ODR and Assisted Digital Support: at last some research

Dr Denvir, Director Centre for Legal Innovation, Ulster University

A recent report tackles a key problem for those engaged in implementing online courts. How can you make digital processes accessible to those who might be unable or unwilling to use them? England and Wales is developing its own answer to this – a policy of assisted digital support which is explained in a blog from Her Majesty’s Courts and Tribunal Service (HMCTS). The research is from a team under Catrina Denvir for the Civil Justice Council via University College, London (). It is an important contribution to global discussion of this topic and has been already picked up around the world – for example in Australia. The report is, however, dense; written for a domestic audience; published by a judicial body; and, consequently, may be hard to appreciate, particularly for those in other jurisdictions.

Below is a crib in Q and A form to encourage you to read the original.

What is ‘Assisted Digital Support’?

The report opens with a section on  the ‘policy context’. This places developments in the courts within the Government’s overall Digital Strategy. Alas, it takes us straight into some of the initials and jargon that readers need to master. The strategy is led by the Government Digital Service (GDS) and incorporates a commitment to user-centric design and ‘concurrent modes of delivery (at least in the interim)’. This involves some degree of ‘Assisted Digital Support’ (ADS). This concept is, thus, not limited to court strategy and takes different forms for different agencies, departments and institutions. Thus, the Ministry of Justice and HMCTS have adopted a limited view: ‘In contrast to some other departments, HMCTS has also made clear that online (proxy) form completion by face-to-face service centre staff is prohibited and the ADS service provided is not intended as a digital inclusion pilot’. The limitation to assistance with digital process rather than digital outcome (the actual form completed) is important.

What is the context of Assisted Digital Support in courts and tribunals?

A £1bn courts and tribunals reform package was announced by the senior judiciary and Lord Chancellor in September 2016 to be financed by court sales ). A fortnight ago, HMCTS published a list of over 50 separate projects that make up this package (). This includes projects relating to family cases, social security and employment tribunals. Rather oddly, it does not explicitly refer to online small claims though these were the major focus of preliminary judicial study. The disposal of court assets has become controversial in its own right for the obvious reasons.

The actual content of most of the programme is not only uncontroversial: it is actively desirable. The research refers to but one part of the digital strategy; the cross-cutting theme described in the latest summary as ‘Providing support to members of the public (including litigants in person) who have limited digital capability or who are unable to access resources and information digitally – including web-chat, telephone and face to face support.’

Before we get into more detail, remind me again of Dr Denvir’s main point.

That users undertake a range of activities online is not to say that they have the capability to undertake legal processes online. Digital capability is not the same as legal capability and both forms of capability are likely to be required to successfully navigate an online court.’

Plus, digital assistance has to be well thought through; reflect real need; and be monitored to ensure its effectiveness.

How does the government assess digital capacity?

It has a number of different scales. The Governmental Digital Service divides users into nine groups – ranging from ‘never had, never will’ (1) to ‘expert’ (9). The Department of Work and Pensions simplifies this to ‘Unaware, Unready, Uninterested and Unable’. The Revenue go for a different four part segmentation. The Ministry of Justice says that it understands its ‘customers’ in three categories according to age and general position – younger, mainly single; young and middle-aged; and older. It is not entirely clear how helpful it is to categorise under sub-headings like ‘comfortable aspirers’ and ‘diverse urbanites’ but it does. Critical to its analysis is that the Ministry ‘concluded that most of those who need justice services have some level of digital capability and engagement; “the focus for digital transformation is therefore on providing better services, but also encouraging those who already use the Internet to extend their online activity to usage of government digital services.”’

How does Assisted Digital Service work in practice?

We don’t really know. There have been only two trials in other areas. 5 per cent of Isle of Wight voters went to their public libraries for assistance with a digital census and 37 per cent wanted help with digital rural payments. Interestingly, departments produce different widely different estimates of need. The Revenue expects 15 per cent of taxpayers to lack access and capability, 1 per cent to lack access and 23 per cent with access but without the requisite capacity. The Department of Work and Pensions and the butt of Ken Loach’s award-winning film I Daniel Blake on its inhumanity, estimates need at 5 per cent for universal credit applications. Student Loans figure 7.5 per cent for its presumably a fairly literate section of the market. The problem is less with access to the internet than with the skills to use it for legal matters.

Dr Denvir puts some weight on a specific study of legal needs and capacity conducted in 2014-5 – the Legal Problem and Resolution Study (LPRS): ‘Two measures of online capability were developed for the purpose of this study, drawing on data available within the LPRS. The first ‘Basic Online Skills’ relates only to the range of activity undertaken online, whilst ‘Basic Digital Skills’ relates to diversity of online activity and respondents’ confidence in identifying reputable sources of information online.’ Her conclusion is that ‘On the basis of these measures, 6% of those with civil justice problems lack ‘Basic Online Skills’ and 14% lack ‘Basic Digital Skills’. For actual/potential court and tribunal users, the figures indicate that 4% will lack access and 11% will lack ‘Basic Digital Skills’.’

There is an important addition to this because the digital programme is intended to cover not only courts but tribunals, specifically those relating to social security. Dr Denvir found that ‘certain socio-demographic characteristics were associated with higher rates of digitalexclusion. Notably, those reporting an income of less than £15,000 a year, those living in social housing, older respondents, those in receipt of benefits, and those with physical or mental ill-health reported higher rates of digital exclusion and/or lower levels of capability than the average rates reported by those with a civil justice problem.’ In other words, you would figure that social security cases will provide more than average difficulties.

