Access to Justice for Vulnerable and Energy-Poor Consumers

Just Energy?

Naomi Creutzfeldt, Chris Gill, Marine Cornelis, Rachel McPherson

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509939459
• Edition: 1
• Topic: Law
• Subtopic: Consumer Law
• Index: Law

How do ordinary people access justice? This book offers a novel socio-legal approach to access to justice, alternative dispute resolution, vulnerability and energy poverty. It poses an access to justice challenge and rethinks it through a lens that accommodates all affected people, especially those who are currently falling through the system. It raises broader questions about alternative dispute resolution, the need for reform to include more collective approaches, a stronger recognition of the needs of vulnerable people, and a stronger emphasis on delivering social justice. The authors use energy poverty as a site of vulnerability and examine the barriers to justice facing this excluded group. The book assembles the findings of an interdisciplinary research project studying access to justice and its barriers in the UK, Italy, France, Bulgaria and Spain (Catalonia). In-depth interviews with regulators, ombuds, energy companies, third-sector organisations and vulnerable people provide a rich dataset through which to understand the phenomenon. The book provides theoretical and empirical insights which shed new light on these issues and sets out new directions of inquiry for research, policy and practice. It will be of interest to researchers, students and policymakers working on access to justice, consumer vulnerability, energy poverty, and the complex intersection between these fields. The book includes contributions by Cosmo Graham (UK), Sarah Supino and Benedetta Voltaggio (Italy), Marine Cornelis (France), Anais Varo and Enric Bartlett (Catalonia) and Teodora Peneva (Bulgaria).

PART I

Access to Justice for Vulnerable and Energy-Poor Consumers

1

The Access to Justice Challenge

I.Introduction

This chapter is about access to justice and the barriers facing its realisation. The chapter begins by setting out what we have described as ‘the access to justice challenge’: the fact that meaningful access to justice is illusory for billions of people around the world. Despite access to justice being recognised as a fundamental right in international law,¹ a very significant gap exists between the ideal and the reality. Indeed, access to justice is perhaps the paradigmatic example of the need for a law-in-context approach; the gulf between ‘law in the books’ and ‘law in action’ is as far apart here as it is anywhere. The vast scale of the access to justice gap globally, measured in billions of people suffering exclusion, is reflected in the narrower concern of this book; namely, energy consumers suffering very substantial unremedied detriment and being highly unlikely to seek help for their problems. Having defined the scale of the problem, the chapter turns to consider the factors that underlie the gap between people’s problems and their effective resolution. The research literature on access to justice suggests a number of important factors, including the cost and complexity of accessing remedial procedures, demographic characteristics, individual cognitive processing, and ideological and socially produced preferences, all of which provide some pieces of the puzzle that help explain the access to justice gap. The chapter reviews all of these factors, using Fesltiner et al’s classic ‘naming, blaming and claiming’ model as a basic organising framework for discussing the multidimensional and clustered factors that explain limitations on access to justice.² Having done so, the chapter considers the particular issues facing energy consumers and the kinds of problems they encounter. The chapter argues that there are a number of distinctive features of the consumer relationship which present particular and additional barriers to accessing justice. The chapter then considers the concepts of vulnerability and energy poverty and the acute challenges that are faced by individuals and groups who fall within these definitions. Here we present some highlights from our data, which provide insights into the lived experiences of consumers and the barriers they face in accessing justice.

II.The Scale and Nature of the Access to Justice Challenge

There is a vast and growing literature on access to justice and chapter two will consider the theoretical dimensions of the concept. Here, the focus is on defining the scale of the access to justice challenge and the barriers to access to justice that have been identified in research. A recent global survey of 101 countries found that:

•49 per cent of people surveyed had experienced a legal problem in the previous two years;

•only 29 per cent of people who had experienced a legal problem sought any form of advice to help them better understand or resolve their problem, and those who did seek assistance preferred to turn to family members or friends;

•1.4 billion people have unmet civil and administrative justice needs.³

A report by the World Bank concluded that the figure was even higher and that around 5.1 billion people – two-thirds of the world’s population – lack meaningful access to justice.⁴ Interestingly, the World Justice Project found that the most common problems relate to consumer issues, housing, money and debt. Ramsay, surveying the research literature, confirms that in the Global North, money, debt and consumer issues are the most common types of justice problems faced by individuals.⁵

As will be argued below, most literature on access to justice is, in fact, concerned with access to lawyers and access to courts. However, the likelihood of people seeking any kind of external help when they experience a problem is low across the board: only 17 per cent of people surveyed by the World Justice Project took their problem to an authority or third party to mediate or adjudicate.⁶ In the specific context of the consumer sector, there is evidence of a similar lack of propensity to pursue justiciable matters. The Consumer Conditions Scoreboard for 2019, for example, found that while one in five European consumers experienced a consumer problem, only 5 per cent of those had recourse to an alternative dispute resolution (ADR) body.⁷ And, despite some of the wilder claims about the value of ADR in expanding access to justice, empirical reality suggests that the reach of ADR is limited to a narrow and privileged demographic: in a survey of 3,190 European consumers who had used ADR, Creutzfeldt found that the typical respondent was male, over 50, educated and employed.⁸ Another recent survey found strikingly similar demographics of consumers using ADR and small claims courts in the UK:

