FIDH v Ireland: Reflections on Taking a Collective Complaint

by Cecilia Forrestal
Community Action Network

Since 2009, Community Action Network (CAN)[1] has facilitated tenant participation in a human rights-based approach to housing. In so doing, we work directly with tenants as rights holders, to frame their housing issues as rights rather than as needs and to hold systems to account for identified failures to respect, protect and vindicate these rights. We also seek to understand the right to a home as being about much more than ‘bricks and mortar’, that it involves wide interrelationships between people, their homes, the communities and networks they live within, the services they draw on, and the sense of identity and belonging that comes with these things. 

FIDH v Ireland Complaint no 110/2014  

In July 2014, the International Federation for Human Rights (FIDH), a recognised accredited body lodged the collective complaint, FIDH v Ireland Complaint no 110/2014[2]. This was a significant moment in a long process of taking a human rights-based approach to housing issues for Local Authority tenants.

Working across a broad-based coalition of people with a deep interest in this area, the idea emerged of lodging a collective complaint against the State for its failure to meet its human rights obligations in relation to local authority tenants.  The broad coalition of people included, among others, Tenants First, CAN, NUI Galway, Ballymun Community Law Centre, the Department of Geography of NUI Maynooth, Irish Traveller Movement and Free Legal Advice Centres (FLAC). Detailed research on related complaints, the procedural rules and related issues as well as drafting by the Centre for Housing Law, Rights and Policy at NUI Galway was a key component in the formulation of the Complaint[3]. Although Ireland had not signed up to Article 31 of the Charter which relates to the right to housing, previous judgements of the Committee of Social Rights stated that the right to housing for families is of central importance to the family and the exercising of rights including economic, social and cultural rights[4]. On this basis, a collective complaint could be made in relation to housing. In March 2015, this landmark Collective Complaint against Ireland, outlining appalling and widespread sub-standard housing issues across 20 Local Authority housing estates, was deemed admissible for further investigation.

The substance of the collective complaint was that poor conditions and other issues on housing estates violated key articles of the Revised European Social Charter, to which Ireland is a signatory – including Articles 11, 16, 17, 30 either alone or in conjunction with Article E. These relate to the right to health, the right of families and children to have social, legal and economic protection and the right to protection against poverty and social exclusion. Supporting evidence included living testimonies produced in a film, desktop research conducted by a legal academic, community surveys conducted by local groups, scientific and technical reports on the structure of building and the nature and health impacts of spores and wastewater.  In summary, the complaint alleged:

 ▪ A failure to adopt Social Charter rights within legal, policy and administrative frameworks of housing for Ireland

▪ A major problem with the adequacy, habitability and suitability of named local authority housing estates

 ▪ The failure of regeneration programmes to respect housing provisions and other rights set out in the Social Charter

The Decision

In May 2017, the Committee of Social Rights issued the Decision on the Merits of the Collective Complaint FIDH V Ireland[5]. They found that Ireland had violated Article 16 of the Revised European Social Charter. This decision gives clarity to four key things. It finds that the Government has:

1. Failed to take sufficient and timely measures to ensure the right to housing of an adequate standard for a not insignificant number of families living in local authority housing
2. Failed to collect complete statistics on the condition of local authority housing for 15 years - since 2002. 
3. No national timetable for the refurbishment of local authority stock. 
4. Not completed a significant number of regenerations programmes, leaving many local authority tenants in substandard housing conditions.

What is particularly welcome is that the Committee found that persistent conditions like sewerage invasions, contaminated water, dampness and mould go “to the core of what adequate housing means.” Tenants have been living with these conditions for decades. They have been campaigning about them consistently, providing independent proof that these dire conditions are caused because of structural defects with their housing. They have been consistently told that the conditions were of their own making.  This decision tells tenants that they are not to blame for their housing conditions.  It is their landlord that has failed to provide adequate housing standards.

