This chapter aims to highlight the links between access to justice and various determinants of inclusive growth and people’s well-being. It draws together growing evidence about the costs of unmet legal needs and the benefits of meeting these needs and identifies potential future steps to strengthen the case for investing in access to justice.
Equal Access to Justice for Inclusive Growth
Putting People at the Centre
Chapter 2. Understanding the links between access to justice, inclusive growth and people’s well-being
Abstract
Inequality and access to justice
While the global economy is recovering, market insecurity and the low-income rate continue to persist in several OECD countries (OECD, 2018[1]). The OECD Policy Framework for Inclusive Growth highlights that the richest 20% earned 5 times on average the income of the poorest 20% in OECD countries in 2014 when it comes to real disposable household income (OECD, 2018[2]). Moreover, inequalities of education, health, employment and earnings, wealth and well-being compound over the course of life (OECD, 2017[3]) and in turn may negatively affect multiple children’s well-being outcomes in the short and long term (Becker and Tomes, 1979[4]; Corak, 2013[5]).
These inequalities have multiple consequences. As noted in the OECD Bridging the Gap report (2017[6]), assessing the impact of inequalities is crucial in order to take action and combat them. OECD work has documented that the impacts of inequalities span many areas. First, inequalities lower investment in human capital among the poorest 40%, jeopardising productivity growth. Second, rising inequalities put further pressure on public social budgets, often going hand in hand with larger transfers and smaller revenues. Third, high inequalities may also be hindering trust in public institutions, constraining governments’ capacity to act and weakening structural reform implementation efforts (OECD, 2017[6]).
Growing evidence establishes a complex relationship between unequal access to justice and broader socio-economic inequalities. While income inequality can be a major contributor to inequality in access to justice, unequal access to justice may perpetuate existing inequalities in other non-income outcomes, including educational attainment, health conditions and employment opportunities, which are important determinants of growth and well-being (OECD, 2015[7]). Inequality is both a driver and a consequence of lack of effective access to justice and therefore actionable policies focused on meeting people’s legal and justice needs are an important mechanism to intervene in this negative self-reinforcing dynamic. Yet we have only begun to understand and quantify the impact of unmet legal needs and the benefits of providing appropriate legal and justice services to assist in resolving these problems.
The Inclusive Growth Framework for Policy Action recognises the role of access to justice in promoting access to opportunities for all (Box 2.1), including education for life and throughout life, addressing inequalities in healthcare, redesigning tax systems and enhanced tax administration, helping people to adapt to change and stay engaged in labour markets, reducing gender gaps and preventing ageing unequally. The rule of law necessitates that laws and regulations shape access to education, health and other social benefits. Laws also support active labour market policies and fair employment conditions, including those related to, for example, gender disparities and ageing in the workplace. Thus, access to justice facilitates the fair and effective function of all of these laws, policies and programmes.
Access to justice also aims to give all businesses the chance to thrive through ensuring the fair and effective functioning of regulatory frameworks, restructuring and displacement programmes, programmes to address skill mismatch, access to finance, research and development, and equitable financial markets that channel resources into productive activities.
Box 2.1. OECD Framework for Policy Action on Inclusive Growth
The Framework for Policy Action on Inclusive Growth aims to help governments sustain and ensure a more equitable distribution of the benefits from economic growth, which is supported by a dashboard of indicators. It consolidates OECD key policy recommendations around three broad principles, as follows:
Invest in people and places that have been left behind through: i) targeted quality childcare, early education and life-long acquisition of skills; ii) effective access to quality healthcare, justice, housing, infrastructures; and iii) optimal natural resource management for sustainable growth.
As illustrated in Figures Figure 2.1 and Figure 2.2, access to justice is at the centre, radiating out into many inclusive growth policies and programmes, not because it is the outcome or end goal but because it is an integral part of facilitating the laws, policies and programmes that in turn enable growth, prosperity and individual and community well-being. Access to justice is the inescapable “AND”: health and justice, employment and justice, gender and justice, education and justice, etc.
Figure 2.1. Enabling people to create prosperity and flourish
Source: OECD (2017[8]), OECD Inclusive Growth Initiative, OECD, Paris.
Figure 2.2. Giving all businesses the chance to thrive
Source: OECD (2017[8]), OECD Inclusive Growth Initiative, OECD, Paris.
The dynamics of unmet legal needs
Shift to focus on “everyday” legal problems
The law shapes and pervades all citizens’ and businesses’ lives; rich or poor, profitable or unprofitable, from birth to after death. Today the law underlies nearly every aspect of people’s lives, including health, employment, education, housing and entrepreneurship. These sectors depend upon sound legal frameworks for their operations and legitimacy. Any problem or dispute arising within these sectors, by necessity, brings into play laws and regulations. This means that legal problems are so common that the majority of people will experience legal and justice needs routinely over the course of their lifetime (e.g. debt, neighbourhood issues). Contrary to conventional approaches that consider legal problems to be a rare and unexpected event, legal problems are ubiquitous. They flow from everyday life and are experienced by many every day. This insight has important ramifications for our understanding of why access to justice matters as well as its relationship to inclusive growth and individual and community well-being.
The most common legal problems seem to arise from circumstances routinely experienced across the population, based on stages of life and demographic vulnerability. Young people’s efforts to, for example, secure homes and employment, are associated with exposure to particular types of legal issues. As people get older, the consolidation of families, arrival of children, home ownership, increased consumption and debt are associated with vulnerability to different legal issues. And, as people enter their later years, increased need for medical treatment and care and diminishing powers of decision-making (e.g. guardianship issues) are associated with other specific types of legal vulnerability. At the same time, certain populations may experience particular legal needs based on their socio-economic situation. For example, low-income earners, women, minorities, indigenous persons, disabled people and the elderly may have additional legal needs and face extra barriers in accessing justice services.
