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THE ENFORCEABLE
RIGHT TO HOUSING
A priority that requires reassertion
Rapport public thématique
January 2022
2
Summary
The enforceable right to housing (Dalo) was introduced in the French Law of 5 March,
2007, and is a last resort for applicants who experience severe difficulties with housing. It
requires the State to house or rehouse households recognized as eligible as a matter of priority
and urgency. Although the State alone bears this responsibility, local authorities, social
landlords and the employer-funded organization
Action Logement
are obliged to help with
rehousing.
Seven criteria can confer Dalo eligibility:
the applicant is homeless;
the applicant is threatened with eviction without alternative accommodation;
the applicant has been living in social accommodation or a social residential hotel for
more than six months, or in transitional housing or a hostel for more than 18 months;
the applicant is housed in premises that are unfit for habitation or that are unsanitary
and dangerous;
the applicant is in inadequate housing, provided that either he/she is caring for at least
one minor child or disabled person, or that he/she has a disability;
the applicant is in overcrowded accommodation, provided that either he/she is caring
for at least one minor child or disabled person, or that he/she has a disability;
the
applicant has applied for social housing and been waiting for an “abnormally long”
time.
The housing offer devised by the State must be “suitable” in the sense of the Law, i.e. it
must meet the needs and characteristics of the household. When the State fails to fulfil its
obligations, it may be held liable, including liable to pay compensation.
Partially effective; on-going deterioration in Île-de-France
The Dalo is unique in Europe and across the world, and the number of recorded requests
has increased since it came into force on 1 January 2008. By the end of 2020, nearly 1.3 million
requests for recognition of Dalo eligibility had been submitted to the Departemental Mediation
Commissions (Comed) responsible for reviewing them.
Over 60 % of the requests over the period were recorded in Île-de-France. They now
represent 2.7 % of the total number of social housing applications (4.5 % in 2015). This
development reflects the increased stress on the demand for social housing. Although the
number of Dalo applicants is increasing, as a proportion of the overall demand for social
housing, the figure is decreasing.
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Movement in the number of Dalo recognition applications
between 2008 and 2020
Source: Court of Accounts, based on data from the DHUP The same household may make several applications
The percentage of favourable decisions handed down by the Mediation Commissions
was 34.5 % in 2019, compared with 25.0
% in 2008. The variations observed between
Departements cannot be explained simply by differences in individual situations and in the
rental stock. They also result from the disparate practices of the Commissions, which raises
the issue of lack of uniformity in applying the Dalo.
Being recognized as eligible for the Dalo is only
a household’s first step. This acquired
right is only effective if the State, who is alone responsible, can quickly offer housing or
alternative housing appropriate to the household’s needs. The audited figures, updated since
the Court’s last investigat
ion, still fall short of the commitment.
Between 2008 and 2020, 333,724 households were recognized as eligible for urgent and
priority rehousing under the Dalo, of which 62.8% benefited from an appropriate rehousing
offer from the State. However, 78,016 of them, or 23.4% of the total, were still not rehoused at
the end of February 2021. The situation has deteriorated since 2015: there were then 60,000
households waiting for an offer. It is particularly difficult in Île-de-France, where nearly a third
of the 65,000 households recognized as eligible for Dalo since 2008 are still waiting for a
rehousing offer from the State.
Households are almost exclusively rehoused in social housing, even though private
housing that is subject to an agreement can also be used.
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At national level, fewer than half of the households recognized as eligible for the Dalo
since 2008 have been rehoused within the timescales defined in the Law. The average
timescales contradict the notion of priority and urgent rehousing.
Movement in the number of favourable decisions and the recognition rate
Source: Court of Accounts based on data provided by InfoDaLo supplied by the DHUP. Data (incomplete) extracted on 24
February 2021 for the years 2008, 2009, 2010, 2011 and 2012 for Bouches-du-Rhône. Reading: number of favourable decisions
per year compared to the number of requests received. Some decisions may relate to appeals received in previous years.
The State’s responsibility increasingly called into question
Where the State’s
response is deficient, the legislator has provided two remedies: an
injunction for failure to act, with, if relevant, the imposition of a penalty; and an action for
compensation. They are used increasingly by households recognized as eligible for the Dalo
and waiting for an appropriate offer. Between 2015 and 2020, the State had to make penalty
payments of nearly €130 million. The rise in the number of households still waiting for an offer
is likely to increase these amounts. Litigation imposes a heavy burden on the administrative
courts, particularly in areas under stress where the judge’s intervention can have no influence
on the deciding factor: the supply of housing.