With regard to the alleged violations of Articles 11, 17, 30 and E, the Committee said in each case that the allegations had not been substantiated sufficiently – that there simply wasn’t enough substantial evidence to allow them to decide in favour of the tenants. For us this was a significant learning as we had not fully appreciated that for every article invoked, a whole body of evidence must be presented in relation to that article. So, although it is perfectly obvious to us that poor housing impacts on poor health, (and indeed we had some research to back that up), to be successful, we needed to include an analysis of laws and policies relating to health as well as independent medical evidence to prove our case. The same would be required to prove that poor housing contributes to poverty and so on. On reflection, we could produce the evidence on housing and in fact all we needed to do was to allege a breach of Article 16.

Placing People at the Heart of Change

Framing housing issues in human rights terms and facilitating rights holders to hold duty bearers to account for the failure to respect, protect and fulfil these rights is central to the human rights-based approach used in this campaign. It has been very encouraging to see the way in which the feelings of inadequacy and failure (so often associated with an individualised, isolated experience of inequality) have been replaced by a growing confidence in the tenants’ self-directed ability to ensure positive change. In part, this has been achieved by the sharp focus on human rights – understanding what one’s rights are, identifying who is responsible for breaches in those rights, and then knowing how to seek vindication of those rights. Placing people at the heart of change in this way helps to change the balance of power – between those who have it and those who don’t. Tenants in this process put themselves into a position of power – they acquired the knowledge, they mastered the language, they developed the competencies they needed to advocate effectively. They presented the lived experience in a compelling way; but they were able to back up that testimony with irrefutable statistics, expert scientific evidence and strong human rights-based argument. This meant that they could not be an easy pushover, and they were able, through the Collective Complaint, to require the State to address the allegations of human rights violations across a number of communities. This in turn has played a huge part in giving tenants a collective voice in challenging policy and practices, despite the absence of a representative tenant body. 

Slow Pace of Change

That said, the slow pace of change is an ongoing challenge. The collective complaint process took three years from the date of submission to the date of the decision. It can” go to sleep” for long periods, especially while the Committee of Social Rights is engaged in assessing merits or reports. Meanwhile, tenants continue to live in appalling conditions, and it can be very difficult to hold on to a belief that change is possible. Prior to the decision on admissibility, the challenge was to encourage tenants to engage with a process that, although simple enough on the one hand, relates to structures and systems that are far removed from their lived experience. The fact that any recommendation is not legally binding makes it even harder to convince people that the moral and political pressure gained from placing Ireland in a global spotlight is worthwhile.

It is imperative therefore that those leading such a process hold a powerful vision of change and use every opportunity to communicate this, celebrate achievements, use the decision as an advocacy tool wherever possible, publicly call on the State to be accountable and to  use every opportunity to submit updates and comments to the Council of Europe within the reporting system.

Broad Based Coalitions

This campaign was a huge coalition and would not have been as successful any other way. It did require detailed research by Centre for Housing law, Rights and Policy, and many drafts were circulated and agreed before the final submission. The core coalition partners included residents, community organisations in the local area and CAN, while other important members included the human rights and technical experts who validated the evidence and experience and helped place it in a larger context. In so doing they strengthened the hand of tenants to take and exercise power. The people involved had a passion for the campaign and a belief in the valid claims of the tenants. However, of equal importance was their ability and willingness to come in behind tenants, supporting them rather than speaking and acting on their behalf, and this was particularly valuable because it helped tenants to develop a stronger sense of themselves as citizens and of what they could achieve.

Media

The role of the media in shaping priorities for political action cannot be underestimated. Consistent coverage of appalling substandard housing conditions, a lack of effective remedy, waste of public money in terms of poor quality and inappropriate maintenance, serious and costly health impacts on children, adults and communities, communicated at many levels by tenants, by academics, by human, legal and housing experts has all contributed to building an accountability climate where there was none.  We dedicated time and resources to media training and support. Most of the areas had been the subjects of very negative media in the past (anti-social behaviour, drugs etc) and were very cautious on any involvement with media of any sort. We control our messages and rehearse in advance. Each event plays a key role in breaking the silence and shame associated with living in substandard housing on the one hand and helps build a dominant narrative that this reality is unacceptable in a modern democracy.