Since the mid-1990s – with the build-up fuelled by legal aid reform (Coumarelos et al., 2012[9]), empirical research into legal needs, mostly through the implementation of large-scale surveys, shed important light on the nature of legal issues faced by different groups of individuals, patterns of related problems and needs, the wide range of disputing behaviour and pathways to justice employed by people, and the adverse impact of unresolved legal problems.1 At least 50 legal needs surveys2 were conducted in more than 30 countries and territories including: Australia, Canada, England and Wales (United Kingdom), Hong Kong (China), Japan, the Netherlands, New Zealand, Northern Ireland (UK), Scotland (UK), the Slovak Republic, Chinese Taipei, Ukraine and the United States (OECD-OSJI, 2019[10]). Over the same period, extensive sub-national surveys were also conducted in China (Michelson, 2008[11]), Indonesia (Gramatikov et al., 2014[12]), Russia3 and Yemen (Barendrecht et al., 2014[13]), along with smaller surveys in countries such as Bangladesh and Egypt (Gramatikov and Verdonschot, 2010[14]). The World Justice Project (WJP) deployed a common legal needs and dispute resolution module in major urban areas in more than 45 countries in 2017 and plans to reach more than 100 in 2018, generating the first standardised data set on legal needs and dispute resolution across countries (World Justice Project, 2018[15]). These surveys were conducted as nationally representative samples or focused on specific populations or geographies.
Legal needs surveys have now been carried out over time and across a spectrum of countries, jurisdictions and legal traditions, illuminating consistent patterns and dynamics. They provide an important evidence base for recognising and specifically addressing people’s legal and justice needs, including marginalised groups, as a central strategy for achieving socio-economic inclusion. They have contributed greatly to our understanding of the prevalence of legal problems and to the short- and long-term negative consequences of unresolved legal problems.4 These findings are summarised in Box 2.2. Of particular note is the consistent finding that people living in disadvantaged circumstances seem to be particularly prone to legal problems. Legal needs surveys across a number of OECD and partner countries show that legal problems are far from randomly distributed across the population. There is increasing (although limited) evidence that disadvantaged groups are typically those that are most vulnerable to legal problems, resulting from uneven exposure to the circumstances that can give rise to legal and social problems and/or their lower ability to avoid or mitigate problems. Wexler summarised that “the poor are always bumping into sharp legal things” (Wexler, 1973[16]).
The shift toward focusing on everyday legal problems illuminates the connection between justice and inclusive growth which can be hidden in a focus on more formal conceptions of the justice system.
Box 2.2. Lessons learned from legal needs surveys
Results of legal needs surveys (both civil and criminal) made important contributions to understanding common obstacles to accessing justice experienced by both individuals and businesses and paved the way to reforms. The survey results concerning the incidence of civil legal problems and their impact are remarkably similar across countries and time. Common findings are:
Civil legal needs arise frequently, touch upon fundamental issues and can create minor inconvenience or great personal hardship.
Civil legal problems are a “pervasive and invasive presence in the lives of many” (Ontario Civil Legal Needs Project, 2010[17]).
The disruption caused by unresolved legal problems is significant and can cause cascading problems for individuals and families.
There is an important connection between unresolved legal problems and broader issues of health, social welfare and economic well-being.
Age, country of birth, disability status, personal income and education level are statistically independent predictors of reporting legal events.
While every group experiences civil needs, the poorest and most vulnerable experience more frequent and more complex, interrelated civil legal problems.
In some studies, gender, ethnic/racialised background and Aboriginal influenced the experience of civil legal problems.
Legal problems tend to cluster, meaning that problems tend to co-occur and can be grouped together (clusters vary across jurisdictions).
Legal problems have an additive effect with every additional problem experienced, the probability of experiencing more problems increases and this is especially true for low-income earners and members of disadvantaged groups.
The justice system is poorly understood and/or perceived to be inaccessible by many and this complexity can in and of itself be seen as a barrier to access.
The vast majority of justiciable problems are resolved outside of the formal justice system.
While the findings are generic at some level, it is wrong to conclude that the experience of civil legal problems is uniform. Certain groups are more vulnerable and this vulnerability compounds the effects of unresolved legal problems and makes it more challenging for them to navigate the justice system.
Source: OECD-OSJI (2016[18]), Understanding Effective Access to Justice, Summary of Proceedings, Technical Workshop, 3-4 November 2016.
Unmet legal needs tend to reinforce disadvantage
Everyday legal problems are a reality for many people in OECD and partner countries but that does not mean that they are experienced in the same way by all. As illustrated in Australia, people living in conditions of disadvantage are particularly likely to experience legal problems (Figure 2.3) and tend to experience more difficulty in accessing the legal and justice assistance they require, notably due to financial and other barriers. Legal needs surveys provide insight into the self-reinforcing nature of disadvantage and the ways in which unmet legal needs can contribute to a cycle of decline which inhibits economic productivity and contributes to further socio-economic exclusion.
Figure 2.3. Proportion of disadvantaged Australians by number of legal problems faced, 2008
Source: Pleasence, P. et al. (2014[19]), Reshaping Legal Assistance Services: Building on the Evidence Base, Law and Justice Foundation of New South Wales.
Surveys showed that legal problems compound and are experienced in combination with other types of problems including social, economic and health issues. These different types of problems can interact in ways that have an additive or cascading negative effect. For example, social problems can lead to legal action, while legal problems, such as domestic violence, family/relationship breakdown, injury from accident, housing, employment and discrimination, may precipitate social problems (Currie, 2007[20]; Forell, McCarron and Schetzer, 2005[21]; Grunseit, Forell and McCarron, 2008[22]; Karras et al., 2006[23]; Pleasence, 2006[24]) and/or exacerbate those already in existence (Coumarelos and Wei, 2009[25]; Currie, 2007[20]; Currie, 2007[26]; Pleasence, Balmer and Buck, 2008[27]; Pleasence and Balmer, 2009[28]).5 Similarly, a medical problem can lead to a cascading number of economic, social and legal problems.