A combination of factors causing a low-grade blockage
The growing difficulty in accessing social housing is often cited by local actors but is not
the only obstacle to implementing the Dalo. Other factors come into play. The primary source
is the increase in the number of objectives assigned to local actors when they allocate social
housing. Since the Dalo came into force, new categories of priority beneficiary have been
created by a number of pieces of legislation.
These numerous directives have deprived the Dalo of its higher-priority character,
relegating it to the rank of one priority among others. One example is the still inadequate effort
made by local authorities and landlords to participate with the State in the rehousing work.
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The rating of social-housing applications is being standardized, and this may exacerbate
the risk of the Dalo losing its significance. The points allocation system is based on a certain
number of criteria and was developed within inter-municipal housing conferences to help the
allocations commissions to prioritize the requests. It should come into general use by the end
of 2023, with the aim of helping the allocation commissions to prioritize applications. While it
should normally only be a decision-making aid, it could, given the volume of requests,
significantly influence the order of applicants in the queue. None of the rules applied today
ensures that the Dalo’s higher priority will be taken into account.
A second set of difficulties relates to the excessive reliance on the State for the work of
rehousing households recognized as eligible for the Dalo. The State alone is legally
responsible, although it does not manage the entire housing stock. However, the Law requires
Action Logement
(since 2009), and local authorities and other landlords (since 2017) to
contribute at least 25% of their annual allocations to this effort.
Measuring each stakeholder’s contribution is difficult because the information systems
are not compatible and the data they hold is incomplete. Based on the estimates available, the
Court noted that the legal obligations were not being respected, particularly in stressed areas
such as Île-de-France.
At the same time, the State, which alone is liable if a household recognized as eligible is
not rehoused, does not use the penalty instruments provided by the legislator in a context
where dialogue with the social-housing stakeholders is already difficult.
A third set of difficulties relates to direct or indirect challenges to Dalo’s own legitimacy.
These are sustained by the imprecision or unsuitability of some of the eligibility criteria:
all requesting households are treated in the same way, whether or not they are
already in social housing. This lends credence to the idea that the Dalo replaces both
the normal obligations of social landlords and the ordinary law as regards transfers
within social housing;
people with disabilities are not considered in priority, unless their accommodation is
inadequate or overcrowded.
Some landlords may also use legally-recognized background information, such as the
need for a social diversity or insufficient resources, to refuse applications from households
recognized as eligible for the Dalo, and they do so without proposing alternative housing.
A fourth set of difficulties stems from the fragility of the Mediation Commissions. Although
their composition is more representative and although clearly the State services have tried to
train members and harmonize practices, significant disparities persist between Departements.
The chairmanship of such a Commission has few attractions.
Given their role, which is to grant certain households a right that can be enforced against
the State, then by comparison with other administrative Commissions, their skills must be
enhanced.
Finally, the lack of support for households is a source of difficulties both before they apply
for recognition (failure to claim, incomplete files) and after they have obtained the right (refusal
of a suitable offer).
At the end of this new assessment of the implementation of the enforceable right to
housing, the Court notes that difficulties it had already identified in 2015, particularly in Île-de-
France, have intensified. There is a risk that the Dalo will increasingly become a source of
growing disillusionment. For too many households, it is not yet an effective right.
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Although some of the problems are created by external factors (in particular an
inadequate offering of both private and social accessible rented housing), a change to the legal
framework and to the way in which Dalo is implemented in practice are necessary. To this end,
the Court makes thirteen recommendations with the aim of restoring the Dalo’s effectiveness.
These recommendations are structured around the following five objectives:
ensure the primacy of the Dalo;
refocus the Dalo to preserve its character as a last resort;
provide more support to households;
differentiate and simplify procedures;
make the stakeholders responsible.
They form a coherent whole, and the Court considers them indissociable if the
effectiveness of the enforceable right to housing is to be restored.
Summary of recommendations
In view of the persistent difficulties that it notes five years after its previous investigation,
the Court is defining a series of objectives and recommendations intended to restore the
effectiveness and the primacy of the enforceable right to housing, in accordance with the
legislator’s initial intention. These proposals include both legislative and regulatory
adjustments and measures relating to State services. They constitute for the Court a coherent
and indissociable whole.
Objective 1: Ensure the primacy of the Dalo
Although the French Law of 5 March 2007 gives households recognized as eligible for
the Dalo priority over all other priority applicants for housing or rehousing, the Court found that,
in areas where access to private housing and social housing is the most difficult, households
receiving a Dalo are too often considered as one category of priority applicants among others.
It is important to restore the primacy prescribed by the legislator.
1.
Harmonize the legal provisions so that if the Prefect designates a household with a
Dalo, this is equivalent to a rehousing order ((
French Government Department for
housing, town-planning and landscape [DHUP]
).
