The right to housing is recognized as a fundamental right in France. However, many individuals recognized as a priority under the Enforceable Right to Housing (DALO) still wait several months, or even several years, before benefiting from housing adapted to their situation. Indeed, the latest public report on the effectiveness of the enforceable right to housing denounced the fact that many families recognized as a priority and thus eligible for the DALO scheme were still not rehoused. This reality raises an essential question: can the State be held liable when it fails to fulfill its rehousing obligation?
In a ruling delivered on July 13, 2016, and two rulings on December 16, 2016, the Conseil d’État clarified the State’s liability regarding the application of the DALO scheme. Indeed, through several important decisions, the Conseil d’État specified the conditions under which the State’s liability may be incurred, as well as the methods for compensating the individuals concerned.
DALO: A Right Enforceable Against the State
Created by the law of March 5, 2007, the Enforceable Right to Housing (DALO) allows individuals facing serious difficulties in accessing decent housing to have their priority status recognized by a mediation commission.
When this commission deems the request well-founded, the State has a legal deadline to offer housing adapted to the applicant’s needs. This obligation constitutes a true obligation of result: it is not enough for the administration to take steps; it must actually enable the rehousing of the person recognized as a priority.
In practice, this obligation is far from always being respected. Real estate market difficulties, the lack of available social housing, and the saturation of certain territories partly explain these delays. However, these difficulties do not exempt the State from its legal obligations.
A Regularly Denounced Failure of the State
Various reports dedicated to the application of the DALO scheme highlight a concerning situation.
Every year, several thousand households recognized as a priority remain without a solution despite favorable decisions obtained from mediation commissions. Some families thus continue to live in unsanitary, overcrowded, or precarious housing, or are forced to be housed long-term in emergency structures.
This lack of rehousing directly infringes upon the right to housing recognized by law and exposes the individuals concerned to particularly difficult living conditions.
Faced with these failures, many DALO beneficiaries have initiated legal proceedings to obtain a judgment against the State and compensation for the damages suffered.
State Liability in the Event of Failure to Rehouse
The Conseil d’État reiterates that when the administration fails to respect its obligation to rehouse a person recognized as a priority, its liability may be incurred on the grounds of fault.
In other words, as soon as the legal deadline has passed without a suitable housing offer being proposed, the State commits a fault that may give rise to a right to compensation. Recourse following the State’s failure to meet its obligation of result leads applicants to seek compensation for the harm they have suffered on the basis of liability for fault.
This liability does not depend on demonstrating a particularly serious fault. The simple failure to comply with the legal obligation is sufficient to characterize administrative fault.
Applicants can then petition the administrative court to obtain compensation for the consequences of this failure.
Clarifications Provided by the Decisions of the Conseil d’État
In these cases, the Conseil d’État provides clarifications on the methods for assessing said damage.
Henceforth, the idea of global prejudice has been adopted:
The assessment of prejudice only takes place with respect to the DALO applicant, while taking into account, however, the number of people composing the household. Furthermore, the concept of presumption of prejudice is put forward, and with it, that of presumption of disturbance in living conditions. The decisions rendered in July and December 2016 are of major interest as they specify the criteria for evaluating the prejudice suffered by DALO beneficiaries.
Before these decisions, administrative courts sometimes adopted different evaluation methods, creating a certain degree of legal uncertainty.
The Conseil d’État thus established several principles intended to harmonize this assessment.
The Concept of Global Prejudice
The first clarification concerns the way in which the damage is evaluated.
The administrative judge now considers that the prejudice must be assessed globally.
Compensation is awarded only to the applicant who has obtained priority status recognition under the DALO. However, the judge takes the household composition into account to assess the extent of the disturbances suffered.
Thus, a large family living in unsanitary or cramped housing may see its prejudice evaluated more significantly than a person living alone, even if the beneficiary of the compensation remains the initial applicant.
This approach allows for a better consideration of the concrete reality of the living conditions of the families concerned.
A Presumption of Prejudice
The other essential contribution of these decisions lies in the recognition of a presumption of prejudice.
The Conseil d’État considers that the simple fact of not being rehoused despite a favorable decision necessarily results in disturbances in living conditions.
The applicant therefore no longer has to demonstrate in detail all the psychological, social, or material consequences resulting from this situation.
Prejudice is presumed as soon as the State has failed to perform its rehousing obligation.
This development considerably facilitates compensation claims, as it lightens the burden of proof placed on the victims.
Compensation Often Deemed Insufficient
While these jurisprudential advances constitute better protection for DALO beneficiaries, their practical effects remain limited.
Indeed, the sums awarded by administrative courts generally remain modest.
Compensation varies according to the duration of the State’s failure, the composition of the household, the housing conditions, and the specific circumstances of each case. Nevertheless, they often remain very far from the difficulties actually encountered by the families concerned.
Many observers thus consider that these financial penalties have only a weak deterrent effect on the administration.
The initial objective of the DALO scheme was primarily to guarantee effective access to housing and not to provide simple financial compensation when this right is not respected.
The Condemnation of France by the European Court of Human Rights
The push for a measure intended to compel the State to comply is hindered by the very modest sums allocated.
The limitations of the French system led some applicants to petition the European Court of Human Rights (ECHR). In view of these limitations, the referral to the European Court of Human Rights resulted in the condemnation of France in the case of Tchokontio Happi v. France in a ruling delivered on April 9, 2015.
In its ruling in Tchokontio Happi v. France, delivered on April 9, 2015, the Court condemned France for failing to execute a final decision recognizing the applicant’s right to rehousing.
The ECHR considered that the prolonged failure to execute the decision infringed upon the right to an effective remedy and disregarded the obligations incumbent upon the French authorities.
This European condemnation serves as a reminder that administrative decisions granting DALO benefits cannot remain without effect. They must be followed by concrete execution within a reasonable timeframe.
This ruling also increased the pressure on the French State to improve the effectiveness of the scheme.
What Recourse for DALO Beneficiaries?
When a person recognized as a priority is still not rehoused despite the expiration of the legal deadline, several actions can be considered.
They may seek the enforcement of the rehousing decision before the administrative judge so that the State is compelled to respect its obligations. They may also initiate a compensation claim to obtain redress for the damages resulting from this failure.
As each situation is unique, it is often recommended to be accompanied by a lawyer proficient in administrative litigation and housing right appeals.
Case Law that Strengthens Applicants’ Rights
The decisions of the Conseil d’État of July 13 and December 16, 2016, mark an important step in the protection of DALO beneficiaries.
By establishing the concept of global prejudice as well as a presumption of disturbance in living conditions, the High Court facilitates compensation for individuals who are victims of State inaction.
However, the question of the effectiveness of the right to housing remains entirely open. The low amounts of compensation and the persistent rehousing difficulties show that the recognition of a right is not always sufficient to guarantee its concrete exercise.
Legal representation by a lawyer can then prove decisive in asserting one’s rights, obtaining the execution of court decisions, and, if necessary, holding the State liable when it fails to meet its obligations.
