Vulnerability, legal need and technology in England and Wales
| Date | 01 September 2021 |
| Published date | 01 September 2021 |
| DOI | 10.1177/13582291211031375 |
| Subject Matter | Articles |
2021, Vol. 21(3) 230 –253
Article
Vulnerability, legal need
and technology in
England and Wales
Daniel Newman
1
, Jess Mant
1
and Faith Gordon
2
Abstract
This paper explores legal need and legal advice in England and Wales during the
COVID-19 pandemic. It uses the lens of vulnerability theory to examine the ways in
which this crisis exposed pre-existing fragilities between the state and its relationship
with the advice sector, and the individuals who experience social welfare problems. The
paper commences by exploring Fineman’s vulnerability thesis and its application to those
experiencing social welfare-related issues, as well as the vulnerability of the systems
operating to give advice. The paper then considers the specific context of the COVID-19
pandemic and the impact on needs, and the ability of the sector to meet these needs.
Drawing on policy documents, reports and three case studies from law centres in
England and Wales, it discusses the concept of legal need and the realities being expe-
rienced. These case studies assist us in being able to critically consider the topics of
vulnerability, changing needs and the role that technology is, and can play during the
pandemic and beyond. Lastly, the paper points to the need for a critical consideration
of the sustainability and format of legal advice in addressing legal need in the post-
COVID-19 landscape.
Keywords
Vulnerability, legal need, legal advice, social welfare law, technology
1
School of Law and Politics, Cardiff University, Cardiff, UK
2
College of Law, Australian National University, Canberra, Australia
Corresponding author:
Daniel Newman, School of Law and Politics, Cardiff University, Cardiff CF10 3AX, UK.
Email: newmandc@cardiff.ac.uk
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Discrimination and theLaw
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DOI: 10.1177/13582291211031375
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Newman et al. 231
Introduction
Increased demand for legal advice following the outbreak of COVID-19 has amplified
several of the existing challenges facing individuals experiencing social welfare law
problems, as well as the advice sector in England and Wales. For decades, this sector
has been subjected to an increasingly harsh funding environment under long-standing
austerity measures, and providers have been challenged to meet increasing levels of
demand following simultaneous retrenchments of legal aid and bureaucratisation of their
practices (see Cookson, 2013; Morris and Barr, 2013). It is unsurprising, yet remains
confronting, that unmet legal need has always been disproportionately experienced by
those who are the most marginalised or disadvantaged within society, and particularly in
relation to their interactions with society’s institutions. It is against this contextual back-
drop, this paper employs vulnerability theory, as theorised by Martha Fineman, as a lens
through which to firstly, examine the implications of the COVID-19 pandemic for legal
needs and the future sustainability of the advice sector, and secondly, to reimagine this
trajectory in a way that is centred around Fineman’s ‘vulnerable legal subject’. The
application of vulnerability theory in this way allows us to ground discussions in the
dual recognition of the precarious position of those who require legal help and also the
institutions that exist to provide such help, and in what formats this help can, or should
take during a global pandemic.
Firstly, this paper discusses the significance of Fineman’s (2013) theory of vulner-
ability, before demonstrating how the theory can be applied in a way that exposes the
existing vulnerabilities of individuals, social groups, and institutions, as well as to reflect
upon the respective roles of the state and its institutions in ensuring that citizens are able
to access required support when they experience social welfare law problems. Secondly,
the paper explores the context of legal need and legal advice in social welfare law in
England and Wales and uses vulnerability theory to reflect on the consequences and
implications of the COVID-19 pandemic. We use documentary analysis, drawing upon
available policy and workshop reports to explore the perceived impact of the pandemic
on social welfare law needs. Here, we demonstrate that this is not simply a case of
increased legal need among those population groups who have traditionally experienced
social welfare problems, but rather a situation in which there are a newly fragmented and
diverse range of legal needs, as the pandemic has affected people from several different
walks of life.
Further, we draw on three case studies accessed from law centres in England and
Wales during the UK’s first lockdown, which provide critical insight into how those
working in the legal advice sector have had to adapt swiftly to these increased and
changing legal needs, and do so through remote arrangements of working to provide
advice. Throughout this discussion, vulnerability theory enables us to consider all of this
in light of institutional and state responsibility, and reflect upon the extent to which the
advice sector is able to respond to these increased and changing legal needs, in light of
their existing infrastructural problems caused by limited resources and support from the
state. Lastly, the paper considers the sustainability of legal advice in a post-COVID
landscape and also highlights that the UK may benefit from what other jurisdictions
such as Australia are pioneering, utilising technology to provide legal advice. This
2International Journal of Discrimination and the Law XX(X)
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