The Right to Adequate Housing: Disabled Individuals in the United States

About 15% of the world’s population is disabled, comprising the world’s largest minority population.^[1] According to the International Classification of Functioning, Disability and Health, a disability is “a limitation in a functional domain that arises from the interaction between a person’s intrinsic capacity, and environmental and personal factors” and occurs at the levels of “body function and structures, activities and participation.”^[2] The International Labour Organization estimated that 470 million working-age individuals possess a disability.^[3] Despite being a large minority, disabled persons are disproportionately homeless.^[4]

This article will argue for an implemented right to adequate housing for persons with disabilities by highlighting the disproportionate lack of adequate housing for disabled individuals in contrast to the explicit right in international law. Next, domestic law will be analyzed in the context of the United States as a developed country. Using the disjunction between the domestic law and practice in the U.S. given the disproportionate number of disabled persons experiencing homelessness, potential solutions will be discussed for better implementing a right to adequate housing for individuals with disabilities.

Inadequate Housing for Disabled Individuals

Disabled individuals suffer a higher risk of becoming homeless from “institutionalization,” discrimination, inaccessible housing, and unaffordable housing.^[5] The United Nations (“UN”) Special Rapporteur on the right to adequate housing recognized that “[i]n a vicious circle, disability often leads to homelessness and homelessness, in turn, creates or exacerbates impairments and additional barriers.”^[6] While 20% of individuals with disabilities live in developed countries, developed countries do not provide adequate housing for disabled individuals.^[7] In fact, in Canada, disabled individuals are twice as likely to be homeless.^[8] In 2019, 11.1% of people with disabilities, who were sixteen years old or older, in the European Union experienced a housing cost overburden on average.^[9] The housing cost overburden rate, or the rate of housing costs equal to or more than 40% of disposable income, reached a high of 33.7% of people with disabilities in Greece, yet only 9% of non-disabled people in the European Union possessed an overburden.^[10]

Likewise, inadequate housing may contribute to disabled persons’ ability to immediately evacuate in the case of a natural disaster, extreme climate event, or other emergencies; 79% of disabled individuals cannot easily and immediately evacuate.^[11] The response for humanitarian emergencies often neglects the needs of disabled individuals, who experience difficulties in terms of accessibility, services, and assistance.^[12] From studies of three hurricanes in eastern North Carolina in 1998 and 1999, households with a disabled person evacuated at a rate of 9% to 25% slower than households without a disabled person.^[13] Although, more recent and representative research must be accomplished for a better illustration of the current evacuation difficulties.

In addition to institutionalization, discrimination, and inadequate housing, the correlation between homelessness and disabled individuals may in part be a result of disabled persons possessing a higher rate of poverty than persons without disabilities.^[14] In fact, 50% to 70% of working-age disabled individuals are unemployed in industrialized countries.^[15] Based on a 2004 survey, only 35% of working-age disabled individuals were employed in the U.S.—compared to 78% of non-disabled working-age individuals—and two-thirds of unemployed disabled individuals could not find a job despite their desire.^[16]

Disabled individuals also face issues with physical accessibility, discrimination, stigmatization, and social housing or community support, which is compounded by the fewer resources in rural areas.^[17] Persons with intellectual or psychosocial disabilities, who often do not possess recognized legal capacity, are more likely to be forcibly evicted since they can rarely acquire formal housing contracts.^[18] Likewise, persons with disabilities may be abandoned by their families and may not possess access to emergency or homeless shelters that will accept them, especially for persons with psychosocial disabilities, due to a lack of accommodations.^[19]

International Law

In contrast to a lack of adequate housing for disabled persons in practice, the right to adequate housing for persons with disabilities is internationally recognized in the UN Sustainable Development Goals (“SDGs”) and international treaties. The SDGs aim to provide “adequate, safe and affordable housing” as well as transport systems, “inclusive” urbanization, and significantly reduce the deaths and people affected by disasters.^[20] The SDG to end poverty aims to provide national social protection systems and measures to cover vulnerable individuals, including persons with disabilities, and to provide equal rights to economic resources, access to basic services, and ownership and control over land, especially for vulnerable individuals.^[21] Other relevant SDGs include reducing inequality by disability within and among countries, and achieving employment with equal pay for persons with disabilities.^[22] The goals also call for the enforcement of non-discriminatory laws and policies.^[23]

