The emergence of an ‘enforceable’ right to housing in France
In France in the second half of the twentieth century, there was a move from the protection of housing rights, which involved regulating relations between tenants and landlords, to a right to housing which promotes access to housing for those who are excluded. This has not, however, prevented the worsening of the housing exclusion and social exclusion situation. As a result of this unfortunate situation (from the early years of this century), decisive action was taken by associations, supported by the HCLPD (High Committee on Housing for the Disadvantaged), calling for the recognition of an ‘enforceable’ right to housing. Significant advocacy work combined with a favourable political climate led the French President to announce, at the beginning of 2007, the impending adoption of a major law to fight lack of housing and housing exclusion. Within a few short weeks, what is known as the ‘DALO’ law (Droit au Logement Opposable/Enforceable right to housing) was adopted on 5 March 2007. France was the second European country, after Scotland, to adopt a law that enforces the right to housing.
This law enabled a citizen in inadequate housing or deprived of housing to 'enforce’ their right to housing from the State. Administrative and legal forms of redress became available to establish both the violation of this right and the ensuing responsibility of the State to guarantee and implement the right to housing. A follow-up committee on application and implementation of the law was set up by the DALO law. For ten years, it has monitored application of the law, suggested proposals to the government and supported stakeholders in interpreting the law.
Slightly outside of the conventional legal meaning, the concept of ‘enforceability’ of the right to housing in particular – and social rights in general (such as the right to education in the past) – enables reiteration of a fundamental right; identification of the authorities responsible for complying with and implementing this right; and establishment of an appeals process so that citizens can invoke their right before a third party who can oblige the relevant authority to implement their rights (an independent committee and the judge in the case). In this way, the concept of ‘enforceability’ imbues the law with greater reach by creating an obligation of result (and not just an obligation of means) on the State, which is responsible for implementing the right to housing for all people suffering from exclusion.
What does the DALO law state?
The law provides that people who have not managed to find housing even though they meet the criteria for accessing housing or accommodation, and who fall within the categories specifically outlined in the law (which relate to the most vulnerable people who must of course be prioritised by government policies on housing), can take legal action.
The law creates categories of priority situations for allocating housing or accommodation. It is not however designed to address housing exclusion in its entirety, which currently affects about 4 million people in France (according to figures from the Abbé Pierre Foundation).
As such, those who are entitled to make an appeal under DALO include:
- People deprived of housing (living on the streets, in hotels, in their cars, etc.)
- People under threat of eviction without being rehoused
- People living in temporary accommodation for several months
- People in housing that is dangerous, unhealthy or unfit for habitation
- People in overcrowded or indecent accommodation, and who report the presence of minors or disabled people in the home
- People who have applied for social housing and have had no offer despite waiting an inordinately long time (each region sets the time period)
- People who have applied for supported accommodation and have received no offer of accommodation.
Any of the above can apply to make an appeal to an independent committee (comprising representatives from government, regional authorities, social landlords, associations, etc.). Members of this committee examine the appeal and evaluate the urgency of the situation within the framework of the law. The committee may acknowledge that housing the person in question is urgent and a priority. In this case, the decision obliges the relevant local government representative to offer a solution for housing adapted to the person’s needs within 3 to 6 months (based on the adequacy of supply on the region's housing market) or within 6 weeks for a suitable accommodation offer.
In the absence of a housing or accommodation offer being made within the stated timeframe, the person whose situation was deemed a priority and who the committee stated should be rehoused urgently, can take their case to the administrative court, for specific recourse allowed for under DALO. This court appearance is an opportunity for the judge to conclude that the State has not rehoused the person as ordered by the independent committee. The judge then makes a ruling ordering the State to provide housing or other accommodation for the person and their family, and also to pay damages to a national fund that is used, not to improve the housing supply (as was initially planned) but to finance social support measures which cases deemed priority by the DALO law may need to access housing.
In the absence of a housing offer, the person can also initiate action of a purely compensatory nature against the State representative in their region. If the State refuses to compensate the person for material, physical or moral damage issuing from the lack of an offer of rehousing, the State may be ordered by the judge to compensate the person.
Does the DALO law work as ‘leverage’ in guaranteeing the effectiveness of the right to housing?
