Can a city council end up in court for neglecting homeless people?

Barcelona"In theory, it's an obligation for city councils, but, as we've seen in Badalona, ​​some choose not to." Political scientist Alba Lanau, professor and researcher at Pompeu Fabra University (UPF), laments that in practice, local administrations can get away with failing to fulfill their obligations to assist the homeless. The law establishes the minimum standards that the administration must guarantee, but there are hardly any precedents of non-compliance that have reached the courts. Added to this is the difficulty for people in extremely vulnerable situations to want to—and be able to—initiate legal proceedings, and voices from specialized social organizations admit that the lack of resources has also ultimately weighed heavily in dismissing legal action whenever it has been considered.

The minimum that the administration must ensure is what the law defines as "guaranteed services." These are, basically, emergency residential shelter and a soup kitchen, explains Vicenç Aguado, professor of administrative law at the University of Barcelona (UB). "These are guaranteed services that municipalities must ensure, regardless of whether it's cold or not, to address emergency situations," he adds. However, they aren't always available everywhere, Lanau points out. "Some town councils have very limited financial resources, and in other cases it's a political decision," he says. to the closure in 2024 of the Can Bofí Vell hostel in Badalona

This is precisely one of the few precedents in which an administration has ended up in court for failing to meet its obligations to the homeless, and it did so through a fundamental rights protection procedure. A judge ordered the Badalona City Council to house four of the former users of the hostel. who had appealed the closure, and the precautionary measure remains in effect. The lawyer for the four affected parties, Albert Parés, expects to receive the ruling soon, which they have been waiting for for over a year.

When Can Bofí Vell closed, there was no other resource available in the city, and about fifty people were left without a place to sleep, recalls Carles Sagués, spokesperson for Badalona Acull. Aguado agrees that in such a situation, legal action may be the most effective way to challenge the closure, since, without an alternative, the City Council ended up failing to fulfill its obligation. "What a city council cannot do is fail to provide these basic social services. It is a guaranteed service; the quality of the service provided is another matter," adds the lawyer, who acknowledges the lack of resources in some municipalities.

The administration's obligations regarding the care of homeless people are established by the 2007 Social Services Act, and the benefits that the administrations must provide were detailed in a 2010 decree that has not been updated since. Since these benefits are legally guaranteed, Aguado explains, claims for non-compliance can escalate to the courts in various ways.

The pitfalls of the legal system

Those affected who could file a claim, Aguado admits, are often "struggled to survive each day" without considering a claim or legal proceedings. They could also be represented by someone or an organization that can demonstrate its legitimacy because its founding objectives are related to addressing homelessness.

"We often say this among people in the sector: we need a way to take this to court and go beyond political demands," explains Bea Fernández, director of the Arrels Foundation. She admits that the third sector has not yet been able to explore how to pursue strategic litigation, as organizations dedicated to housing rights do, for example. "It always requires a case, and that the person can substantiate the claim," she comments.

How far can the responsibilities extend?

The main purpose of any legal claim would be to force the provision of accommodation, but could there be further consequences for the administration? "In some situations, if there were an error in the system, there could be cases of liability," Aguado believes. The lawyer doubts that the breach could reach the criminal sphere, for example, with a crime of failure to provide assistance.

The director of Arrels, Bea Fernández, acknowledges that it remains unclear whether the administration can bear any responsibility for the deaths of homeless people, such as The five victims who have died on the streets of Barcelona in the last month"It's a big question. We don't know how far the consequences would go; a claim has never been made against the administration." The lawyer also warns that the first difficulty would be clarifying who has the legal standing to do so and whether they can assume it: "It should be family members or someone with a connection. Perhaps one role for organizations could be this, to become representatives," she suggests.

In contrast, social rights organizations have often resorted to legal action when they have detected breaches of the municipalities' obligation to register everyone who lives there, Fernández adds. Registration, Aguado points out, allows access to various municipal services, and all people who live in a town are entitled to them, even if they don't have a registered address.

How are the cold weather protocols established?

Aside from the minimum services that municipalities must guarantee year-round, during periods of low temperatures, such as in recent days, special operations are activated which, "in theory," says Lanau, are mandatory. Precisely this week, The Arrels Foundation has criticized Barcelona for not activating the alert phase of Operation Cold. —which involves opening extra accommodation spaces— on Monday, when temperatures plummeted and snow fell across much of Catalonia. The city council activated it the following day and announced it would remain active all week, even though the organizations admit they hadn't expected it to last so long. "I'm glad, but we don't know exactly what the criteria are," says Bea Fernández. The director of Arrels explains that the activation of these protocols depends on the cold weather alert issued by Civil Protection, and that the organizations cannot know it in advance. "We never know exactly when it will start and when it will end. We don't know exactly what the criteria are," she says. From Badalona, ​​where the cold weather operation has been controversial because the pavilion that was opened had no beds and no one could spend the night, Carles Sagués also questions the protocols for the temperature drops. "We think it's absurd to wait until we reach 0°C. Does that mean we're fine at 0.5°C and that we don't need to do anything?" criticizes the spokesperson for Badalona Acoge. "The criteria should be more humane and less technical."