In addition, international treaties provide grounds for adequate housing for disabled persons. The Universal Declaration of Human Rights (“UDHR”) recognizes the right to an adequate standard of living which consists of housing and “the right to security in the event of…disability.”^[24] As a non-binding resolution adopted by the UN General Assembly, the U.S. is a State party to the UDHR.^[25] However, the U.S. has largely not ratified the legally binding treaties recognizing a right to adequate housing. The International Covenant on Civil and Political Rights (“ICCPR”), which the U.S. ratified, generally guarantees the “freedom to choose [one’s] residence.”^[26] Providing more specific rights, the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) ensures the right to an adequate standard of living, comprising of a right to adequate housing, without discrimination—by the State or private actors—against disability status.^[27] Despite signing the ICESCR in 1977, the U.S. has not ratified the treaty, which would provide positive housing rights for disabled persons specifically.^[28]

Similarly, the Convention on the Rights of Persons with Disabilities (“CRPD”) classifies a person with a disability as a person who has “long-term physical, mental, intellectual or sensory impairments which” with other barriers “may hinder their full and effective participation in society” as equal members.^[29] Like the aforementioned treaties, the CRPD also provides a right to “an adequate standard of living,” which includes housing, for persons with disabilities and a right to “the continuous improvement of living conditions.”^[30] The treaty codifies the right to safe and adequate housing without discrimination by eliminating accessibility barriers, providing reasonable accommodations, increasing the accessibility of public and social housing programs, and ensuring that private actors provide accessibility.^[31] To be accessible, housing with accommodations must be affordable and sufficiently available to provide persons with disabilities the right to choose their housing.^[32] While the U.S. signed the CRPD in 2009, it has not ratified this treaty, unlike the 184 State parties.^[33] Moreover, the U.S. does not recognize a legally binding international right to adequate housing for persons with disabilities as evidenced by its lack of ratification for the ICESCR and the CRPD.

Domestic Law: The United States

Despite not recognizing a right to adequate housing for individuals with disabilities, the U.S. domestically recognizes a right to fair housing without discrimination. Under the Fair Housing Act (“FHA”), U.S. law defines a “handicap” as a person who possesses “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”^[34] This definition does not include addiction or substance abuse.^[35] A person cannot discriminate against “handicaps” when advertising the sale or rental of a dwelling, representing a dwelling’s availability, inducing the sale or rental of a dwelling for profit, selling or renting, or contracting the terms and conditions of the sale or rental of a dwelling.^[36]

The FHA has implemented three methods to protect individuals with disabilities in the sale or rental of housing.^[37] First, a person cannot refuse to permit reasonable modifications of the premises at the expense of the “handicapped person,” but they may require the premises to be restored at the end of the occupancy.^[38] Second, a person cannot refuse to reasonably accommodate their policies or services if “such accommodations may be necessary to afford…equal opportunity to use and enjoy a dwelling.”^[39] Third, a person cannot fail to design and construct “covered multifamily dwellings” (i.e. buildings with at least four units and an elevator or at least four ground floor units in different buildings) for the first occupancy to be accessible for “handicapped persons.”^[40] Although, these acts of discrimination may be permissible if the individual’s tenancy consists of a “direct threat to the health or safety of others” or “would result in substantial physical damage to” others’ property.^[41]

However, the FHA prohibitions only apply to certain housing. The prohibitions against discrimination in the sale or rental of housing apply to dwellings owned or operated by the federal government, dwellings financed by the federal government, and state or local government dwellings financed by the federal government for slum clearance or urban renewal as well as all other dwellings not exempted.^[42] The prohibitions do not apply to a single-family house sold or rented if they do not use a real estate agent and if they do not provide written notice, nor dwelling units occupied or intended to be occupied by four or fewer independent families if the owner occupies one of the living quarters as their residence.^[43]