Originally, the aim of this law was to drive the construction of suitable and affordable housing. The appeal mechanism established by the law tends to highlight that the applications are coming from a section of the population that is the most disadvantaged and the most excluded from housing. As a result, the requirements in terms of housing supply can be more easily quantified and considered, which has helped to orient government policy towards rehousing this section of the population. From an obligation that consisted of mobilising the available means for implementing a right (‘obligation of means’), this law represents a move towards an obligation of result on the State to guarantee the effectiveness of this right.
Ten years after the DALO law entered into force, it is time to take stock of how effective this law has been.
In 2016, the Minister for Housing entrusted the HCLPD with identifying ways to improve the DALO’s effectiveness. The study (click here to read the 2016 report), demonstrates the positive effects of the DALO law, which has led to more than 100,000 households being rehoused since its adoption in 2007. However, the number of households waiting to be rehoused has increased year-on-year and reached almost 60,000 in 2014.
In its report, the committee notes the significant changes in government housing policies over the past 10 years, particularly with regard to increasing the supply for the most disadvantaged households. The risk of judicial proceedings against the State has brought about this result. Nonetheless, it also points out a worsening in the housing crisis and a reduction in the number of households identified as ‘priority’ following a DALO appeal, as a result of increasingly restrictive practices of the committees responsible for processing the appeal.
The HCLPD calls for vigilance over the next number of years with regard to informing people and the professionals supporting them in their appeal; the lack of resources allocated to certain committees which prevents them from functioning properly leading to non-compliance with users’ rights; and improving the procedure for allocating social housing and better identification of the social housing that is ‘reserved’ by the State.
Effective implementation of the law still varies widely from region to region, with highly divergent local housing policies and committee practices.
The HCLPD also notes that the appeals mechanism itself and the work of the committees responsible for examining the appeals have highlighted failures in common law and, as such, they provide a monitoring function.
Towards progressive implementation of the right to housing in accordance with France's international commitments
Several UN instruments on protection of human rights were ratified by France. These intruments oblige party states to respect, protect and implement the fundamental rights guaranteed in the conventions. Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESC) guarantees the right to an adequate standard of living by providing, in particular, suitable housing. The content of this article and its essence are specified in CESCR's general observation no. 4.
Furthermore, the right to housing was enshrined as a fundamental right by the Court of Justice of the European Union, which monitors application of, amongst others, the Charter of Fundamental Rights of the European Union which stipulates that States must guarantee the right to housing assistance. Lastly, while the European Convention for the protection of human rights does not guarantee a home as such, the Court has suggested case law based mainly on the right to respect for one’s private and family life and prohibiting inhuman and degrading treatment.
The international conventions ratified by France provide that the rights will be gradually implemented by the State, particularly through the adoption of legislative measures. In this way, the adoption of the DALO law is a step towards the progressive implementation of the right to housing as a human right. The ‘progressive’ nature of these changes should in no way be used as an excuse by the French State to minimise its responsibility and to justify non-compliance with people’s fundamental rights, by not fulfilling its obligation of result: namely, ending homelessness and housing exclusion in France.
In France, while the DALO law represents a significant advance, the road to it being truly effective remains long. Note, for example, the European Court of Human Rights’ judgement against France for not having rehoused a family that had been identified as ‘priority’ under DALO several years previously (Tchokontio v France). The Court decided that the fact that the court decision was not carried out and the fact that the State was only compelled to do so through financial penalties paid into a national fund and not to the victim in the case, represented a violation of the right to an effective remedy (Article 6 paragraph 1 of the European Convention on Human Rights).
This reminds us of the importance of equipping such a law with adequate resources to ensure its effective implementation. It is not enough to adopt laws enshrining the enforceability of the right to housing; this will not in itself guarantee people’s rights. All stakeholders must act to gradually move towards effective implementation of the right to housing as a fundamental right, the cornerstone of respect for human dignity.
Ten years after adoption of the DALO law making the right to housing enforceable, there remain pressing issues with regard to informing people of their rights and providing the resources to ensure that these rights are recognised. The authorities and social landlords must remain active and vigilant with regard to developing and identifying a housing offer that is suited to people's needs.
By obliging the French State to meet an obligation of result from 2007, it was hoped that the DALO law would free up the necessary means to end homelessness and housing exclusion. Looking back on 10 years of the DALO law, we can only hope that France will continue in its efforts to definitively provide the means to gradually fulfil the obligation of result.