Introduction

Questions of consent, cooperation and compliance have confronted the police and courts for many years. The ability to generate trust and command legitimacy is central to the functioning of legal institutions, their provision of services and delivery of outcomes (Tyler and Nobo 2023). On the one hand, people are more likely to use legal services, come forward with information, report crimes to the police and give evidence in court when they believe that justice institutions are trustworthy, appropriate and entitled to be obeyed. On the other hand, authorities that are seen as untrustworthy and illegitimate find it difficult to garner cooperation, gain acceptance of their decisions and enforce rules.

Scholars have produced a rich amount of academic research on the foundations, predictors and potential outcomes of legitimacy and ‘trust in justice’ (Tyler 2006b; Tyler and Huo 2002), especially in the context of the police, although this work is increasingly being applied in administrative justice and alternative dispute resolution (ADR) settings (Creutzfeldt and Bradford 2016; Bradford et al 2023; Hough 2020). In addition to highlighting ‘downstream’ implications for motivating and enabling engagement between two parties, this work has accumulated an increasing amount of evidence that trust and legitimacy are partly a product of people's experiences, judgements of and responses to their direct and indirect contacts with the police, courts and other legal entities. Justice system encounters represent ‘teachable moments’, whereby people update their attitudes towards the trustworthiness and legitimacy of legal authorities (can officials be trusted to do what they are supposed to do? Does the institution have the right to power and authority to govern?) based on how they perceive the official to behave, specifically the fairness exercised by legal authorities (Geller et al 2014).

Procedural justice scholars have focused on how courts, tribunals, police and other authorities treat people and make decisions (Mazerolle et al 2013) and have considered some of the potential implications for compliance (Tyler 2006b), cooperation (Tyler and Fagan 2008), empowerment (Sunshine and Tyler 2003) and community cohesion (Tyler and Jackson 2014) arising from the experience of procedural justice and the trust and legitimacy it does or does not generate.

Introduction

With this chapter, we now begin Part III of this book, in which we explore the help-seeker journey by presenting our empirical data, starting here with a discussion of the vignette experiment. In Chapters 7 and 8, we will examine our qualitative data. In Chapter 2, we reviewed the literature on legitimacy, trust and procedural justice, which demonstrated that most prior research has focused on the police. However, in that chapter we also drew out some reasons why procedural justice may be important in administrative justice. In this chapter, we consider the idea that experiencing procedural justice during interactions with tribunals and ombuds is important not only in shaping legitimacy, but also in influencing perceptions of process transparency, outcome fairness, satisfaction and willingness to engage with the system in the future. We also assess whether the findings are different for online and offline proceedings.

Given the dearth of UK-based research on how people use and think about tribunals and ombuds services, open empirical questions remain, particularly in the new era of technologically mediated online interactions. For this reason, we fielded an online experiment to explore some of the underlying issues that placed research participants in hypothetical online and offline conditions using textual vignettes. Participants were presented with a story depicting a tribunal or ombuds procedure involving ‘Marta’, which was either online or offline, and either embodied procedurally just or procedurally unjust principles of interpersonal fairness and decision-making. We based this experiment on our scenario that we introduced in Part II. We manipulated key aspects of the scenario (that is, levels of procedural justice) to assess the potential impact on people's perceptions of fairness and legitimacy, as well as their willingness to engage with the system in the future (see Appendix). We did this in six steps.

First, we tested whether the procedural justice manipulations ‘worked’. We did this after each experimental manipulation by (a) fielding a scale of people's perceptions of the procedural fairness that Marta had experienced and (b) assessing whether these perceptions varied in predictable ways across the procedurally just and unjust experimental conditions.