Surveys also found that many people do not recognise the legal dimensions of problems they experience nor separate out legal problems from other issues they face.6 Many do not pursue legal remedies and are unaware of legal assistance services or are otherwise unable to access these services. Although the data is limited, there can be an inverse relationship between legal need and ability to access assistance. The inability to obtain legal and justice services is often found to have a disproportionate impact on low-income earners and other disadvantaged groups (such as people with a disability, mental illness, single parents, unemployed people and people living in disadvantaged housing) precisely because of their lack of individual economic resources (Balmer, 2010[29]).7 In addition to the economic and cost barriers in accessing justice, there is a wide range of structural, institutional and capability factors that impinge upon access to justice, such as complexity, time, individual capability, geographical and physical constraints.
There are numerous potential justice pathways that can be taken when faced with legal problems, ranging from “lumping” problems (i.e. taking no action) to instituting formal legal process. Relatively few legal problems are resolved through the formal justice system even though courts and tribunals continue to play an important role in the protection and enforcement of rights. A high percentage of legal problems, somewhere between 35%-41% in some OECD and partner countries, are unresolved (Barendrecht et al., 2012[30]). In some cases, even when the problems were settled, the outcome could be perceived as unfair or the process unduly stressful. Thus, an understanding of patterns of responses to legal problems and of people and business decision-making, as well as their actual experiences in this regard, seems important in assessing levels of access to justice.
In many countries, unequal access to and discrimination in sectors such as health, employment, education, housing and entrepreneurship create real barriers to economic participation, especially for traditionally marginalised or vulnerable populations (youth, the elderly, women, refugees). Providing people access to justice enables them to tackle these inequalities and to participate in legal processes that promote inclusive growth and individual and community well-being.
Evidence derived from legal needs surveys illuminates how the inability to access legal and justice services can be both a result and a cause of poverty. People who are more vulnerable to socio-economic exclusion typically report more legal problems than other groups. Furthermore, as legal problems tend to trigger and cluster with other legal and non-legal problems, these same groups appear to experience an increased rate of non‑legal challenges as well. Yet the failure to resolve legal problems can contribute to a “cycle of decline” in which one problem leads to another with escalating individual and social costs and reinforces poverty and socio-economic exclusion (Figure 2.4).
Figure 2.4. A cycle of decline
Source: Adapted from Tyler, T. et al. (2011[31]), Poverty, Health and Law, Carolina Academic Press, Durham, North Carolina.
Towards understanding the impacts of access to justice and unmet legal needs
This section highlights the costs of unmet legal needs and the effects of people-centred legal and justice services, framed by our current understanding of the dynamics of unmet legal needs and their relationship to inclusive growth, sustainable development and individual and community well-being.
Inadequate access to justice is measured in terms of costs related to the impact of unmet legal needs including, for example, social costs, physical and mental health costs, lost productivity, reduced access to economic opportunities for individuals and businesses, and foregone education and employment opportunities. Increased access through the provision of people-centred legal and justice services could generally have three types of measurable impacts: effects on the legal and justice systems; sectoral impacts or benefits; and high-level socio-economic impacts.
The examples of costs and benefits listed in Figures Figure 2.5 and Figure 2.6 are not exhaustive and are derived from research, data and evidence that are currently available. While not depicted in the graph, it is recognised that the relationships between the elements listed are not linear and access to justice can serve as both a cause and effect of many variables (with different directions and channels of relationships). It is anticipated that over time a stronger understanding of these relationships will be established contributing both to a stronger business case and more effective legal and justice services. Costs and benefits examples are discussed in greater detail below and in the OECD White Paper on Building the Business Case for Access to Justice (forthcoming[32]).
Figure 2.5. Understanding the costs of unmet legal needs
Impact of unmet legal needs: Direct and indirect costs
There is increasing yet uneven evidence that the impacts of unmet legal needs can be costly to individuals, communities and societies at large. As highlighted at the OECD Roundtables, when legal problems relating to family, employment, discrimination, housing or other remain unresolved, they can lead to further legal and other social and health-related problems and costs. These costs can be borne both by individuals and by social and health services, income support, disability plans, employment insurance and other services. Some estimates from the United Kingdom government show that unresolved disputes and serious legal problems may cost the economy up to GBP 3.5 billion annually (GBP 1.5 billion in costs to public services and GBP 2 billion in lost income through loss of employment) (DCA, 2016[33]).
These costs reflect the consequences of a range of unmet legal needs, from unemployment, increased workplace absence, health and social consequences, which in turn put pressure on healthcare and welfare systems and public budgets. As legal and justiciable problems tend to occur in clusters (both justiciable and other social or health problems), many respondents in several legal needs studies indicated that the legal problems they experienced had contributed to or caused adverse effects in several areas of life, including consequences for physical and mental health, alcohol or drugs use, the occurrence of family violence and other areas of personal life and feelings of personal safety and security (Currie, 2007[20]). The higher the number of problems, the likelier the health and social consequences (Currie, 2007[20]).
The associated costs can be direct and indirect.8 Direct costs are the actual dollar expenditure related to leaving legal needs unaddressed (for individuals, entities and the country). They range from spending on healthcare to related services such as physicians and mental health professionals or employment insurance (which can be experienced at all levels including individual, organisational and state). For employers or the society, for example, these costs may include payments made for temporary work absences (e.g. from employer, government or social insurance), payments for inability to work (e.g. from government or social insurance), allowances for household production of healthcare (e.g. by government or social insurance) and allowances for household production of social care (e.g. by government or social insurance). Indirect costs include a wide range of costs resulting either from lost productivity of both paid work and household chores (e.g. the number of days people were unable to perform paid work) or lost opportunities (Box 2.3).
Box 2.3. Examples of indirect costs of unmet legal needs
Lost productivity from workplace absence and unemployment – People with unmet legal needs, for instance, related to health, can lose time from their regular activities due to injury or other workplace issues such as harassment, discrimination or unlawful dismissal. These groups of people may also be at greater risk of other health problems, such as chronic pain and sleep disturbances, which can interfere with or limit daily functioning (McCauley, Raveill and Antonovics, 1995[34]). Another measure that aims to capture the economic impact of unmet legal needs is the present value of lifetime earnings (PVLE), which measures the expected value of lost earnings that people with legal problems would have otherwise contributed to society had they been able to reach their life expectancies (National Center for Injury Prevention and Control, 2003[35]).