In addition to the FHA, the Architectural Barriers Act mandates “the design, construction, and alteration of buildings,” which were “designed, built, or altered with federal dollars or leased by federal agencies after August 12, 1968,” to be accessible and usable by “physically handicapped persons” (emphasis added).^[44] According to the U.S. Department of Housing and Urban Development (“HUD”), 5% of dwelling units, or one unit if greater, for new federally assisted housing developments must be accessible for persons with mobility disabilities.^[45] The units must at least meet the Uniform Federal Accessibility Standards.^[46] Similar to the mobility accessible units, new federally assisted housing developments must design 2% of the dwelling units, or one unit if greater, to be accessible for persons with hearing or visual disabilities.^[47]

The Americans with Disabilities Act also requires state and local government housing (e.g. state university campus housing) as well as “places of public accommodation,” including the “public and common use areas at housing developments,” to be accessible.^[48] Similarly, the Rehabilitation Act defines a “qualified individual with a disability” as an individual who possesses a physical or mental impairment that substantially impedes employment and may receive an advantage in employment “from vocational rehabilitation services.”^[49] The Rehabilitation Act prohibits discrimination against a qualified individual with a disability by federally funded programs or activities.^[50] HUD clarifies that this prohibition includes housing programs and activities.^[51]

Domestic Practice: The United States

Unfortunately, these protections for persons with disabilities created in the U.S. domestic law do not equate to an implemented right to adequate housing for persons with disabilities. In the U.S., 25% of adults, or sixty-one million people, possess a disability.^[52] Among disabled individuals, 13.7% possess a mobility disability, 10.8% possess a cognitive disability, 6.8% have an independent living disability, 5.9% have a hearing disability, 4.6% possess a vision disability, and 3.6% have a self-care disability.^[53] When reforming legislation and policy to accommodate all types of disabilities, policymakers must account for the needs of adults of sixty-five years and older, women, and non-Hispanic American Indians/Alaska Natives, which all have at least 40% of their population group identified as disabled.^[54]

In January of 2017, 24%, or almost 87,000 individuals, of people experiencing homelessness possessed a disability and experienced chronic homelessness.^[55] Chronic homelessness includes individuals who were homeless for at least a year or experienced at least four periods of homelessness adding up to twelve months in the three years prior.^[56] In 2019, the number of disabled individuals experiencing long-term or chronic homelessness increased by 8.5% from 2018, which had increased by 2.2% from 2017.^[57] However, unlike the FHA definition of disability, for chronic homelessness, disability broadens to encompass substance use disorders.^[58] As a result of individuals with disabilities experiencing homelessness, they are more likely to encounter health-related issues and require hospitalizations or become arrested and incarcerated.^[59] Homeless shelters may not be an option for persons who are disabled if the shelters do not offer accessibility or the staff is not trained for disability occupants, such as needing an alternative to pat-downs for people with autism.^[60] In fact, as of January 2017, 69% of disabled individuals experiencing chronic homelessness occupied unsheltered locations, like sidewalks, doorways, parks, encampments, cars, buses, abandoned buildings, or under bridges.^[61]

Disabled individuals in the U.S. have difficulty obtaining affordable and accessible housing in part due to the necessary welfare reform. In October of 2021, 12,653,000 disabled individuals under sixty-five years old received social security benefits, supplemental security income, or both, and 9,294,000 individuals received $1,154.05 per month in disability insurance.^[62] With the federal poverty level for 2021 at $12,880, individuals receiving disability insurance receive approximately $13,848.60 annually, which is only slightly more annual income than the federal poverty level.^[63] Although the government provides public housing programs, rental assistance or subsidized housing, housing voucher programs, homeownership vouchers, and loans and grants in rural areas, a disproportionate number of people experiencing homelessness are disabled.^[64]

Solutions to Implement a Right to Adequate Housing

To effectively implement a right to adequate housing for disabled individuals in the U.S., the law must relieve the financial and accessibility burden from individuals with disabilities. At all levels of government, individuals with physical, hearing, visual, and psychosocial disabilities should be involved in housing planning and development.^[65] Policies should be amended to reduce the likelihood of forced eviction for persons with intellectual or psychosocial disabilities due to a lack of legal capacity.^[66] All housing—new, renovated, and existing buildings—should incorporate universal design principles, such as adding braille on elevator control panels.^[67] Universal design includes equitable use, flexible use, simple and intuitive use, perceptive information, tolerance for error, low physical effort, and appropriate size and space for users.^[68] Not to mention, design manuals like the UN Accessibility for the Disabled: A Design Manual for a Barrier Free Environment as well as the U.S. Uniform Federal Accessibility Standards should be used to determine the best practices for designing accessible housing and housing developments.^[69]

