who find themselves destitute. The researchers describe a body of law in relation to destitution that is incomplete and disjointed: the constituent elements of a legal definition can be derived from a variety of sources, including the Immigration and Asylum Act 1999, human rights law, housing legislation, social security legislation and case law (McKeever et al. 2018:19-22), but what emerges lacks the coherence and normative force of the definition proposed by Fitzpatrick et al. (2016, 2018). Equally fragmentary is the landscape of services available to support individuals who are destitute or at risk of becoming so- this has devastating consequences. The report states that: “Interviewees reported difficulties in getting access to advice organisations, which had limited capacity both in terms of being able to provide appointments or support and in relation to the range of legal problems that interviewees experienced. Access was also limited by geographic and economic isolation as well as digital exclusion” (McKeever et al, 2018:10). The experience of Jennifer, presented at Chapter 5 of the report demonstrates this- the researchers argue that: “Jennifer has, from a legal problem-solving perspective…in many ways done all the right things, engaging advice from multiple sources and attempting to address a range of financial and administrative justice issues”. Her efforts were, however, “undermined by the sheer number of problems, the fragmented natures of the advice landscape and her own inability to cope due to her health, disabilities and family circumstances” (McKeever et al. 2018:79). In describing Jennifer’s experience of advice seeking, the report highlights the impact of partial and limited funding for legal advice services- the researchers report that: “one advice provider was exclusively concerned with water arrears, the second only provided assistance with rent arrears, and was only available to Jennifer because of her husbands military service, the third seems to have a wider focus in terms of the debts on which he could advise, but could only help residents of a defined geographical area” (McKeever et al. 2018:83). As such, the report indicates the need for funders of advice services to consider core or holistic financing models, in order to ensure that the most vulnerable clients are able to secure the assistance they need, when they need it.
The second theme, which builds on the analysis underpinning the first, is the need to deliver services differently to meet the needs of those who are most vulnerable. In order to resolve the issues faced by those with multiple and complex legal problems in a timely and cost-effective way, services must be delivered in a proactive, supportive and holistic manner. Service providers must be encouraged to be inquisitive and dig beneath the issues that clients present with. For those who are destitute or otherwise in crisis, the utility of legal information, self-help materials, signposting and even unbundled legal assistance is questionable. The report asserts that individuals experiencing destitution are so focussed on immediate survival that their ability to strategise and problem-solve is undermined. The authors argue that: “the barriers that everyone faces in enforcing their legal rights are exacerbated by the immediate need to focus on the consequences rather than the causes of the problem” (McKeever et al, 2018:10). As such, the failure to equip advice services to support clients who are overwhelmed, emotionally fatigued or lacking in legal capacity compounds the problems facing individuals who are destitute (McKeever et al, 2018:10). The report underlines the findings of successive surveys of legal need that have indicated widespread issues with legal problem characterisation- people fail to identify when a problem they are experiencing admits of a legal solution, and therefore do not seek help when it might benefit them to do so. As such, this report strengthens arguments for co-locating legal services in those sites where individuals in distress may present, for example, within primary care health services, or at food banks.
The third theme concerns the pressing need to deliver effective legal education interventions to those who provide non-legal services to individuals experiencing or at risk of destitution, particularly those agencies involved in social security administration. The researchers argue that: “the various agencies involved in social security administration [are] those best placed to appreciate that a person is at risk of destitution… A little more flexibility and curiosity from those same agencies could have eased some of the crucial social security problems” (McKeever et al. 2018:91). Rebecca’s experience, (presented in Chapter 5) further illustrates this point, the researchers argue that: “faced with social security problems which expert advice might have gone a long way to resolving, the system had failed to alert her to the fact that there might be a legal solution, or this message had not been understood” (McKeever et al. 2018:79). The report is silent on the factors driving what the authors characterise as “lack of curiosity” on the part of agencies, and as such further research is needed to understand what type of intervention might work best. A further troubling point raised by the report concerns perceptions around the availability of legal aid, the researchers state that: “there was very limited evidence of legal aid being used to finance legal resolution, and a worrying perception among interviewees that legal aid no longer existed” (McKeever et al. 2018:10). Whilst the scope of legal aid has changed as a result of cuts to funding introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), the government’s stated intention was always that it should still function as a safety net for those who are most in need. Evidence that it is failing to do so is troubling, this should be reviewed carefully by the team who are leading the ongoing post-legislative review of LASPO. The reports published today both identify a defined population who might be considered most in need and indicate patterns in their engagement with services. As such, the findings of this research provide the opportunity for Ministers to think creatively about the best way to ensure that legal aid reaches those who need it the most.
The author would like to thank Fiona Bawdon for her assistance in drafting this post.
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