Economic costs – Unmet legal needs may generate significant negative social and health consequences, which in turn may generate economic implications, including formal labour market effects (i.e. reduced supply of labour), change in consumption rates and standards of living, production of extra health and social care, and lost household production. In parallel, inability to resolve legal problems may diminish access to economic opportunity, reinforce the poverty trap and undermine human potential, all of which can affect growth.
Business costs – Although data is limited and there is no common methodology to measure the impacts of legal (justiciable) problems, some studies show that these problems may have a negative knock-on effect for businesses. Some of the most common negative impacts include loss of income, business disruption, the incurring of additional costs, damage to business relationships, loss of reputation and damage to employee relations. In extreme cases, legal problems were said to have led to businesses ceasing trading. Problems concerning trading and intellectual property were associated with loss of income, problems concerning tax and regulation with the incurring of additional costs, while issues concerning employment were more likely than others to impact on the capacity to work.9 These areas may serve as the basis for further research.
Mental health costs – Indirect costs can arise when the increased stress and emotional strain caused by unmet legal needs have an impact on mental health (e.g. the number of visits to healthcare practitioners, lost productivity, etc.). These costs can be quantified at the individual, government and community levels. For example, a Canadian study shows that experiencing justiciable problems (such as those related to employment, including personal injury, harassment and unfair dismissal, or those related to the purchase of major consumer goods or separation and divorce) can compromise people’s feelings of security and safety (Currie, 2007[20]). There is strong evidence of the impacts of mental illness on other life outcomes and lost production. It is important to note that vulnerable groups (e.g. people with lower than high school education or low-income earners, persons with disabilities or members of minority groups) are more likely to report experiencing extreme stress or emotional health problems as a result of unresolved legal problems.
Physical health costs – Some studies point to important healthcare costs associated with unmet legal needs, as a result of service use estimates (at the levels of an individual, state and healthcare system). For example, the aforementioned Canadian study showed that among the respondents who said they experienced a physical health problem as a consequence of a legal problem, more than three‑quarters reported increased visits to doctors or healthcare facilities (Currie, 2007[20]). Employment-related problems (harassment in the workplace, workplace health and safety issues and unfair dismissal), harassment by a collection agency, family law problems (separation and divorce), and two specific personal injury problems (traffic accidents and workplace injuries) were among those most frequently affecting people’s physical health resulting in additional medical costs. Most importantly, members of minority groups and older people appeared to more likely experience health or social consequences of legal problems.10 Increase in reported drug and alcohol use (although small) was reported to be linked to justiciable problems related to employment, workplace harassment and unfair dismissal.11
Social costs – Certain unresolved legal and justiciable problems (related to family law or perceived harassment at work) experienced by parents were found to affect their children in several ways. Most of these problems are related to behaviour in the home or at school (although to a lesser degree).12 Other costs of unmet legal needs range from the continuation of domestic violence to having children live in foster care (when they cannot be kept with grandparents), to housing-related costs and children living in poverty when a family loses their home.13
Other potential costs include foregone education and employment opportunities in case of lack of access to legal and justice services.
Sources: McCauley, D., J. Raveill and J. Antonovics (1995[34]), “Local founding events as determinants of genetic structure in a planet meta-population”, Heredity, Vol. 75, pp. 630–636; National Center for Injury Prevention and Control (2003[35]), Costs of Intimate Partner Violence Against Women in the United States, Department of Health and Human Services, Centers for Disease Control and Prevention, Atlanta; Currie, A. (2007[20]), The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians, https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf.
Exploring the effects of meeting legal needs
This section highlights a number of measurable direct and indirect benefits attributable to meeting particular legal needs in particular circumstances (Figure 2.6).
Figure 2.6. Potential effects of legal and justice services
Several country studies found multiple benefits in addressing legal needs and providing access to legal assistance and access to justice programmes for individuals, families and communities. The range of legal and justice services include legal literacy initiatives, public legal education programmes, primary and secondary legal aid programmes, individual casework and initiatives to facilitate the resolution of disputes (such as alternative dispute resolution mechanisms, community paralegal initiatives, integrated approaches to deliver justice and other human and business services, legal service provided by non-legal organisation, restorative justice, specialised courts and broader court systems, see Figure 5.1). These programmes cover many public policy domains affecting socio-economic inclusion and cohesion, economic growth and more broadly, people’s well-being (e.g. immigration, community care, debt, housing, education rights and employment and welfare benefits) (NEF Consulting, 2008[36]). This section highlights the emerging evidence on the impact of different services on achieving broader policy outcomes in these areas.
Housing and prevention of homelessness
Housing disputes or evictions, foreclosures, tenancies, repairs, privacy, harassment and discrimination, issues related to utility payments and rent, vital services (heating) and lease-breaking all constitute a high proportion of legal needs in many countries. For example, according to 2016 World Justice Project data, housing disputes (related to landlord-tenant conflicts) accounted for up to 12% of the most important disputes reported and experienced by individuals in OECD and partner countries covered by the study (although with significant variance, from 2.7% in Japan to 12% in Germany). In the United States in 2013, cases related to housing constituted 27.4% of all cases funded by the Legal Services Corporation. The Ontario Legal Needs Survey identified that housing or land problems constituted about 10% of the most common legal incidences in Canada (Dylag, 2014[37]; Ontario Civil Legal Needs Project, 2009[38]; 2010[17]). The situation has been exacerbated by the recent recession and foreclosure crises across a number of countries, where many low-income tenants face eviction or substandard living conditions.14
A number of studies show that legal assistance programmes are found to contribute to improved outcomes for individuals, preventing clients from requiring emergency shelter and related healthcare and social services. This helps reduce demand for government expenditure and other social costs, such as unemployment, disrupted education for children, reduced productivity and family instability.
For example, mainly US-based research demonstrates that tenants who receive full representation in eviction cases are more likely to remain in their homes. A 2009 study found that tenants with full representation had better legal and personal outcomes than tenants who received limited or no representation (55%, 18% and 14% respectively maintained their homes) (White House Legal Aid Interagency Roundtable, 2014[39]). These results were confirmed in a number of randomised control trials. The New York City Housing Study found that warrants of eviction reduced from 44% in cases where the party had no legal representation to 24% in cases where the party received full pro bono legal representation (Serron, van Ryzin and Frankel, 2001[40]).