Our survey indicated that the characteristics of consumers that took a dispute to ADR or the court are very different to the general consumer population. Of the consumers who had used ADR, 69% were male, 69% were over 50 years old, 66% held a degree level qualification or higher, and 42% had a household income of over £50,000 … Consumers who had used courts reported similar characteristics.⁹

Overall, empirical data confirms that access to justice is uneven and typically reserved for the few, not the masses. Sandefur,¹⁰ for example, reviewing empirical enquiries about unmet legal needs,¹¹ argues that there is a vast amount of the population with unmet legal needs. These people typically have clusters of problems rather than one isolated problem, and the vast majority of justiciable problems are resolved outside the formal justice system. Further, studies show that there is an important connection between unresolved legal problems and broader issues of health, social welfare and economic wellbeing.¹² People who are disadvantaged and living in energy poverty, for example, suffer the consequences of a lack of access to justice in their everyday lives. This results in a vicious cycle of poverty, inequality and marginalisation. The burden of this justice gap falls disproportionally on the most vulnerable, including women, children, minorities and people with disabilities.¹³ As noted in the introduction, therefore, there is in practice a very sizeable gulf between aspirations around access to justice and the realisation of those aspirations. As Benöehr has noted,¹⁴ access to justice is recognised as a fundamental right in various international instruments, including the International Covenant on Civil and Political Rights (Articles 2 and 14), the UN Guiding Principles on Business and Human Rights, the European Convention on Human Rights (Articles 6 and 13) and the European Union (EU) Charter of Fundamental Rights (Article 47). However, this formal recognition has done little to change things on the ground for individuals, so that ‘consumers still face major barriers to enforcing their rights in practice’.¹⁵

Energy consumers are among those that are most likely to be excluded from accessing justice. The energy market, referred to by some as an ‘inherently flawed market’,¹⁶ features high levels of consumer dissatisfaction and a failure to meet consumers’ needs.¹⁷ The energy sector regularly comes out at the bottom of league tables rating customer experiences in various industry sectors.¹⁸ Indeed, in a recent European Commission Survey, 58 per cent of European consumers agreed that the electricity market in their country did not work well. The European Consumer Organisation (BEUC) has argued that: ‘Even after the adoption of several EU legislative packages, European consumers have often difficulties to effectively exercise their rights and therefore essential characteristics of a well-functioning retail energy market are still missing’.¹⁹ And, although available mechanisms of redress provide some level of remedy to the detriment estimated to be borne by energy consumers, there remains a considerable level of unremedied detriment in the European energy market: the total post-redress financial detriment in 2017 in the EU-28 was between €1.9 billion and €6.4 billion, as compared with between €2.4 billion and €7.2 billion pre-redress.²⁰

III.Understanding the Barriers to Access to Justice

The scale of the access to justice gap is therefore significant. As we will see, there is a range of factors that are linked to particular individuals’ and groups’ proclivity to access justice. Generally, however, it is important to understand the process through which justice is accessed in order to understand the factors which present barriers at various stage of that process. The foundational approach is Felstiner et al’s work.²¹ Their naming, blaming and claiming framework emphasises the social dimensions of disputing and seeks to provide a way of explaining how the problems individuals experience emerge (or, more commonly, do not emerge) as legal problems. The distance that lies between someone experiencing a problem and finding a remedy to it is considerable, and the general emphasis of the access to justice literature is on the multiple and complex overlapping factors that prevent the realisation of access to justice in practice. These factors have been summarised in various ways. For instance, Crawford and Maldano talk of epistemological inequality, socio-economic inequality, and legal market inequality as ways of explaining differential access to justice between individuals and social groups.²² In this chapter, we use Fesltiner et al’s framework as the basis for classifying the different factors.

The decision to follow this approach is not merely one of preference or convenience. Instead, we agree with Palmer and Roberts²³ that a failure to recognise and follow through on Felstiner et al’s insights about the processes through which disputes emerge is responsible for the often narrow focus on redress mechanisms that is displayed in access to justice literature and policy. Such a focus tends only to recognise barriers to ‘claiming’ and ignores the social, cognitive and cultural factors that often prevent disputes getting anywhere near a redress mechanism, regardless of its features. Indeed, as we shall see, many access to justice policies start from an opposite point of view: the problem is not that most disputes do not emerge, but that there are too many disputes and that they represent an unreasonable burden on the public purse. The policy problem is, therefore, conceptualised as being about managing demand and often focused on ‘sorting out’ the court system, whereas Felstiner et al’s framework suggests that the broader reality of access to justice problems (and the possible solutions to them) is to be found elsewhere. Of course, we do not suggest that questions around institutional design are irrelevant – clearly the types of mechanism (and their features) made available by the state to deal with people’s problems will have some effect on whether they are used or not in practice. We merely suggest that this is not the only consideration. Albiston and Sandefur refer to ‘bottom-up’ and ‘top-down’ approaches to access to justice, which consider both the demand and supply sides of the problem.²⁴ This is the approach we follow here, considering both the bottom-up views of potential justice seekers and the top-down perspective of the state seeking to respond through the provision of appropriate mechanisms of redress.

In the paragraphs below, we begin by highlighting some general issues that arise from the access to justice literature in relation to each of the naming, blaming and claiming stages. We then move on to look at the specific issues affecting vulnerable and energy-poor consumers.

A.Factors that Impact on People’s Ability to...