Introduction

This chapter explores how the pandemic has affected access to advice and redress for marginalized groups. Already marginalized communities are likely to be impacted the most by the pandemic. Yet, we know relatively little about how members of these groups are accessing the justice system, and what can be done to improve their capacity to obtain advice, support and redress. In addressing these questions, the project builds upon, and seeks to extend, existing work about marginalized groups that are alienated by the justice system (Halliday and Morgan 2013; Gill and Creutzfeldt 2018) and whose relationships to authority are characterized by a context of structural disempowerment (Kyprianides et al 2020). Additionally, it is critical to understand people's inaction when faced with a legal problem. Existing research based on legal needs surveys has demonstrated that those experiencing the greatest social and economic disadvantage and marginalization are often the least likely to take any action in response to a rights-based problem (Pleasence et al 2013); in particular, those people who do nothing in response to a problem experienced, which is relatively common in both housing and special educational needs and disabilities (SEND) contexts. This chapter discusses the interview data through the lens of access to justice and trust in justice. However, here, we also apply the lens of digital and legal capabilities (digital legal consciousness) to help understand people's emerging attitudes towards the digital justice system.

By applying the lens of digital and legal capabilities to our data, we were able to tease out the relationship people have with the (online) justice system. Those who are ‘digitally assisted, legally unable’ (Type 3) – for example, the SEND children's parents we interviewed – become alienated from the justice system because they are not able to identify that the problems they are facing might be legal ones and where they can turn to for help. This group is on the margins of being digitally excluded, but if they manage to seek help, as some of our interviewees did, then they become able to obtain assistance in legal and digital access. Although these people have low digital capabilities and low legal capabilities, with assistance, as shown by our interview data, they can access the digital justice system.

Introduction

This chapter develops the argument for a holistic vision of access to justice (Creutzfeldt et al 2021). We expand upon Wrbka's (2014) definition of the concept of access to justice [that] embodies the ideal that everybody, regardless of their capabilities, should have the chance to enjoy the protection and enforcement of their rights by the use of law and the legal system, and thus argue that we need a broader definition. To date, access to justice has been refined down to a narrow ‘legal justice’ focus, involving access to legal assistance in the form of legal advice and access to resolution in the form of legal institutions. However, a more generous vision for access to justice is needed that includes initial advice and help from non-legal support, social and community actors (for example, friends, family, the advice sector, local councils, specialist non-governmental organizations, schools, the internet) as components of the delivery of access to justice. In light of this vision, we discuss the legal needs literature and propose a more generous approach to access to justice, reaching beyond legal confines. Following on from that, we distinguish access to offline justice from access to online justice, and then set out theoretical frameworks through which to understand access to justice and analyse people's digital journeys in our dataset.

Legal needs and vulnerability

Legal needs surveys investigate the experience of justiciable problems from the perspective of those who face them (a ‘bottom-up’ perspective), rather than from that of justice professionals and institutions (a ‘topdown’ perspective). They seek to identify and explore the full range of responses to problems and, within this, all the various sources of help and expert institutions that are utilized in pursuing problem resolution. Such surveys provide a uniquely comprehensive overview that is impossible to achieve by other means. Existing research based on legal needs surveys has demonstrated that those experiencing the greatest social and economic disadvantage and marginalization are often the least likely to take any action in response to a rights-based problem (Sandefur 2015b; Franklyn et al 2017).

This is a book about institutions in the administrative justice system (AJS), their users and pathways to justice. The AJS is made up of institutions that help individuals when the government acts in ways that are unfair or unjust (Adler 2003; Mullen 2010, 2016; Kirkham 2016; Tomlinson 2017b). The institutions that form the AJS are complaint schemes, ombuds,1 tribunals and the Administrative Court. They influence our lives in areas of housing, health care, education, social security and taxation, for example.

The Administrative Justice and Tribunals Council established a framework for understanding the intricate connections between the decision-making process that underpins the relationship between the state and its citizens, as well as the methods utilized to resolve disputes, such as internal or external complaints and reviews, and the involvement of independent complaint handlers such as ombuds and tribunals (House of Commons 2023). As our book will show in later chapters, these associations are not actual connections between the institutions. Rather, the institutions are disconnected and typically operate in silos, which contributes to an over-complication of the AJS for those who work in these institutions as well as for people who seek access to these institutions.