What degree of assistance is currently envisaged?

‘HMCTS has outlined plans to provide support access points (SAPs) for those without Internet access. They intend to supply face-to-face assisted digital support in appropriate local settings, such as libraries and community hubs, in preference to court and tribunal hearing centres. SAPs are to be delivered by Good Things Foundation via their Online Centres network.’ This consists of ‘around 5,000 [outlets] across the UK, including libraries, Citizens Advice and community hubs. There is no charge to the end user for this service.’ An HMCTS blog also reported that ‘Telephone support is being delivered by HMCTS teams’.

Any specific issues on the technology?

The overwhelming majority of people, it is generally agreed, can get access to the internet either directly or through family and friends. However, that by itself, will not be enough. ‘Although mobile phone applications are increasingly able to create ‘scanned’ versions of documents from phone cameras, e-bundles are subject to evidentiary requirements and must include page numbering, hyperlinks, indexing and document compilation. Digital exclusion must be conceptualised as extending beyond just Internet exclusion/capability, so as to include exclusion to the software or hardware (such as scanning tools and PDF compilation software) required to interact with an end- to-end digital court system. Though the extent and nature of the exclusion that may arise can only be fully understood once HMCTS/MoJ publishes further details regarding proposed systems (and their integration).’

The point about  access to a scanner and a capacity to produce documents to court standards is a serious one.

What are the issues of users’ physical capacity?

These are likely to be of particular importance in social security and personal injury clams. ‘It is important to consider that it is not just lack of access or lack of experience using the Internet that may act as a barrier to digital service use. To date, little has been said about the role that ADS will play in helping people with other sorts of difficulties who may not be able to engage with systems as they are currently designed. These conditions might include:

• Single or Multiple disabilities: someone who is deaf or has low vision might benefit from captions for audio, but only if these captions have adjustable size and colour; • Health conditions: some users may experience fatigue, pain, or other symptoms that could have an impact on the duration or extent of their use of the web; • Changing abilities: the same user may have recurring/differing impairments which requires them to have access to particular accessibility features on one day, but not on another; • Temporary impairments: such as those that occur due to an accident, surgery, or medication. They may not know how to use accessibility features/which features are available to them; • Situational limitations: loud environments may make it difficult to hear audio, bright sunlight may make it difficult to view a screen.’

What about the relationship of legal and digital capability?

A flurry of initials breaks out at this point. The basic point is that ‘legal capability and attitudes to law’ reflects a number of issues such as gender, social status and educational attainment.

As the report puts it, ‘GLC, LEF are shown to be higher and LAX shown to be lower amongst respondents who report having someone to rely on when faced with a problem, with personal experience and the experiences of friends and family influencing confidence and attitudes to the law’ where GLC is  higher general legal capability, LEF is legal self-efficacy and LAX is not an airport but legal anxiety.

What is the problem with separating out digital from legal assistance?

‘It is important not to conflate digital and legal capability as this risks two possible outcomes. The first is that the legal complexity of the system is not adequately addressed and this represents a missed opportunity to develop a digital system that is truly responsive to user needs and to promote access to justice. The second is that advising the public that they do not need legal knowledge to complete a digital service risks users taking that instruction at face value, with consequences that may range from rejection of their claim (and several hundred pounds lost in administrative fees), through to contempt of court, or the inadvertent signing away of rights. More generally, it constitutes a bold assumption that legal knowledge and therefore legal advice or representation is of no great importance.’

What does the report draw out as the lessons?

  1. make it clear to users what assisted digital services are;
  2. provide users with appropriate information;
  3. ensure the adequacy of ADS funding and staff training;
  4. enhance the usability of systems;
  5. keep users informed as to the progress of their claim; and
  6. evaluate the service within agreed service evaluation metrics like ‘call waiting times, expected v actual users, number of aborted calls, number of unanswered calls, repeat contacts’.

Any interesting politics to this report?

You might note that it has been published by the Civil Justice Council, a judicial body () whose website has just been transferred away from gov.uk to judiciary.uk to emphasise its independence. Sir Geoffrey Voss, the Chancellor, in a speech a couple of weeks said ‘Her Majesty’s Courts and Tribunals Service (“HMCTS”) is, in effect, a joint enterprise between the government and the judiciary’. Sir Geoffrey is generally a rather more fastidious lawyer . The legal position of HMCTS is clear: it is an executive agency of the Ministry of Justice () and part of the executive.

There is tension between the executive and the courts in most jurisdictions. Sir Ernest Ryder is President of Tribunals and has been a prominent figure in the reform programme. Latterly, he has begun to be critical of various aspects, notably the lack of research. Back in May, he said: ‘If we are to manage a digital workload and lead digital working practices we need better governance arrangements with HMCTS. That is the unfinished business of the 2005 constitutional settlement. We have to manage our functional and formal separation of powers. In any event, modernisation casts a spotlight on our existing arrangements i.e. the essential operational means by which we bring the digital world into the justice system. As judges involved in the governance of HMCTS we must do our utmost to inform, collaborate and scrutinise what is done in our name and modernisation will require better ways of undertaking that function.’

It is said that HMCTS was not too keen on the Civil Justice Council getting involved on what it sees as its turf. But, that is just gossip.

What is the general – as opposed to the specific – lesson of this report?

Research, evaluation and the monitoring of online provision (as for all judicial innovation) is nationally crucial and internationally important. Dr Denvir’s demonstration has done us all a big favour. If you haven’t yet done so, you should read it.

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