HOMELESSNESS IN SPAIN
The research in relation to the Spanish jurisdictional scope has been performed by Paula Álvarez, Álvaro de Castro, and Sofía Fernández (lawyers at Gómez-Acebo&Pombo); Alejandra Martín (trainee at Fundación Fernando Pombo).
1. IS THERE A LEGAL DEFINITION OF “HOMELESS PEOPLE” IN YOUR JURISDICTION IF YES, WHERE IS IT REGULATED? HOW IS IT EVIDENCED?
There is no legal definition of homelessness in Spanish legislation. However, there is an unofficial but accepted universal standardised concept of homelessness in Europe called ETHOS (European Typology on Homelessness and Housing Exclusion), proposed by the European Federation of National Associations Working with the Homeless (FEANTSA).
ETHOS identifies 4 main categories of living situation: Rooflessness, Houselessness, Insecure Housing and Inadequate Housing. These categories can in turn be divided into 13 operational categories used for different policy purposes.
Homelessness situation should be understood as a person unable to access and maintain personal and adequate accommodation by their own means or with the help of Social Services, as well as those people living in institutions (hospitals, prisons, etc.) but do not have personal accommodation to go to when they leave and people who live in subhuman accommodation or in a clearly overcrowded situation.
Furthermore, the National Institute of Statistics includes a less broad concept, differing in the fact of FEANSTA contemplating persons living in internment institutions and who do not have personal accommodation to go to on their release, while they are expressly excluded in the case of the concept handled by the National Institute of Statistics .
2. DOES A LEGAL STATUS OF “HOMELESS PEOPLE” OR “HOMELESSNESS” INVOLVE A PARTICULAR OBJECT OF LEGAL PROTECTION? WHAT IS THE BASIC PROTECTION THAT IS RECEIVED IN YOUR JURISDICTION?
No, in Spain there has been no global and territorially coordinated approach to homelessness policies to date, so no particular status is recognized for this collective.
The basic protection that homeless people receive refers to social assistance resources, which results in the institutionalization of the person but does not achieve their integration. For this reason, the regulatory framework set out in the Integrated National Strategy for the Homeless seeks to recognize rights that vitally affect homeless people: the right to "life security", the right to housing, the right to health protection and social assistance.
This matter has been transferred to the Autonomous Regions pursuant to Article 148.1.20º of the Spanish Constitution. Therefore, there are a number of regulations aimed at responding to situations of social exclusion, and although these do not only concern the homeless, they could be useful. Their aim is to prevent the risk of exclusion, to mitigate situations of personal, social and occupational exclusion, and to facilitate the inclusion of those who lack sufficient personal, social or economic resources for the effective exercise of the social rights of citizenship.
3. ARE THERE SPECIFIC MEASURES THAT PROMOTE ACCESS TO AFFORDABLE HOUSING FOR HOMELESS PEOPLE? HOW IS IT REGULATED AND HOW SHOULD IT BE SHOWED?
Measures to provide affordable housing to homeless people fall in either of these three categories:
temporary hosting (including drop-in centers, supervised housing…)
Many programs in this regard are run by local charities, NGOs and religious institutions. If we focus in resources devoted by public administrations, the competence, as commented above, lies at the local and regional levels.
SAMUR SOCIAL provides basic, temporal housing facilities for emergency situations, which only grant very short term protection.
The Madrid city council, for example, offers a limited number of guest houses and flats to avoid that homeless end up in reception centres which often do not help their social inclusion. In late 2019 it announced the creation of 75 flats under the “Housing First” model (individual long term housing) and 75 under the “Housing Led” modality (shared housing). These are a good start from departing from the classic model of drop-in centers.
Specific housing emergency measures have also been deployed during the COVID-19 crisis by Madrid city council, namely the temporary hosting of roofless people in a pavilion of the main congress and exhibitions institution (IFEMA). These people will now be able to join the Housing First + Housing Led initiative, according to the city council.
Boosting the Housing First approach is also an objective under the 2016-2021 plan of the Madrid Autonomous Region.
In Barcelona, for example, emergency measures were also adopted during the COVID-19 crisis, temporarily hosting homeless people in the Fira. 750 beds were added to supplement the permanent capacity of the city social services, which amount to 2200 beds.
The intervention at a state level is basically under a coordinating role, and by providing (a small) part of funds. The Plan Concertado reflects the coordination with the Autonomous Regions and local entities.
The criteria for access to housing are heterogeneous, and may require registration at the relevant town (empadronamiento) for months or years, a minimum and maximum income, and/or commitments to follow a social inclusion program, inter alia. Even if the requirements are fulfilled, a prescription by a reference professional based on his own assessment of the circumstances may be required.
4. IS HATE CRIME SPECIFICALLY REGULATED AGAINST HOMELESS PEOPLE IN YOUR JURISDICTION? DO YOU KNOW ANY CASE?
No, there have been some initiatives in this regard, but have not been incorporated into our Criminal Code yet, despite studies showing that approximately 47% homeless persons have suffered hate crimes (Observatorio Hatento). Recent parliamentary discussions show that there is a wide consensus on the fact that the crime of hate to homeless should be included in the next planned reform of the Criminal Code. Until that happens, the situation is as follows.
