It has never been more important to recognise vulnerability

This article was first published in The Scotsman on 31 August 2020

Last month, the Financial Conduct Authority set out draft guidance to help financial services firms do more to protect vulnerable consumers and ensure they receive positive outcomes. The guidance recognised that we all have the potential to be vulnerable in difficult or unfamiliar circumstances. We may feel we have little control over what is happening to us, or that we don’t fully understand the implications of the decisions we are being asked to take.

Of course, this applies just as much to legal service users as to financial services consumers. In fact, perhaps even more so, since so many legal transactions could be characterised as distress or involuntary purchases. The circumstances in which we need legal advice and representation are often those where we are already at risk of vulnerability.

The SLCC often sees complaints from consumers who didn’t feel that the communication with their lawyer took into account their distressed or vulnerable situation. Consumers who are vulnerable are often less likely to challenge or question the actions of a legal professional. The real, or perceived, power imbalance between a lawyer and client can lead people to agree to a course of action that may not meet their needs.

Last year the SLCC Consumer Panel published Consumers at Risk of Vulnerability, a guide designed to help practitioners and regulators think about how legal services can meet the needs of consumers at risk of vulnerability.

At the SLCC, we have been using the Consumer Panel’s guide to help us improve the way we engage with consumers when they come to us, and to make sure that our service is accessible to everyone who needs it. We want to provide equitable access to our complaints service, recognising that some people will need more support to achieve that.

The guide is also a useful tool for practitioners who want to think further about how to recognise and support legal service users who may be vulnerable. It outlines reflective questions for firms and practitioners to consider in assessing how they can do this, and it specifically tackles the challenging impact of the power imbalance between lawyer and client. With so many people finding themselves in vulnerable situations, not least due to the impact of the pandemic and associated recession, it has never been more important for all of us to consider how we recognise and consider vulnerability, and what we can do to support those who seek our help.

This year, the Consumer Panel’s work on vulnerability had an influence beyond legal services, when the Scottish Parliament drew on the Panel’s work to inform the Consumer Scotland Act. This enhanced the new consumer body’s focus on support for vulnerable consumers – those who are at greater risk of harm, or have significantly fewer or less favourable options. Crucially, the Act recognises that this could be because of their individual circumstances as well as their characteristics.

Recognising potential vulnerabilities is crucial to providing services that truly meet the needs of our clients, customers and service users. Doing so can be challenging, but crucial if we’re to ensure that everyone has access to justice, the legal advice they need, and the opportunity for redress when things go wrong.

The guidance can be found on the Consumer Panel page of the SLCC’s website.