The Court recommends that the obligation of landlords to house Dalo beneficiaries be
clarified. The term “designation”, sometimes used in the French Construction and Housing
Code (CCH
), may be confused with the “designation” made by financial partners able to
nominate possible tenants when housing is allocated, and suggests that a refusal is possible.
The harmonization will aim to clarify the fact that if a household awarded a Dalo is designated,
this is equivalent to an injunction to the lessor to house or rehouse it.
The Court recommends amending accordingly the wording of the 9th and 15th
paragraphs of Article L. 441-2-3 of the CCH to indicate clearly that the designation of a
household by the Prefect is equivalent to an injunction.
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2.
Ensure that when social housing applications are graded, the primacy of the Dalo
is systematically recognized (
DHUP
).
In view of the standardization of the rating of applications for social housing, the Court
recommends ensuring that the methods of rating selected guarantee the primacy of
households awarded a Dalo. Until now there have been no prescriptive rules in this sense,
with a real risk that, in stressed areas, the rating systems adopted at the inter-municipal level
relegate the Dalo to the rank of one priority among others.
If the rating criteria are left to the choice of local actors, a Decree could provide that Dalo
beneficiaries be given a higher rating than the others in all the territories covered by the
allocation reforms.
3.
If an application from a Dalo household is refused on the grounds of low income or
of legislative objectives for social diversity, introduce into the Law an obligation for
the allocation committee to offer it alternative accommodation or an adjusted rent
(
DHUP)
.
Although the Housing Allocation Commissions (Caléol) must retain their ability to match
the proposed applications with the available housing, blockages where households awarded a
Dalo are refused on the grounds of their resources and without an alternative solution must
cease.
The legal or regulatory provisions must provide for the lessor’s obligation to offer other
housing as an alternative.
Otherwise, State representatives must use the substitute methods of direct attribution
already defined in the Law and currently not used, subject to the necessary adjustments to
facilitate their implementation.
Objective 2: Redefine the law to guarantee its character of last resort
After thirteen years of operation, some of the eligibility criteria need revision in order to
preserve the Dalo’s character as a last resort, and to prevent it becoming a means of
circumventing the ordinary law.
4.
For applicants already in social housing, remove the Dalo eligibility criterion of an
abnormally long delay in obtaining social housing (
DHUP
).
As an extension of its 2016 observations, the Court recommends that as regards this
criterion, households already in social housing and others be treated differently. Only the
second category keep this criterion.
The major advantage of occupying social housing in a stressed area, the specific
responsibilities of social landlords, including the State, and the difficulties that the State has in
these same areas in complying with its obligation to offer housing or rehousing offer no grounds
for considering that the two situations are identical. This removes the risk that the ordinary
legal procedures relating to transfers within the social housing stock are misused.
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5. Specify, in the Law, the two stages in the review of applications for Dalo
recognition: firstly, the verification that the household falls into one of the
categories provided for in the Law, and then an assessment of the urgency of the
requesting household
’s situation (
DHUP
).
The urgency of relocation must take precedence. The Court recommends that the 13th
paragraph of Article L. 441-2-3 of the CCH prescribe the requirement for the Mediation
Commissions (Comed) to review requests following these two stages.
6. Create a legal procedure to nullify the right before the Mediation Commissions
(
DHUP
).
The Court recommends that a procedure to recognize the nullity of the Dalo be put in
place, in order to deal with the situation where households have refused an offer that is suitable
in the sense of the regulatory provisions.
Such a procedure would harmonize the various means of nullification currently used in
certain regions, and clarify the precise number of households for which the State remains
responsible for applying the Dalo.
In this respect, the Court suggests basing the system on that implemented in Île-de-
France by the Regional and Interdepartmental Directorate for Accommodation and Housing
(Drihl). This requires the Departemental services to seek the Comed’s
opinion before notifying
households that the State considers itself released from its obligation towards them. It will be
necessary to strengthen Comed’s resources to respond to this additional workload.
Objective 3: Provide more support to households
Although the eligible households have fairly diverse profiles, a significant number of them
need social support throughout the stages of obtaining recognition of their eligibility for Dalo,
and until they are rehoused. This support ensures that they will find it easy to move into the
housing.
7. Systematically offer households support before they obtain Dalo recognition and
after they obtain it until they are rehoused (
DHUP)
.
In view of the difficulties caused by an absence of systematic support both before the
Comed’s decision and afterwards while waiting for accommodation or rehousing, the Court
recommends that the Comeds or the reviewing services systematically offer support both to
households requesting recognition of their Dalo eligibility and to those who have obtained the
right. The forms this support takes should be adapted to the household’s situation and call on
the different support bodies present in the area.
