LAWYERS AND SOCIAL CHANGE: ACCESS TO JUSTICE HOMLESS PERSONS LEGAL ADVICE SERVICE:

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1 LAWYERS AND SOCIAL CHANGE: ACCESS TO JUSTICE HOMLESS PERSONS LEGAL ADVICE SERVICE: LEGAL ACADEMICS, LAW STUDENTS AND LEGAL PRACTITIONERS: EDUCATION AND ACTION FOR SOCIAL CHANGE Kathleen McEvoy, University of Adelaide Law School From February 2005 the University of Adelaide Law School, in partnership with SA Baptist Community Services (Westcare), will operate a Homeless Persons Legal Advice Service Adelaide from a central city location which already provides a range of services to homeless men and women. The Legal Service will operate one day a week with students from the University of Adelaide Law School Clinical Law program. The students will have their clinical placement at the Homeless Persons' Advice Service, which will be situated in inner Adelaide. The students will be supervised by members of the academic staff responsible for the program, and also by another legal practitioner from an Adelaide law firm, supplied as an aspect of the firm's pro bono commitment. Various legal and associated aspects of homelessness will be the focus of those students' academic work, complementing the advice work they do on the placement. There will be particular focus on law reform that will form part of students assessable work for the subject. The Service will present an important aspect of pro bono work in the community for legal practitioners (including legal academics). As importantly however, and uniquely, the Service contributes to an important aspect of legal education: giving students an opportunity to be exposed to broader issues of social justice; seeing and assisting the participation of legal practitioners on a pro bono basis; and enabling them to participate at first hand in the facilitation of very marginalised people into more mainstream legal services. This Service provides an interface for legal practitioners and the community, and with issues of social justice, in a way which might assist in addressing some of the underlying issues contributing to and exacerbating homelessness. Its novel aspect is its association with the University as an educational component in the Law degree. The significance and value of the Service The availability of legal and advocacy services for persons who are homeless or experiencing difficulty with housing is limited. Large numbers of persons who are disadvantaged in our community, particularly through homelessness, have difficulty accessing legal advice and advocacy services, and are reliant upon the stretched 1

2 resources of Community Legal Services, the Legal Services Commission, and health care/community sector workers. The difficulties in accessing such services are exacerbated in the case of homeless persons for whom the logistics of accessing legal services are intensified, and who often face specific legal issues both associated with and arising out of their homelessness. Access to legal and advocacy services is essential for many disadvantaged persons to facilitate access to services and exercise of rights at a basic level. Without such access important social and legal rights promoted in our community, as well as fundamental human rights, are effectively denied. There is currently considerable national and political focus on homelessness and the needs of the homeless. Both Commonwealth and State initiatives recognise the importance of addressing the provision of access to legal advice and services to the homeless as an important aspect of addressing the underlying issues contributing and exacerbating homelessness. The Senate Report on Poverty and Financial Hardship, focusing on Homelessness, released on 11 March 2004, indicated that poverty, unemployment, disability, domestic violence and discrimination were all matters frequently factors in homelessness and access to adequate housing. All these issues indicate a range of matters in respect of which legal assistance and advice may be central in addressing the issue of homelessness. Homeless persons legal advice services have been set up in Victoria, under the auspices of the Public Interest Law Clearing House (PILCH). Similar services are being offered in NSW and Queensland, in collaboration with PILCH NSW and Q PILCH. The model adopted in these states relies upon a partnership between the private legal profession and community legal services resources. A Clinic coordinator, employed by PILCH, coordinates and assists with the provision by law firms of a weekly advice service at various homeless persons centers. These firms offer the service as part of their pro bono obligations to the community. In Victoria, a number of large firms provide a roster of solicitors who attend a designated clinic throughout the year, coordinated by a solicitor working with PILCH. State funding of approximately $70,000 per annum is allocated to the support of this service. Existing Homeless Persons Legal Clinics offer advice and advocacy/legal services to homeless persons on a range of issues, generally including the following: Family/custody Minor criminal Debt/fines Child support Mental health/guardianship Victims of crime Public space offences Domestic violence Access to public services Housing Centrelink 2