In addition, further studies demonstrated the benefits of increased housing retention at the community level. In 2009, the Massachusetts Legal Assistance Corporation (MLAC) helped prevent or delay evictions for 1 851 households. MLAC estimated that, of the individuals whose evictions was delayed or avoided, 25% would have required government-funded shelter services should they have lost their homes. Combined with other activities, MLAC estimated that the joint impact of these interventions saved the community more than USD 8.4 million in shelter costs (Granberry and Albelda, 2006[41]).
Evidence highlights that there are additional benefits stemming from increased housing retention at both the individual and community level, particularly for tenants with disabilities, substance abuse problems and other conditions that may be exacerbated by housing instability, although they are often difficult to quantify. Some of the key individual outcomes of housing support may include (NEF Consulting, 2008[36]):
Ability to live independently – The legal service interventions of legal services and representation can improve a person’s capacity to live alone (indicators: living in own flat, amount of rent paid) and improve personal or family security when escaping a violent partner.
Improved diet and health – Accessing allowances (disability, incapacity benefit) can lead to an improved diet (indicators: 30% of the received benefits being spent on food).
Enhanced employment prospects – Improved stability and consistent attendance in education programmes can improve the likelihood of obtaining and maintaining employment.
Improved living environment – With the indicator of one’s ability to furnish a flat, there is an increase in self- reported well-being including by reducing health risk.
At the state level, some outcomes may include:
Reduced costs of dealing with homelessness – A good financial approximation is the cost to the government of maintaining a person who would otherwise be homeless in a first stage hostel.
Improved tax revenue – The ability of an individual to become employed can help the government improve its tax revenue. The tax resulting from the work identified as one of the outcomes is used as the financial proxy for this outcome, as well as the income benefit saved.
Reducing domestic violence
There is a growing body of evidence demonstrating that providing legal services to victims of domestic violence can reduce its prevalence and the associated cost to governments.
Exploring this further, a victim’s capacity to successfully obtain a restraining order against an abusing party is important in preventing future incidents of violence and associated emotional, social and financial costs. Notably, one study found that this capacity increased from 55% to 69% when the victim was supported by a legal advocate (Elwart et al., 2006[42]). Similarly, a two-year review of the impact of Iowa Legal Aid services found that the provision of legal services improved the economic self-sufficiency, safety and psychological well-being of female victims of domestic violence (Boone, 2009[43]).
There also exists emerging evidence of economic impacts in this area. A study conducted in Wisconsin placed the estimated costs incurred by the average domestic violence victim, in terms of medical care, psychological counselling, lost earnings, police resources and the incarceration of their abusers, at USD 3 400 (Elwart et al., 2006[42]). In the United Kingdom, the estimated 2012 cost of gender-based and intimate partner violence was EUR 13.7 billion (EIGE, 2012[44]). Another study estimated that the provision of legal aid services resulted in an average saving of USD 3 630 per family (accounting for emergency medical care, shelter, counselling and education) (Abel and Vignola, 2010[45]).
Supporting socio-economic inclusion through access to social benefits
In many OECD countries, various transfer programmes aim to prevent extreme hardship and enable individual and family well-being (OECD, 2016[46]). Access to social benefits remains an important safety net for millions of people across OECD and partner countries with people more likely to be economically self-sufficient when benefits are effectively distributed. According to 2016 data from the World Justice Project, disputes relating to the provision of social benefits (including social security, unemployment, disability, child support and tax benefits) also represent a significant legal need. For example, a large share of disputes related to access to public benefits were reported as the most important out of all disputes experienced by individuals over the course of 12 months, although this varies across the countries (e.g. in Sweden [18.6%], Germany [17.4%], Australia [12.7%], the Netherlands [14.9%] and Korea [7%]). In the resolution of social benefit disputes, there is evidence that claimants who had legal representation received more favourable outcomes than those who did not (Krent and Morris, 2013[47]).
A Pennsylvania Economic Impact Report lists a number of possible benefits stemming from the provision of legal services, including the positive impact of crime prevention and reduction on families and communities, the benefits of consistent school attendance by children who may otherwise experience homelessness or domestic abuse, as well as the increased income of clients who were involved in employment-related disputes (Pennsylvania Interest on Lawyers Trust Account Board, 2012[48]).15 In addition, when legal aid programmes assist non-citizen clients to obtain work authorisation, those clients subsequently spend money and pay taxes (Immigration Policy Center, 2009[49]).
Enhanced consumer financial protection and debtor relief
One common legal problem that can trigger a cycle of decline if left unattended relates to money problems. Consumer or finance cases, that is, matters involving bankruptcy, debt collection, debtor relief, contracts, warranties, creditor harassment, loans, public utilities, deceptive sales practices, etc., represent a significant proportion of legal needs and the cases filed by legal aid. For example, in Canada, according to the Department of Justice survey consumer problems (-22.0% of all reported incidences) or debt problems (‑20.4%) were among the top 3 incidences reported to be experienced by Canadians in 2006 (Dylag, 2014[37]). The 2016 World Justice Project data also identifies business debt disputes as among the most common experienced by individuals (e.g. 9.3% in Belgium, 12.4% in Poland, 6.7% in Sweden).
There are a number of agencies charged with protecting consumers and combatting fraud through enforcement (including investigations and lawsuits). Legal aid programmes, often working in partnership with other entities, aim to educate the public on consumer protection issues, correct harm caused by consumer fraud and help consumers assert their rights (White House Legal Aid Interagency Roundtable, 2015[50]). While evaluations of these initiatives are scarce, a number of studies indicate their value to resolving consumer problems. For instance, an evaluation of legal secondary consultations provided by the Consumer Action Law Centre in Australia found their positive impact in achieving good outcomes for their clients (Consumer Action Law Centre, 2016[51]).