Objective 4: Differentiate and simplify procedures
Several measures can be implemented to simplify and hence streamline procedures for
reviewing eligibility, without adversely affecting the requesting households.
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8. Strengthen the chairmanships of the Mediation Commissions, strengthen their
resources and amalgamate the commissions least used (
DHUP, Regional Prefects
).
The Court recommends continuing the work of amalgamating the Mediation
Commissions in three complementary ways:
strengthen the status of the chairmen by assigning the responsibility to former
magistrates or legal professionals, as is already done for many other independent
administrative commissions. The question of the chairmen’s compensation must also be
debated, as the activity of certain commissions is reaching high levels;
train Comed members systematically, before they take up their duties and while they
are in office;
amalgamate the least-used Comeds at regional or even inter-Departemental level,
and also pool the means of instruction. The Departemental Prefect will remain legally and
operationally responsible, on behalf of the State, for the obligation to offer accommodation.
9. Remove from the Law the prior opinion of the mayor on the relocation of a Dalo
household (
DHUP, DGCL
).
The Court recommends deleting the provisions of Article L. 441-2-3 of the CCH which
provide that the State representative defines the perimeter within which housing will be offered
to a household recognized as Dalo eligible, “after consulting the mayors of the communes
concerned”.
This prior opinion is not requested for social-housing applications coming under the
ordinary legal procedure. It represents a tedious additional step for the State services and
appears in no way likely to promote the household’s integration into the commune. Negative
opinions, even if they have only an advisory value, can make it difficult for the State to carry
out the housing procedure successfully.
10. Abolish the requirement for a mandatory hearing before the administrative judge
when applying for an injunction aiming to establish the State’s failure to rehouse a
household recognized as eligible for the Dalo (
DHUP
).
The Court recommends the abolition of the mandatory public hearing when applying for
an injunction against the State the sole purpose of which is to establish the absence of an offer
of housing by the Prefect. Since the administrative judge simply notes the absence of an offer,
the hearing adds no value. This abolition would make standard the practice used during the
health crisis, and the administrative judge would retain the right to hold the hearing if he/she
considered it necessary.
However, this abolition would not affect applications for injunctions that aim to challenge
the suitability of an offer of housing made by the State. The judge’s decision may lead to the
loss of Dalo eligibility if the State’s offer is c
onsidered suitable, so that it is essential that the
parties have the opportunity to express themselves at a hearing.
Objective 5: Make the actors responsible
Although the State is the sole guarantor of the Dalo’s effectiveness, since the latest
legislative changes, the work of housing or rehousing households entitled to the right is also
the responsibility of landlords, local authorities and
Action Logement
.
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11. Add a provision to the Law extending to regional Prefects the option of proposing
rehousing outside the Departement, when the features of the territory make this a
feasible option, taking the household’s constraints into consideration (
DHUP)
.
The options open to the Prefect should be broadened. Rehousing between
Departements, currently an option only in the Ile-de-France region, must be extended to other
clearly-defined areas.
In areas where urban organization, transport networks and living areas extend across
Departemental administrative boundaries, this extension would make it possible to increase
the number of offers available to households.
The criteria for adapting the offer, and in particular the consideration of the location of
workplaces and schools, where relevant, would continue to apply, as they do now in Île-de-
France.
12. Add a provision to the Law allowing Departemental Prefects to impose financial
penalties on landlords who refuse without valid reason to allocate housing to a Dalo
household designated by the Prefect (
DHUP
).
The Court recommends establishing a right for Prefects to impose financial penalties on
landlords who refuse without valid reason either to allocate housing to a Dalo household
designated by the Prefect or to register their candidacy on the agenda of a Housing Allocation
Commission. The income from penalties would be added to the National Fund for Housing
Support (FNAVDL) and could be deducted proportionally from the penalty payments made by
the State for failure to rehouse. A simple solution would be advisable so that the procedure
does not become more complicated and hence rendered impractical.
This power to sanction would be additional to the power of substitution.
At the same time, a change to the wording of the 19th paragraph of article L. 441-2-3 of
the CCH appears necessary. This paragraph currently refers only to the refusal of an
allocation, whereas it would be better to refer to the absence of an allocation within the
regulatory period. It also refers only to the use of the Prefect’s priority applicant group
(
Contingent Préfectoral
) when the power of substitution is used, whereas now all
Contingents
must be able to be used.
13. Refine information systems in order to measure accurately compliance by local
authorities,
Action Logement
and landlords with their obligations for rehousing
Dalo households (
DHUP, local authorities, landlords
).
This recommendation was clearly identified by all the Court’s interlocutors, and
constitutes a general condition for the effectiveness of the reform mechanism proposed by the
Court.