3 Not all services provide advice in all areas. Some do not deal with criminal matters, some will not deal with family law. Services provided range from advice and referral to advocacy and representation. It is expected that the same range of issues will face the South Australian Service. The South Australian Homeless Persons Legal Advice Service South Australia does not have a PILCH or equivalent organisation in a position to develop a homeless persons legal advice service. The University of Adelaide Law School, in partnership with SA Baptist Community Services (WestCare), will establish this Service from February The Service will be run through the Law School s existing Clinical Legal Education Program, which is an undergraduate elective subject as part of the Law degree. The Clinical Legal Education Program allocates students to community legal services and small private firms with a community focus for one day per week as the clinical component of the academic subject. This Service will be another placement opportunity for students in the course. The Law Society of South Australia has endorsed and supports this pilot programme. The Service will be operated from the premises of the Sanctuary in the City run by WestCare in central Adelaide, as experience suggests such services are best located in the centres where homeless persons seek shelter, as they are less likely to seek assistance or keep appointments at Legal Aid or other offices. It is envisaged that in time as the WestCare supports extend to include medical and dental services, the Legal Advice Service will form part of a holistic approach to serving the needs of homeless persons at the Sanctuary. There are significant numbers of homeless persons in South Australia who are clients of such services. The publication of the Social Inclusion Board, Reducing Homelessness in SA, published in July 2003, indicated the difficulty in establishing precise numbers, but referred to the figures identified for SA in the 1996 and 2001 Census: these showed a significant increase in homelessness in SA. The figures provided for SA include the following: 898 primary homeless (sleeping out), compared with 734 primary homeless in % in Adelaide, the rest outside the CBD and in regional areas; 4771 secondary homeless (includes people in shelters or supported accommodation) in 1996, and 2001 figures not available. However, there are 1162 boarding house beds in SA Primary homeless 2001 included 37% in family groups and 183 children, 129 under 11, and 269 single adults. In 2001 there were 2394 homeless youth in SA (aged 12 18), mostly secondary homeless, 19% under 14. BCS WestCare has major interaction with homeless persons in Adelaide. The demand for its services is increasing and in many cases the increasing demand is unable to be met. Its client base is perhaps best measured by the numbers who seek 3

4 support directly from WestCare, either by the numbers attending for lunch, or those seeking appointments for other services. BCS WestCare records 1,850 welfare appointments conducted in the 12 months March 2003 March 2004, with more than 2000 additional requests for such appointments unable to be met. WestCare s recent figures for clients at its meal service indicate a steady increase, with 2,827 lunches served in February The figures are set out in the Appendix. It is most likely many of these clients have a range of legal issues which could be addressed by the Legal Advisory Service, no doubt covering the same gamut of issues as faced by other Services interstate. These figures suggest a large client base is likely. A coalition of private legal practitioners, the University, and the community sector, will enable an effective legal advice and referral service to be made available to many homeless people in Adelaide. Aims of the Service The aims of the Service are to: facilitate access to justice by homeless persons, who currently often do not receive legal advice or support because of their circumstances; expand the pool of legal resources available to disadvantaged persons in the community; provide an opportunity for students as part of their law studies to engage in supervised representation of clients, in conjunction with a recognised course of study, or a recognised university program; develop appreciation of the importance of pro bono legal work in graduating law students; include the legal profession in the active provision of focussed pro bono services; strengthen ties between the University, the legal profession, and the community sector; conduct research to gain a better understanding of the legal needs of homeless persons, the barriers to access to justice affecting them, and the ways in which the legal needs of homeless persons can best be met; and develop a practice manual that can be applied in all legal clinics or services offering advice to the community. Primary Function of the Service It is planned that these aims will be achieved by: providing legal advice referral services to homeless persons; 4

5 liaising with existing homeless persons advice services and clinics interstate to identify areas of legal need and obtain necessary documents to administer the service; providing a referral service to relevant agencies; and focussing education for later year law students on legal issues relevant to the provision of this and similar services and legal pro bono work through formal teaching modules and on site education in a clinic environment. The Service will provide advice rather than representation, although clients may receive assistance in some steps of proceedings, such as initial advice and drafting documents and letters. However, there will be no provision for advocacy services. The principal focus of the service provided will be to facilitate access into mainstream legal resources. Management and Operation of the Service It is planned that the Homeless Persons Legal Advice Service will operate as follows: Advice service one morning per week (9.30am-1.00pm); Four students under the supervision of one or two solicitors (including one or more members of the Law School s academic staff); Hourly appointments with students working either in pairs or singly. All normal legal office requirements such as conflict register, confidentiality and privacy, indemnity forms, file maintenance and upkeep etc, will be the responsibility of the Law School. The Law School has already established appropriate arrangements for such legal office requirements through its successful Adelaide Magistrates Court Clinic, which has been in operation now since This Clinic is also operated through the School s Clinical Law Programme. WestCare will provide supports or facilities essential to the operation and management of the service, including basic office facilities of telephone/fax/photocopier, lockable filing cabinets, and private office space where clients can meet with students, with an additional area for debriefing and discussion with each other and supervisors. WestCare will also make some appointments, but there will be provision for drop in clients each day. WestCare will also participate in training arrangements (see below). The Clinical Law programme in its academic component encourages students to reflect analytically on their placement work, and see it in a context of the broad operation of legal principles and the legal system. They are required to consider generalised work practices derived from the experience of the placement which will assist them in a practical application and understanding of legal issues. Written assessable work for the subject requires students to present research and analysis related to issues associated with the placement, which could be a specific project which arisen out of the placement, or a more theoretical discussion. Generally however such research has a strong law reform and practical focus. 5