Access to healthcare and support for medical-legal problems
While not widespread, health-related legal needs, that is, disputes relating to health insurance, home and community-based care, private health insurance, long-term healthcare facilities, quality of care, denial of access to universal healthcare and violence in healthcare settings, among other things, represent a notable share in some countries. These legal needs often aggregate with other complex needs given that disadvantaged social groups, particularly people from low socio-economic backgrounds also tend to experience higher levels of health issues. Furthermore, legal needs research that medical problems tend to cluster with various legal problems. For example, a medical crisis can trigger employment, education or housing issues affecting both the individual and his or her family.
Some countries established medical-legal partnerships designed to improve health and life outcomes for patients (Box 5.11). There are examples of health agencies and teams working with legal aid providers “to detect, address and prevent health-harming social conditions that have their roots in legal problems” and to help secure healthcare coverage by appealing erroneous administrative denials of benefit.
A number of studies also showed that the provision of legal assistance through these medical/legal partnerships are found to generate a range benefits, including reduced healthcare debts and claims, improved prenatal behaviour and pregnancy outcomes, reduced levels of child abuse, higher maternal employment rates and overall enhanced well-being (PwC, 2009[52]). A recent study by the medical-legal partnership LegalHealth found that the provision of legal services to cancer patients resulted in reduced stress and improved compliance with treatment (Retkin, Brandfield and Bacich, 2007[53]). Similarly, a 2015 randomised control trial at Boston Medical Center incorporated medical-legal partnership services into an intervention for families of healthy new-borns receiving primary care. The study showed that low-income families assigned to the intervention group were found to have an increase in the use of preventive healthcare and had greater access to concrete support (Sege et al., 2015[54]).
Supporting child welfare and families
Family-related disputes represent a substantial proportion of legal needs in many countries. For example, in Queensland, Australia, family law matters comprise approximately 93% of cases where legal advice and representation is provided (PwC, 2009[52]). Children and families at large, especially those in low-income groups, can be exposed to a host of challenges which may involve legal issues. These challenges may relate to substance abuse, mental health conditions and domestic violence, often occurring simultaneously, which may result in children being removed from the home and placed in the child welfare system, generating suboptimal outcomes. Other challenges relate to errors in granting rights to public benefits (which may have an impact on family and hence children’s well-being), difficulties or errors in securing child support, bullying or otherwise problematic behaviour in schools and so on. For example, child custody disputes represent a relatively important ratio of significant disputes experienced by individuals, in accordance with 2016 data from the World Justice Project (3.9% in Australia, 4.1% in the Netherlands, 4.7% in Peru). Legal assistance can help families access necessary public benefits by supporting them with paperwork and dealing with erroneous denials, enforcing child support orders, explaining education laws and school discipline policies to help keep children in school and advising and representing parents of children with special needs in schools. Legal assistance can also support children’s education and well-being by addressing other legal issues affecting families, such as immigration, debt, housing or domestic violence (White House Legal Aid Interagency Roundtable, 2016[55]).
Studies have started collecting evidence of the impact of legal assistance programmes on improving child welfare. For example, a study examining the impact of a specialised Family Treatment Drug Court for families affected by drug addiction found that the court achieved better outcomes for mothers with drug addictions than other, non-specialised, courts. The study found that mothers were more likely to attend substance abuse treatment services and were two-times more likely to complete one treatment episode than those who did not enter the specialised court programme. Additional data from the study indicated that the programme influenced key child welfare variables given that mothers were more likely to be reunited with their children (Courtney and Hook, 2012[56]).
In cases related to custody disputes, one study found that providing legal representation to parents increased the likelihood that spousal support or alimony would be awarded. Another study found that when one party in a contested custody case is represented by an attorney and the other is not, it is more likely that sole custody will be awarded to the party with legal representation (Smith and Brewer, 2011[57]).
While access to education has not been reported among major legal needs in member countries, some legal problems nonetheless arise in this area, especially for those groups living in remote communities and other disadvantaged groups. These include lack of transportation, poor quality education, poor sanitation, erroneous refusal to provide access to higher education, bullying and discrimination in higher education and others. Further research is required to deepen evidence based on the impact of legal assistance and justice services on equal access to quality education.
Supporting positive outcomes for migrants and immigrants
A number of legal assistance programmes focus on helping immigrants and migrants integrate into their new communities. These programmes are often reported to result in improved access to employment and government benefits and a reduction in the risk of poverty, including child poverty (Pastor and Scoggins, 2012[58]).
Reduced recidivism and enhanced victim support
In the criminal context, the provision of legal assistance has also been linked to reducing reoffending and enhanced victim support. Several countries developed a range of programmes (health, social, employment) to support victims of different crimes (abuse, domestic violence, forced labour, etc.), especially those in vulnerable groups. Many of these programmes include legal assistance components to help meet victims’ short- and long-term needs to stabilise their lives (e.g. secure housing, medical assistance, public benefits, immigration relief, education, employment and child custody orders).
On reduction of recidivism, several studies identified the following interventions as effective (in different circumstances and cases): educational and vocational programming, substance abuse treatment, drug courts, sex offender treatment, mental health treatment, cognitive behaviour programmes and programmes for juvenile offenders (family-based programmes) (Przybylski, 2008[59]). One study on the effectiveness of mental health courts in reducing the risk of recidivism and violence by people with mental disorders found that participation in a mental health court programme was linked to longer periods without new criminal charges or charges for violent crimes (McNiel and Binder, 2007[60]). Another US study of a drug court over a 10-year period found significantly reduced recidivism for participants up to 14 years of age (as compared to those who did not participate), lower investment costs (USD 1 392 less) as compared to the business-as-usual, and total savings of over USD 79 million over the 10‑year period as a result of reduced recidivism for participants in the drug court (Finigan and Carey, 2007[61]). Further research would be beneficial to explore the full range of impacts and benefits of these programmes, both on short‑term results and longer-term outcomes.