There is indeed a hate crime defined in our Criminal Code (punishing certain external acts in which the hate is manifested), and also an aggravating circumstance to any crime based on hate to certain collectives. However, these collectives are not defined by the economic or housing situation of their members, but rather by their religion, ideology, family situation, race, nation, gender, sexual orientation, sexual identity, illness or disability.
The Supreme Court has been clear in its case law that the hate crime, and the hate aggravating circumstance, cannot be applied to the victim just because (s)he is a homeless person.
Assaults to homeless people have been so far normally punished under the general crime against moral integrity or bodily injury. Recent guidelines from 2019 from the State Attorney General suggest that in some cases other general aggravating circumstances, such as abuse of superiority, may be applied, but this in turn has been refused by some first instance judgment of the same year, such as the judgment issued by the Barcelona court in the famous case where a YouTuber gave a homeless person a biscuit with toothpaste inside.
5. HAVE SPECIFIC MEASURES TO PROTECT THE HEALTH OR FOOD RIGHTS OF HOMELESS PEOPLE HAVE BEEN APPROVED DURING THIS COVID-19 CRISIS?
Yes. A series of measures have been announced and approved by the Spanish government in this regard during the COVID-19 crisis.
Social Services have been entrusted a series of tasks by the Spanish government: (i) to deliver everyday hygiene, food and beverage kits to homeless people, (ii) to orientate the homeless about COVID-19 and to explain them the preventive measures to be taken in order to avoid that they contract COVID-19, (iii) to take their temperature, (iv) to create social canteens to deliver take away food, (v) to enhance the social centres with health professionals and with cleaning and disinfection services.
In order to reduce the large ques in the current social centres and to reduce the possibilities of contracting the disease, the Government has also created new spaces in order to provide housing, food and hygiene to homeless people, including isolation areas for infected people.
Additionally, in order to avoid that Social Services collapse, Civil Protection, the Army and the State Security Forces and Corps have been entrusted a series of tasks: to do a daily follow up of homeless people, to enhance the social centres, to deliver food, to equip the charity canteens and to adapt/create the required spaces for developing such tasks.
The Army personnel has been increased so that, in collaboration with the Military Emergencies Unit, they may work together in order to prevent the spread of the virus by disinfecting as many areas as possible.
Autonomous Regions and City councils have also reinforced the hosting and other services given to homeless people during the COVID-19 crisis (see also question 3).
6. HAVE DATA ON TRANSPARENCY AND POSSIBLE CLAIMS FOR HOMELESS PEOPLE IN PARTICULARLY VULNERABLE SITUATIONS BEEN PROVIDED?
We have not found any data on possible claims from homeless people.
Regarding the management of this matter, both the Spanish Government and the Autonomous Regions and main City Councils of Spain have published on their websites action plans to help homeless people.
The results of the studies carried out in Spain show improvements in the acceptance of homeless people to live in a house (over 80% of the time, they stay in a house four years after starting the programme). In addition, evidence-based studies show that homeless people in Housing First programs reduce their use of emergency health care by 83%, there are 80% fewer ambulance transfers, and their use of correctional facilities drops by 77%, visits to doctors drop by 83 per cent, psychiatric hospitalizations by 75 per cent, use of hospital beds by 72 per cent, visits to alcoholism centres by 97 per cent and contacts with the police by 65 per cent. On the other hand, quality of life has been improved (93% of former homeless people declare themselves "very satisfied", 97% improve their mental health and 57% reduce their consumption of substances or alcohol).
In addition, the National Institute of Statistics regularly publishes the results of its studies on a national level and by Autonomous Community.
7. HAS ANY LEGAL ACTION BEEN TAKEN TO PROTECT PARTICULARLY VULNERABLE PEOPLE FROM BECOMING HOMELESS?
In Spain, there are aids and subsidies at both national and Autonomous Community level for all persons who do not receive any type of benefit, whose resources are insufficient to meet situations of need. Some of these benefits are: birth and childcare benefits, financial benefits for a child or a minor in foster care, unemployment benefits, benefits due to the termination of activity for self-employed workers.
On the other hand, the State Employment Service offers financial assistance to unemployed persons and members of specific groups who are not entitled to other benefits: unemployment benefit when they have family responsibilities, benefit for persons over 45 years without family responsibilities, benefit for persons over 52 years, special unemployment benefit, Active Insertion Income.
Moreover, a Second Chance Law was created, with the aim of offering solutions to citizens who have experienced economic difficulties. The aim of this law is to enable a natural person, despite a business or personal economic failure, to have the possibility to put his life back on track and even to risk new initiatives, without having to drag out indefinitely a debt that he will never be able to satisfy.
Furthermore, the Spanish Government has approved social benefits in favour of main residence lessees who are going through an economic and social vulnerability situation caused by COVID-19. These benefits are a maximum amount of EUR 900/month and of 100% of the lease rent, up to 6 months, and may be requested for the rents since April 2020. In addition, the Spanish government has approved lease agreements guarantee lines in order to avoid evictions.
As other measures introduced by the Spanish Government, we highlight the creation of an "electrical social bond", in order to facilitate the payment of electricity bills for vulnerable consumers.