This book is based on a Nuffield-funded research project and is about people who administer institutions of the AJS, about people who use institutions of the AJS, and about those who do not access institutions of the AJS. We explore these different positions in the AJS through two distinct pathways to seek redress: housing and special educational needs and disabilities (SEND). We focus on these areas because they have been especially affected by two major changes to the justice system: digitalization (Tomlinson 2017a; Ryder 2019) and the COVID-19 pandemic (Creutzfeldt and Sechi 2021). The pathways through the justice system that we look at include advice services, non-governmental organizations (NGOs), ombuds and tribunals. The emphasis on these institutions allows us to better understand the effects of the pandemic; how such institutions managed to provide their services remotely; and how people accessed these services.

This book extends existing research by examining the effect of rapid digitalization on the delivery of justice.

Contents

• 1. Vignette example: a fair online tribunal process

• 2. Vignette example: an unfair online tribunal process

• 3. Vignette example: a fair offline tribunal process

• 4. Vignette example: an unfair offline tribunal process

• 5. Vignette example: a fair online ombuds process

• 6. Vignette example: an unfair online ombuds process

• 7. Vignette example: a fair offline ombuds process

• 8. Vignette example: an unfair offline ombuds process

Vignette example: a fair online tribunal process

Marta is 40 years old, a single mother of two living in social housing, who has been struggling to pay her housing costs and rent since COVID-19 hit and caused her to lose her job. She was able to continue with most of her regular payments. She has now found a part-time job and been able to clear some of her arrears and pay the ongoing rent. However, her landlord has now given notice that the rent is to be increased, and Marta cannot afford it. The advice organization Marta contacts helps her figure out what to do next. She can take her problem to the Property Chamber which is a tribunal. The Property Chamber handles applications, appeals and references relating to disputes over property and land. Residential property disputes that they handle include rent increases for ‘fair’ or ‘market’ rates.

Marta appeals to the Property Chamber for a decision about the proposed rent increase. Marta needs to fill in a form to make the appeal. She downloads the form from the HM Courts & Tribunals Service website. She fills it in and posts it. Usually there is a fee of £100 to pay, but there is a ‘fee waiver’ available for those who need it. The advice organization helps Marta get the fee waiver, so she does not have to pay the £100.

Marta waits to hear back from the Property Chamber. The Property Chamber checks Marta's form and the extra attachments she sent with it. It then gets back to Marta with a timetable for her case, the date of her hearing, and some extra information about the hearing.

Introduction

Using a similar approach to that of Chapter 4 (on housing), this chapter will explore the pathways to redress available to people through mapping (the ideal case) help-seeker journeys for people seeking help with special educational needs and disabilities (SEND) to understand how access points have been compromised and which pathways to justice are difficult to negotiate or blocked (Genn 1999; McKeever et al 2018). The Local Government and Social Care Ombudsman (LGSCO), the Parliamentary and Health Service Ombudsman (PHSO) and the SEND Tribunal provide redress for SEND problems. This cohort of administrative justice system institutions do not typically interact well with one another, and so we identify here the impact that digitalization could have on the procedures for these institutions to cooperate more effectively. There then follows a presentation of the ideal case help-seeker journey for those in need of support for SEND problems, using our specially developed journey map. Finally, we will draw on interviews conducted with advice sector professionals, judges, case handlers and users to show how the help-seeker journey unfolds in reality.

Pathways to resolve grievances: ombuds and tribunals

The LGSCO and the First-Tier (Special Educational Needs and Disability) Tribunal provide redress for special educational needs problems. Although both provide redress for SEND issues, each deals with different aspects of a challenge. The LGSCO deals predominately with issues about the (in)actions of local authorities (LAs) in delivering the education, health and care (EHC) process. This includes areas such as complaints about the delay in assessing a child; about issuing the plan; and about failure to carry out reviews.

