By Chris Gill and Naomi Creutzfeldt
The authors have secured funding from the ESRC to spend three years investigating access to justice for vulnerable and energy-poor consumers in the European energy market. In this blog, they explain what the project is about and why it is relevant to administrative justice researchers and policymakers.
What is the project about?
Is alternative dispute resolution (ADR) resulting in more accessible justice? This project will address this question and, specifically, examine whether ADR provides access to justice for vulnerable consumers in the European energy market.
Consumer disputes are frequently subject to ADR: in 2008, 530,000 cases were referred to ADR in Europe. And yet only 43% of consumers report that ADR is easy to use. In this context, some have questioned whether ADR is meeting consumer needs. At the same time, debate about access to justice has shifted from a focus on demographic groups (e.g. the poor) to a broader focus on vulnerability. This more challenging concept is the focus of this research.
Why the energy sector? First, it is a sector where the European Union has mandated ADR as a means of promoting access to justice. Second, energy consumers are particularly prone to detriment, with 8.9 million problems experienced in the UK in 2015. Third, the consequences of detriment are severe, with 10.8% of the EU’s population living in fuel poverty. Fourth, energy consumers are particularly at risk of vulnerability. Fifth, ADR is an explicit means through which policymakers are seeking to tackle vulnerability. This sector is, therefore, an important site at which access to justice, ADR, and vulnerability intersect.
The research builds on existing scholarship and its major contribution will be to literature on the role of ADR in access to justice. ADR proponents say it is cheaper, quicker, more accessible. Critics question how accessible it is and whether it provides access to settlement, not justice. The research will also contribute to literature on dispute system design (DSD) and consumer vulnerability, by exploring how ADR design affects access to justice for the vulnerable.
The research will use mixed methods and investigate six European countries with significant national variations in policy and practice. This design has been developed in partnership with the National Energy Ombudsman Network.
Who might benefit from the research
The proposed research will be of interest to scholars working in the fields of law, sociolegal studies, business management, economics, political science, and sociology. Access to justice is strongly associated with sociolegal traditions, but its role in promoting market efficiency, business regulation, and public accountability mean that it is also of interest to those studying business, economics, and political science. Similarly, vulnerability is the subject of an interdisciplinary scholarship concerned with understanding social exclusion, social justice, and poverty, frequently drawing on sociological perspectives. The proposed research, therefore, contributes to several fields of academic enquiry.
The potential for impact
All of us will be vulnerable at some stage in our lives and all of us are likely to encounter problems that require redress. Our research will, therefore, have an impact upon the public, as well as specialist audiences such as ADR bodies, policymakers, regulators, consumer advisers, and energy providers.
ADR providers: ADR providers are currently struggling with the problem of widening access and acting on consumer vulnerability. ADR providers will be amongst the prime beneficiaries of the research, which will provide empirical data on current practices and on new policies that can be developed to improve access to justice for the vulnerable. Providers will be actively involved in the project and will co-produce an online toolkit, as well as pilot the policy recommendations of the study.
Policymakers, regulators, and consumer advisers: This project will provide policymakers, regulators, and consumer advice organisations with data that will allow for the future development of evidence-based policy. In particular, understanding how dispute system design and broader institutional contexts affect access to justice for the vulnerable will allow legislators and regulators to develop policies based on consideration of comparative best practices across Europe. A particular gap at present is in exploring how broader systems of consumer protection can contribute to the accessibility of redress schemes for vulnerable people.
Energy providers: Energy providers will benefit from the research by gaining a better understanding of their consumers and their journeys through the redress system. Although the accessibility of internal redress processes is not considered explicitly in the research, many of the findings will be transferable to other complaint mechanisms. As energy providers come under increasing regulatory pressure to make provision for vulnerable consumers, the link between vulnerability and redress is one that will grow in importance. Energy providers will therefore benefit from data about the vulnerability of their consumers and from the toolkits developed in this research.
Public: This project’s ultimate aim will be to help enhance access to justice and develop measures to ensure that vulnerable people are provided for in relation to ADR. This will improve the functioning of the energy market, leading to fuller participation, and resulting benefits in terms of social justice and economic development.
Implications for administrative justice research
While the resolution of consumer-business disputes is not universally considered an administrative justice matter, there are a number of reasons for considering it as such.
Particularly in regulated markets involving privatised utilities, the role of government remains central in the regulation of industry and the protection of consumers. The large power imbalances between consumers and energy companies and the crucial importance of energy in meeting people’s most basic needs mean that a strong public interest dimension is preserved. While the relationship with the state is now an indirect one, mediated via consumer contract and regulation, problems encountered by energy consumers often raise issues of human rights and strike at the heart of social justice.
At the same time, with some areas of government decision-making now delivered under contract by private companies, the public or private nature of the provider is no longer central to determining whether the relationship between an individual and a provider should be considered as speaking to the relationship between citizen and state or between consumer and business. Our view, then, is that in exploring access to justice in the energy sector we are dealing with an administrative justice issue.
Even if this argument is not accepted, we hope that administrative justice researchers and policymakers will be able to benefit from our research, given the cross cutting nature of issues such as inequity in access to justice, the growth of ADR, and the design of dispute systems.
The project will begin in September 2017 and we plan to hold a series of stakeholder events over the three years of the research. This will culminate in an international end-of-project conference hosted at the University of Glasgow. For updates, please follow our blog and twitter updates.
About the authors:
Dr Naomi Creutzfeldt is Lecturer in Law at the University of Westminster. From 1 August, Dr Chris Gill will be Lecturer in Public Law at the University of Glasgow.
Link to project website: https://esrcjustenergy.wordpress.com/ (goes live in September 2017)
Link to Twitter @ESRCjustenergy
Really important project. I look forward to learning from it.