6 Specific features of the Service are highlighted below: Supervision of student participants It is of course recognised that it is not possible for students to give legal advice, nor desirable for them to function in an environment which is likely to be confronting in many respects without training, supervision and support. Supervision will be provided at all times in the Service by at least one (legal practitioner) academic staff member, and a practicing legal practitioner. In addition, training and other support is provided as an ongoing aspect of the students involvement in the Clinical Law programme. The supervision of students at such clinics is a significant issue. Intensive supervision is an essential feature of clinics, both from the point of view of both the provision of legal advice and the educational aspect of the work, as it forms part of the assessable work for an elective subject in the Law degree. However, it is inappropriate for the high degree of supervision to be managed by academic legal staff alone, partly because of the time involved in management of such a service, but also because the involvement of other practitioners enables the provision of a greater spread of expertise and experience, valuable for the clients of the service and its success, and to the students involved as a learning and experiential tool. For this Service to have the best opportunity to succeed for both the clients and the students involved, some equivalent additional supervisory assistance will be established. A partnership with at least one Adelaide law firm will be established as a feature of the operation of the clinic structure of the service. A partnership with supervision shared between the Law School and a private law firm will provide a sustainable basis for the legal service. Support for the Service from the Law Society of South Australia will be of invaluable assistance in obtaining this support. The involvement of students The provision of legal advice and services to the disadvantaged by University-run student clinics is commonplace elsewhere in Australia, the UK and the US. This practice has developed in part at least as Law Schools and their staff and students have been prepared to step in and fill part of the vacuum left by diminishing legal aid funding. However, such a role is also recognised as an opportunity to educate our students in issues of justice access as an integral part of law school and general legal education. By offering such clinics Law Schools are able to benefit their students by experiential learning, as well as providing an opportunity for members of Law School staff to make a valuable pro bono contribution. It is sometimes suggested that disadvantaged persons are left with second rate legal services offered by students rather than by solicitors. However, students are carefully selected and trained both prior to commencing and in the course of the clinical placement, and they are under the day-to-day supervision of a solicitor and required to discuss all advice in detail with that solicitor. The students involved in the Adelaide Clinical Law Programme are later year law students, generally in the semester just 6

7 prior to their PLT commencement, which also includes a placement. Experience in all jurisdictions shows that such students are motivated and committed to pursuing clients goals and social justice, and do not provide a less effective service. The students who engage in such services are self selecting as highly motivated and confident, and committed to the goals of the such services. Further, the coalition of several students working under the tutelage of one or more solicitors means that there are opportunities for research and development of case work beneficial to both individual clients and the general client base, otherwise not generally possible for a busy legal advice service. It is planned that the completed research projects relating to the Service and general homelessness associated issues will come to form a significant aspect of the data base of material in this area. It is anticipated that most advice will be by way of issues identification and referral. Training Appropriate training of both students and supervisors is absolutely essential to ensure a credible service is offered. The University of Adelaide Law School will present a two-day intensive training session for students in early February 2005, prior to the commencement of the Service. Students to be placed with the Service will participate in the training programme, as well as in the ongoing discussions and seminars forming part of the Clinical Law Programme throughout the semester. However, the intensive training will be made available not only to the students involved, but also to community legal workers and others. This training will include addressing some relevant substantive areas of law, including debt and bankruptcy; fines management; victims of crime issues; guardianship and administration; social security law; family and child support; housing and tenancy law; consumer law; and mental health law. Some aspects of this training will also be provided by WestCare, particularly in relation to the context of homelessness and the services available. Much of the legal subject matter of the training will be addressed by Law School staff. Matters such as interviewing and clinic practices, ethics, and office management will also be included for all students as a general part of their Clinical Law work for the subject. Other aspects of the necessary training will be provided by community centres and other public and private bodies. Legal Clinic Practice Manual Associated with operating the Service is the development of a Legal Clinic Practice Manual. The Manual is designed to provide a generic support for this and similar services, covering aspects of substantive law (by way of basic relevant material and references it is not intended to duplicate existing resources in this area), referral services, and practices for the operation of such services, especially by students and on a pro bono basis. The development of the Manual is seen as an important aspect of both the educational and pro bono roles of the Service. 7