If there is a route to appeal to the tribunal, such as a decision not to assess a child; or on the content of the EHC plan, then the ombuds is not allowed to investigate these issues. They also do not have the powers to look at what happens inside an educational setting relating to special educational needs provision. Unlike the LGSCO, the SEND Tribunal deals only with decisions LAs make about children and young people with SEND and with schools that discriminate against a young person with disabilities.

Introduction

In Chapter 6, we discussed our quantitative experiments and concluded that procedural justice matters in the context of online interactions; this and the next chapter will discuss the question of access. How accessible is online justice? We ask this question in the context of the data discussed in Chapters 4 and 5, which explored people's interactions with the digital justice space. This chapter enquires into how those who administer justice, those who provide advice and those who use the online justice system experience it. In so doing, we consider how the use of technology in the justice system is shaped by, and may reshape, people's orientations and sensibilities towards law (Merry 1990; Cowan 2004; Hertogh 2004; Silbey 2005) and technology (Elvidge 2018). We use our data to examine, through people's (non)digital journeys, in what way consciousness of how we think and feel about the law relates to our capability of acting upon it. In Chapters 4 and 5, we have considered helpseekers’ different levels of access, different levels of capabilities, and different levels of abilities in relation to (non)access. In Chapter 6, we discussed our quantitative experiment and showed the importance of procedural justice and legitimacy for online and offline encounters with the justice system.

In this chapter, we move on to the themes emerging from the interview data with judges, lawyers and case workers and contrast these with our user data through the lens of digital legal consciousness (digital and legal capabilities). The data we draw upon for this chapter are the SEND Tribunal and Property Chamber interviews and the survey responses of the advice sector, case handlers, judges and users. Based on the four basic types of digital legal consciousness (Chapter 1), we identified our user responses to be a combination of Type 1 and Type 2, discussed in the next section. Examples of Types 3 and 4 will be discussed in Chapter 8. As mentioned, there are no clear boundaries separating these types in real life; they merely serve here as a foundation to build upon. For example, a Type 3 user could take part in a tribunal hearing, assisted by a representative or other supporter, but our dataset did not contain them.

Introduction

In this final chapter we discuss our empirical findings through the theoretical lenses introduced in Chapters 1 and 2. Our focus is on the user (help-seeker), how they access online processes and what shapes their perceptions of these processes. We set out to argue for a broader understanding of access to justice, to include non-legal actors, and to take into consideration vulnerabilities; ensuring access to justice extends to all members of society, not just those who are legally and technically capable. The current access to justice framework, which is heavily focused on legal tradition and legal confines, must evolve to be more inclusive and consider the needs of non-expert individuals. For example, the traditional design of courthouses has not considered the needs of lay users (Mulcahy and Rowden 2020), and as we move towards an increasingly digitalized justice system, it is crucial that access to justice is safeguarded for all (Denvir and Selvarajah 2022; Mentovich et al 2023). Online justice presents both opportunities and challenges (Schmitz 2019), and it is vital that we proactively address these to ensure that the justice system is accessible to all. Moreover, access to justice is a personal journey, and it is imperative to recognize that individuals may have unique emotional responses that cannot be solely attributed to their level of digital capabilities. The distinctions between in-person and online experiences further complicate this process, as emotions can vary greatly in each scenario. The online setting can prompt emotional responses, even if one has support from a lawyer or an advocate (Hou et al 2017).

We advanced the theoretical scholarship on, and methodological approach to, legal consciousness through the lenses of digital legal consciousness (Creutzfeldt 2021) and procedural justice (Creutzfeldt and Bradford 2016) to secure a better understanding of what the online system expects of people; what people expect from the online system, and how they make sense of it. We discuss this in four parts. First, we propose a model that better represents an inclusive idea of access to (online) justice. We do this by bringing theories from different disciplines together to think about digital journeys.