Supporting employment
Equal access to employment opportunities is key to increased social inclusion and poverty reduction. Data from the World Justice Project and other legal needs surveys show that employment-related problems are relatively widespread and can be associated with significant health and social problems. For example, according to the World Justice data in 2016 workplace-related legal incidents were reported among the most serious legal needs ones in Australia (11.8%), Belgium (9.9%), Colombia (6.3%), China (12.9%), Japan (14.3) and Poland (7.5%), among others. In Canada, 17% of all disputes reported by individuals were related to employment (Farrow et al., 2014[62]). Examples of employment-related legal problems may include deprivation of benefits, discrimination or harassment, unpaid wages and wage gaps, forced reduced hours, erroneous termination, unsafe work, suspensions, expulsions and others. There are also barriers to employment for those re-entering the workforce after incarceration.
All OECD countries put in place various programmes to support the unemployed and the employed. Some of them partner with legal aid programmes to help employees secure wages and benefits, ensure workplace safety or address discriminatory treatment, as well as provide support in job searches for vulnerable groups when legal issues are involved (reinstate a suspended driver’s license, secure certificates of rehabilitation, etc.). The information on the effectiveness of these interventions is scarce and varying. For example, the evaluation of the “Early Conciliation” service found that in more than half of the cases both claimants and employers were able to find a settlement (Downer, Harding and Ghezelayagh, 2016[63]), although a randomised control trial study of legal assistance from a law school clinic regarding administrative appeals to administrative judges of initial rulings on eligibility for unemployment benefits did not find any statistically significant impacts on the probability of success of unemployment claims (Greiner and Pattanayak, 2012[64]). As such, further efforts to explore in greater detail the impacts of these programmes on accessing employment and other related outcomes will help to understand their effectiveness.
Enhancing efficiency and savings
The economic impacts of access to justice, particularly through the provision of legal assistance, can be envisaged at multiple levels, including direct benefits and savings for individuals and families, and those that are indirect, such as improved court efficiency, increased economic investment within local communities, increased employment and associated tax revenue (Abel and Vignola, 2010[45]). While further research is needed to quantify various economic effects, some examples include:
Court efficiency – By assisting and representing clients, particularly self-represented and disadvantaged litigants, legal assistance services are found to prevent court congestion and improve the allocation of existing resources. In several studies, judges, court staff and opposing parties testified that having legal aid lawyers to assist vulnerable clients improves the efficiency of the court process and produces fairer results.16 The availability of legal aid was found to promote the resolution of legal issues at an early stage and ensures that matters are appropriately streamlined. It also increases the diversion of cases away from the courts into alternative dispute resolution mechanisms (PwC, 2009[52]).17,18 A recent study in California found that legal workshops and clinics provided by legal aid services reduced the number of court hearings and the time spent by court staff at the public counter. The study found that for every dollar spent on the legal aid clinics, the courts saved USD 4.35. When taking into account the savings accrued by litigants who did not attend the eliminated court hearings, the savings increased to USD 7.70 for every dollar spent.
Induced impacts19 – Studies showed that legal aid programmes can help secure case outcomes which may be associated with a range of monetary benefits for clients, including increased income, lump-sum payments, increased property value, consistent government benefits, work authorisation, child support, etc.20
Economic impacts on local economies – The economic impact on a local economy could include a multiplier effect resulting from the funds that come to, stay and are processed throughout communities that otherwise would be lost. For example, legal representation may result in reimbursements for individuals, small businesses and healthcare and other service providers for the cost of emergency services. These reimbursements are then invested in local economies and used to purchase additional goods and services, and recipients of that money use it again in the same manner. For low-income groups, the impact of the multiplier effect can be the most significant as they are more likely to spend their income on goods and services (The Perryman Group, 2009[65]).21
Reducing overall inequalities
Studies to date provided evidence of the positive effects of people receiving timely legal and justice services to overcome their legal problems. These benefits extend to sectoral benefits in a range of public policy areas (e.g. health, benefits, living conditions) and directly and indirectly to economic growth. Together these legal and justice interventions can contribute to inclusive growth and sustainable development and help to reduce overall inequalities. Like many areas of complex social policy, the links between meeting people’s legal needs and heightening inclusive growth are increasingly systematic but not necessarily causal.22
People-centred legal and justice services can intervene in and halt the “cycle of decline” and can extend to a “process of advancement” (Figure 2.7). The positive effects are likely to be greater to the extent that broader strategic outcomes such as inclusive growth, social inclusion, anti-poverty are designed into access to justice policies and services. Legal assistance services that target systemic change in addition to serving individual needs can assist in reducing overall inequalities.
Figure 2.7. Process of advancement
Key findings
Contrary to conventional approaches that consider legal problems to be a rare and unexpected event, legal problems are ubiquitous, they flow from everyday life and are experienced by many on a daily basis. This insight has important ramifications for our understanding of why access to justice matters and its relationship to inclusive growth and individual and community well-being.
Legal needs surveys now have been carried out over time and across a spectrum of countries illuminating consistent patterns and dynamics. They provide an important evidence base for recognising and specifically addressing people’s legal and justice needs, including marginalised groups, as a central strategy for achieving social inclusion. Insights from legal need surveys provide insight into the self-reinforcing nature of disadvantage and the ways in which unmet legal needs can contribute to a cycle of decline which inhibits economic productivity and contributes to further social exclusion.
Access to justice is at the centre radiating out onto many inclusive growth policies and programmes not because it is the outcome or end-goal, but because it is an integral part of facilitating the laws, policies and programmes that in turn enable growth, prosperity and individual and community well-being. Access to justice is the inescapable “AND” – health and justice, employment and justice, gender and justice, education and justice, and so on.
Inadequate access to justice is measured in terms of costs related to the impact of unmet legal needs including, for example, social costs, physical and mental health costs, lost productivity, reduced access to economic opportunities for individuals and business, and foregone education and employment opportunities. Increased access through the provision of people-centred legal and justice services have three types of measurable impacts: effects on the legal and justice systems, sectoral impacts or benefits, and high-level socio-economic impacts.
There is increasing yet uneven evidence that the impacts of unmet legal needs can be costly to individuals, communities and societies at large. The associated costs can be direct and indirect. Direct costs are the actual dollar expenditure related to leaving legal needs unaddressed (for individuals, entities and the state). Indirect costs include a wide range of costs resulting either from lost productivity of both paid work and household chores (e.g. the number of days people were unable to perform paid work) or lost opportunities.