8 There is already a significant amount of relevant material on the establishment and operation of existing Homeless Persons Legal Advice Clinics, including case notes and legal bulletins. The University of Adelaide Law School has experience in setting up and managing other types of community clinics in SA, such as the Adelaide Magistrates Court Advice Clinic, and the existing office practice, conflicts and ethical standards arrangements in place for that clinic will be adapted into a Manual for use in the Service. However, identification and collation of other material relating to legal clinical services generally and those concerning Homeless Persons Services in particular will be an aspect of the work to be undertaken with the establishment of the Service. A comprehensive manual to support this and similar services will be very valuable. The identification of relevant materials and contacts from numerous sources, and their digest and collation, is an essential aspect of ensuring the ongoing usefulness of this and similar services into the future. Such material will become a significant substantive resource. In addition, the development of a Legal Practice Clinic Manual will be invaluable for the extension of this Service and the development of clinics by other legal centres, as well as supporting clinical law in other areas and placements While there is a significant amount of literature in the area of services to homeless persons, and the value of clinics, there is a gap in the literature in relation to the hands on running of such clinics, particularly in relation to the establishment of all the legal office procedures in the sense of a generic manual such as that proposed. The Manual will contain both procedural and administrative instructions and precedents for use in both student centred clinics (such as proposed here) and Community Legal Services, particularly directed to issues of access to justice. Development of Homelessness Resources Students involved in the Service will develop research projects as part of their academic work in Clinical Law. These projects may range from analyses of various areas of substantive law relevant to homelessness issues (such as Public Space issues), to surveys, to the development of specific resources such as information sheets. It is planned that this research work may become part of the resources on Homelessness generally, not just in relation to the operation of the Service. Benefit to the Community The Homeless Persons Legal Advice Service will provide a number of benefits to the community. There is a direct benefit to homeless persons, who otherwise are very limited in their capacity to obtain access to justice within the legal system. 8

9 The inability of homeless persons to obtain legal advice on a range of matters including debt, family, welfare and housing issues, imposes costs on the South Australian community. The operation of the Service will assist homeless persons to integrate more into the community, and in conjunction with other services offered by WestCare (such as medical and counselling services), the Service will provide benefits to the wider South Australian community. The Service will encourage a greater understanding of the issues of homelessness and an appreciation of the importance of pro bono work in the students who participate in the Service. This should provide long-term benefits to the community by fostering a commitment to pro bono work among participating students, as well as broader understanding of legal issues in the wider community. The Practice Manual will be generally applicable to the operation of all community legal advice clinics. The provision of the Service has two basic foundations. The first is the intrinsic value and the actual provision of the Service itself, as outlined above in this paper This provides the wider context for the second focus of the Service. This second focus is the opportunity to provide, and educate our future lawyers in the provision of, pro bono services focussing on the role of the law and its administration in relation to highly marginalised people in the community. This exposes us as legal academics to the coalface of the operation of the law and the provision of legal services. It is an opportunity for us as academics to participate in an active, immediate and practical manner in improvement of access to the law and an improvement in the administration of the law. Not only can this form a significant aspect of our pro bono work as legal practitioners, but such experience enlivens our understanding of legal issues and the operation of law for our teaching and research. Further it provides an opportunity to expose these issues and experiences to our law students as part of their legal education: for them to learn about the manner in which the law operates (and can operate) in relation to those marginalised by and from the law and its processes; to work with other lawyers on a pro bono basis to improve this state of affairs; and, through their research, to consider improvements in the content, operation and administration of law in this context. It is the legal education component of this Service which distinguishes it from the existing established PILCH Services in place elsewhere. This Service will not only be able to provide a similar service to homeless people in South Australia, but also expose law students to the values and demands of pro bono legal work and the importance to all lawyers of participating in the improvement of law and its processes. Its plan is to produce lawyers who are committed to using and developing the law and its processes for social justice and change. 9

10 APPENDIX: RECENT DEMAND UPON WESTCARE MEAL SERVICE (NOT INCLUDING KARPANDI*) * Karpundi is the aspect of the Westcare Service that provides assistance to aboriginal women. TABLE 1 Number of People Accessing WestCare Day Centre by Month Year Month Showering (Towel Count) Breakfast (9am) Morning Tea (10.30am) Lunch (12 noon) Afternoon Tea (2.00pm) 2003 July August September October November December January February March (1-7only) April 2004 May 2004 June Total (to 7 th March) 552 4,139 5,132 23,068 4,974 Source: BCS WestCare Transition Pathways June