The Right to Housing: Ireland and Abroad

THE RIGHT TO HOUSING: IRELAND AND ABROAD

Lara O’Donohue

Introduction

Having a place to live is a fundamental requirement in every person’s life. International treaties such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic and Social Rights (ICESCR) have recognised housing as a fundamental social right. However, states differ in their recognition of housing as a right. In Ireland, despite consistent public support for the creation of a constitutional right to housing, successive governments have opposed this.1 The courts have also refused to recognise an unenumerated right to housing.2 This article will examine the approaches taken in South Africa, Scotland and Ireland, considering whether a constitutional right to housing should be adopted or whether it would have little material impact.

International Recognition of the Right to Housing

The right to housing is central to the exercise of other economic and social rights, as evidenced by its inclusion in the UDHR and the ICESCR. Access to housing impacts a person’s ability to access resources and opportunities and is a core element of personal life.3 Although Ireland has no domestic right to housing, it is a signatory to the aforementioned treaties. Art 25(1) of the UDHR recognises housing as a basic requirement and crucial element of human dignity.4 The ICESCR contains a right to an adequate standard of living in Art.11(1), explicitly including the right to housing.

By ratifying these treaties, states are expected to promote the rights contained within them.5 Ireland has undertaken to ensure that an adequate standard of living is provided to its citizens, including access to housing. However, these rights are not justiciable in an Irish court. Individuals cannot compel the state to meet their obligations under the

1 Rory Hearne, Housing Shock: The Irish Housing Crisis and How to Solve It (Policy Press 2020) 229. 2 EBS v Kenehan [2017] IEHC 604. 3 Chester Hartman, ‘The Case for a Right to Housing’ (1998) 9 Housing Policy Debate 223, 230. 4 ibid, 227. 5 Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations (1990).

treaties.6 Since there is no domestic right to rely on, there is no recourse available.7 While international acknowledgement and articulation of the right is important, it does not result in significant improvements for individuals if they are unable to hold the state to account.

For example, in O’Reilly,the plaintiffs sought to establish that the housing authority had a duty to provide them with accommodation, in this case, a halting site.8 However, the court held that there was simply a statutory duty to ‘prepare and adopt a programme’.9 The court could only compel the authority to review this programme. This is of no practical benefit to a plaintiff with immediate needs. This lack of practical benefits can also be seen in the O’Donnell cases.10 Ellen O’Donnell was a disabled woman living in completely unsuitable conditions. In 2008, the court recognised that this violated her rights under Art 8 ECHR.11 However, O’Donnell was still living in the uninhabitable accommodation up until an appeal was heard in 2015.12 While this appeal resulted in her being awarded a declaration for ‘moderate’ damages,13 considering that she had been living in these conditions for a decade, this seems like small consolation. Once again, Ireland’s treaty obligations did not result in actions being taken to benefit the individual.

South Africa

The South African Constitution was adopted in 1996, focusing on fundamental human rights for all.14 A right of access to adequate housing is contained in s26(1). The state has a constitutional duty to fulfil this right. If the state fails, the courts have the power to direct the government to make resources available to meet the obligation.15 However, the right is subject to the qualification in s 26(2), which states that reasonable measures must be taken, subject to the availability of resources.

6 Hearne [n 1] 227. 7 ibid. 8 O’Reilly v Limerick Corporation [1989] ILRM 181. 9 ibid. 10 O’Donnell and Others v South Dublin County Council and Others [2008] IEHC 454, Ellen O’Donnell v South Dublin County Council [2015] IESC 28. 11 O’Donnell and Others v South Dublin County Council and Others [2008] IEHC 454. 12 Ellen O’Donnell v South Dublin County Council [2015] IESC 28. 13 ibid [86]. 14 Mashiene Katlego, Kola O Odeku, ‘A critical legal perspective on the context and content of the right to access to adequate housing in South Africa’ (2020) 10 Juridical Tribune 90, 92. 15 ibid, 93.

One of the most influential cases in this area is Grootboom. 16 Here a group of people became homeless when they were evicted from their informal homes, located on private land. They had moved onto this land while they were on the waiting list for low-cost housing. They brought a challenge against the government for their failure to provide adequate housing. The court stated that the right contained in the constitution is a right of access, which means that the state is required to create conditions in which housing is accessible to all economic levels.17 Where people have the financial ability to afford housing, this right requires access to housing stock and legislative provisions for selfbuilds.18 Where they do not, the state must make provisions to provide housing for them. The court also noted that legislative measures alone would not satisfy the state’s duty.19 Action is required. The court found that the national housing programme was not capable of responding to those in urgent need. The state could not rely on their longterm goals in order to justify their failure to meet present needs.20 They were required to fund and implement relief measures.21

In Grootboom, the Court noted that it was constitutionally bound to ensure the right to housing was protected.22 This means that there is a minimum protective level afforded to the right. However, deference is shown to the executive and legislature through the reasonableness standard. The burden imposed on the state must be considered in light of the availability of resources. The court can compel the government to spend more on housing in a particular case. However, there may not be sufficient resources available to vindicate every person’s right. Irene Grootboom, the lead plaintiff in the seminal case, stayed on the patch of land granted to provide temporary relief until her death in 2008.23 Many of the other plaintiffs did not receive state housing until 2011, a decade after the case was decided.24