Several country studies found multiple benefits in addressing legal needs and providing access to a wide range of legal assistance and access to justice programmes, for individuals, families and communities. There is evidence of positive sectoral impacts in areas such as housing and the prevention of homelessness, enabling gender equality and reducing domestic violence, supporting inclusion through facilitating access to social benefits, enhancing consumer, financial protection and debtor relief, facilitating access to healthcare and support for medical-legal problems, supporting child welfare and families, supporting positive outcomes for migrants and immigrants, reducing recidivism and enhanced victim support, supporting employment and promoting equality and diversity and promoting equal access to education.
The high legal total economic impact of access to justice, particularly through the provision of legal assistance, can be envisaged at multiple levels, including direct benefits and savings for individuals and families, and those that are indirect, such as improved court efficiency, increased economic investment within local communities, increased employment and associated tax revenue.
Equal access to justice can contribute to reducing overall inequalities by intervening in the “cycle of decline” that can be initiated by unresolved legal problems and contribute instead to a “cycle of advancement’.
Further empirical and conceptual work is required to strengthen the business case and contribute to more effective legal and justice services.
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Notes
← 1. For an overview of legal needs research, see Pleasence (2016[68]).
← 2. The figure would be higher still if it included surveys containing only small sections asking about civil legal problem experience, such as the 2008-09, 2009-10, 2012-13 and 2013-14 Scottish Crime and Justice Surveys.
← 3. Details of the Russian survey kindly provided by M. Gramatikov.
← 4. See OECD (2015[69]).
← 5. Additive is a way of describing, statistically, that the experience of one problem increases the likelihood of further problems. See for example, Pleasance et al. (2004[76]); Currie (2007[20]); Gramatikov (2007[75]); Chen et al. (2012[74]); Couramelos (2012[9]).
← 6. A substantial literature has developed around the conceptual model of legal disputing behaviour developed by Felstiner, Abel and Sarat (1981[71]), which depicts how problems must be recognised as such before action can be taken to resolve them. More recently, this conceptual model has been expanded and explored through empirical investigation including inter alia in Pleasance et al. (2014[19]).
← 7. See also Attorney General Holder E. (2015[77]).
← 8. Various studies cited in this note used different measurement strategies to understand the costs of unaddressed legal (justiciable) problems (through legal needs surveys, by asking individuals about the consequences when no action was taken to resolve a legal problem, actual costs of services obtained by individuals to deal with these consequences, e.g. the costs of shelters, etc.).
← 9. This discussion is based on OECD (2015[69]).
← 10. Ibid.
← 11. Ibid.
← 12. Ibid.
← 13. The benefit-cost analysis is limited to the direct impacts of legal aid on the court system and does not include advice or information and education services that legal aid provides. It can be assumed that these services would have significant net benefits to the justice system, particularly because they provide early intervention and prevent matters from being escalated unnecessarily through the system. However, the direct nexus between these services and efficiency benefits to the justice system is difficult to isolate and, therefore, to avoid complexity, they have not been included in this analysis (PwC, 2009[52]).
← 14. See OECD (2018[72]); White House Legal Aid Interagency Roundtable (2016[55]).
← 15. In New Hampshire, for example, researchers estimated that the state’s three major legal services programmes – New Hampshire Legal Assistance, Legal Advice and Referral Center, and New Hampshire Pro Bono – brought in USD 14.3 million of SSI/SSD benefits for elderly and disabled people, USD 8.6 million of Medicare Benefits for people with disabilities, USD 1.7 million in federal tax refunds and savings for low-income clients, USD 12.8 million in child and spousal support in 2011 (Smith, n.d.[70]).
← 16. This effect was summarised by the Blue Ribbon Taskforce on Legal Aid in New York: “Evidence before the Task Force clearly establishes that the provision of civil legal services is the essential ingredient for resolving disputes before they get to court and settling them efficiently and effectively when cases do end up in court. The absence of counsel often results in just the opposite, which is in no one’s interest. Thomas Richards, the Rochester Corporation Counsel and the former CEO of Rochester Gas & Electric, put it this way: Relatively simple aspects of the process take more time and are more likely to be adjourned or repeated. The outcome is less likely to be understood and accepted by the unrepresented party. All of this adds time and frustration and expense that’s borne by everyone and ultimately leaves society with a less effective legal system” (Abel and Vignola, 2010[45]).
← 17. In relation to increased efficiency, the avoidance of costs to the justice system represents a considerable benefit from legal aid. In order to assess this, a benefit-cost analysis was undertaken which modelled a world with no legal aid. There are a number of areas where legal aid provides efficiency benefits to the justice system including: i) the resolution of legal issues at an early stage and streamlining of matters appropriately through the justice system by the provision of legal advice, information and education; ii) the diversion of cases away from the courts through the provision of dispute resolution mechanisms, e.g. legal aid commissions’ family dispute resolution services, the increased efficiency of court processes by having duty lawyers on hand to help self-represented litigants (SRLs) address the court and present relevant information; iii) the increased efficiency of the court associated with otherwise self-representing litigants having legal representation.
← 18. The benefit-cost analysis is limited to the direct impacts of legal aid on the court system and does not include advice or information and education services that legal aid provides. It can be assumed that these services would have significant net benefits to the justice system, particularly because they provide early intervention and prevent matters from being escalated unnecessarily through the system. However, the direct nexus between these services and efficiency benefits to the justice system is difficult to isolate and, therefore, to avoid complexity, they have not been included in this analysis.
← 19. One approach to calculating the total economic impact of a programme may involve estimating the total new expenditure streams that result from the programme’s activities, then analysing both short- and long-term effects of this spending.
← 20. See The Perryman Group (2009[65]).
← 21. See also: Abel and Vignola (2010[45]). The multiplier effect tends to be bigger when a community is larger and more self-sufficient, as the money can circulate around the community several times. See: Bingham (1994[66]); Ginsberg, and Miller-Cribbs (2005[67]).
← 22. See for example, in the health policy field, the literature of the social determinants of health (Braveman et al. (2011[73])).