Scotland

16 Government of South Africa v Grootboom [2000] ZACC 19. 17 ibid [35]. 18 ibid [36]. 19 ibid [42]. 20 ibid [66]. 21 ibid [96]. 22 ibid [20]. 23 Matthew Wilhelm-Solomon, ‘Long Read: Irene Grootboom’s Unbuilt House’ (New Frame, 5th October 2020) <https://www.newframe.com/long-read-irene-grootbooms-unbuilt-house/> accessed 5February 2022. 24 ibid.

There is no constitutional right to housing in Scotland. However, the Scottish legislation concerning homelessness and housing is considered some of the most progressive in the world.25 The definition of homelessness is very broad, allowing more people to qualify for protection.26 Individuals living in overcrowded or unsafe conditions are considered to fall under the heading.27 Scotland also abolished the ‘priority need category’ model used in the rest of the UK in their housing policy.28 Once a person qualifies as ‘homeless’ under the prescribed definition, they are entitled to accommodation provided by their local authority.29 The need for housing is prioritised over other policy objectives, which is often not the case when a priority model is used.30 The priority model favours families with children when providing housing.31 However, this meant that the needs of single homeless people, in particular homeless men, were not met. By removing the priority system, all homeless people are entitled to the same treatment and entitled to housing. This shows a rights-led approach to housing.32 If this right is not satisfied, individuals can take judicial review.33

However, since the recession, there has been disinvestment in social programmes, including social housing.34 Even with progressive legislation enabling homeless people to access accommodation, without funding for housing, this promise goes unfulfilled. The legal obligation to provide homes only exists if there are houses available.35 Local authorities have a shrinking stock with which to fulfil this duty.36

25 Fiona King, ‘Scotland: Delivering a Right to Housing’ (2015) 24 Journal of Law and Social Policy 155. 26 ibid, 156. 27 Housing (Scotland) Act 1987, s 24(3)(d). 28 Beth Watts, ‘Homelessness, Empowerment and Self-reliance in Scotland and Ireland: The Impact of Legal Rights to Housing for Homeless People’ (2014) 43 Journal of Social Policy 793, 798. 29 ibid. 30 ibid, 803. 31 King [n 25] 157. 32 ibid, 158. 33 Mercy Law Resource Centre, Second Right to Housing Report: The Right to Housing in Comparative Perspective (2016) 12. 34 Douglas Robertson, Regina Serpa, ‘Social Housing in Scotland’ in Kathleen Scanlon, Christine Whitehead and Melissa Fernández Arrigoitia (eds), Social Housing in Europe (Wiley-Blackwell 2014) 49. 35 King [n 25] 161. 36 Robertson and Serpa [n 34] 57.

Analysing the Approaches to Housing

In all cases, the right to housing, whether constitutional or statutory, is not absolute but is subject to restrictions. The existence of a constitutional right does not guarantee that this right is respected and vindicated in reality. However, it does provide all citizens with a basic level of legal protection, which they can use to challenge the state’s policy or lack thereof.37 Similarly with a statutory right, legislation may give way to reality when it comes to the availability of social housing. It can be argued that the creation of housing rights does not provide a solution to the issues facing states regarding homelessness, as the fact that a right is recognised does not guarantee its fulfilment.38

However, there are advantages to having a legal right to housing. The existence of the right removes some of the discrimination that often exists in housing policy.39 Where a universal right does not exist, housing is often provided for those who are deemed to be more ‘worthy’ and less morally appealing applicants, such as those with criminal records or substance abuse issues, are neglected.40 Where the right exists, the right to housing is recognised as more fundamental than other policy objectives or concerns.41

In addition, legal rights empower the individuals who possess them. In Scotland, homeless people view themselves as ‘entitled rights-holders’.42 In comparison, Irish people receiving assistance are considered to be grateful beneficiaries.43 It is arguable that this mindset reinforces the existing social inequality.44 Individuals view themselves as entitled to less than more ‘responsible’ citizens, who do not require assistance. Housing is not viewed as a right, but a privilege. Where a legal right exists, citizens are more empowered.45

37 Mercy Law Resource Centre [n 33] 22. 38 Evadne Grant, ‘Enforcing Social and Economic Rights: The Right to Adequate Housing in South Africa (2007) 15 African Journal of International and Comparative Law 3. 39 Watts [n 28] 802. 40 ibid. 41 ibid. 42 ibid 804. 43 ibid 805. 44 ibid. 45 ibid.

Conclusion

Recognising a right to housing will not solve the issue of homelessness. However, recognition signals the importance that the state places on housing. It empowers citizens to seek action on housing policy. It also provides a justiciable floor of legal protection. There is consistent public demand in Ireland for housing to be recognised as a constitutional right. This call can only be resisted for so long.