In the context of climate change and other emergencies, housing must also be accessible for readily evacuating persons with disabilities.^[70] Creating accessible and affordable transportation increases the freedom of choice of residence, as the U.S. ratified in the ICCPR, by allowing individuals to obtain housing in safe, convenient, and affordable locations.^[71] However, additional research must be completed to determine the leading factors of disabled individuals becoming homeless for improving accessibility and inclusivity.^[72]

As a result of the disproportionate number of disabled individuals experiencing homelessness, the right to adequate housing for persons with disabilities must be explicitly recognized and enforced in the domestic context. The correlation between disability and homelessness occurs in developed and developing countries, but developed countries possess the infrastructure and finances to immediately implement solutions. More research must be conducted in developing countries to determine the correlation rate and the gaps in law and enforcement. For a more accessible and inclusive environment, the U.S. must explicitly recognize the right to adequate housing for persons with disabilities in international treaties as well as domestic law and provide domestic implementation.

1. Factsheet on Persons with Disabilities, U.N. Dep’t of Econ. & Soc. Affs.: Disability, https://www.un.org/development/desa/disabilities/resources/factsheet-on-persons-with-disabilities.html. ↑
2. Div. for Inclusive Soc. Dev., U.N. Dep’t of Econ. & Soc. Affs., Disability and Development Report: Realizing the Sustainable Development Goals by, for and with Persons with Disabilities 21 (2018), https://social.un.org/publications/UN-Flagship-Report-Disability-Final.pdf. ↑
3. Facts on Disability in the World of Work, Int’l Labour Org. (Nov. 2007), http://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_087707.pdf. ↑
4. Div. for Inclusive Soc. Dev., supra note 2, at 14. ↑
5. Homelessness and Disabilities: The Impact of Recent Human Rights Developments in Policy and Practice, Hous. Rts. Watch (Dec. 18, 2018), https://www.housingrightswatch.org/content/homelessness-and-disabilities-impact-recent-human-rights-developments-policy-and-practice%E2%80%8B. ↑
6. Leilani Farha (Special Rapporteur on Adequate Housing), Adequate Housing as a Component of the Right to an Adequate Standard of Living, and the Right to Non-discrimination in This Context, ¶ 20, U.N. Doc. A/72/128 (July 12, 2017). ↑
7. Factsheet on Persons with Disabilities, supra note 1. ↑
8. Canadian Observatory on Homelessness, About Homelessness: People with Disabilities, Homeless Hub, https://www.homelesshub.ca/about-homelessness/population-specific/people-disabilities. ↑
9. Disability Statistics – Housing Conditions, Eurostat: Statistics Explained (Oct. 1, 2021), https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Disability_statistics_-_housing_conditions#Heavier_housing_cost_burden_for_people_with_a_disability. ↑
10. Id. ↑
11. Div. for Inclusive Soc. Dev., supra note 2, at 15. ↑
12. Id. ↑
13. Id. at 240; Marieke VanWilligen, Terri Edwards, Bob Edwards, & Shawn Hessee, Riding Out the Storm: Experiences of the Physically Disabld During Hurricanes Bonnie, Dennis, and Floyd, 3(3) Natural Hazards Rev. 98, 100 (Aug. 2002). ↑
14. Homelessness and Disabilities, supra note 5; Div. for Inclusive Soc. Dev., supra note 2, at 2. ↑
15. Disability and Employment, U.N. Dep’t of Econ. & Soc. Affs.: Disability 1 (Nov. 2007), https://www.un.org/disabilities/documents/toolaction/employmentfs.pdf. ↑
16. Id. at 4. ↑
17. Div. for Inclusive Soc. Dev., supra note 2, at 14. ↑
18. Id. at 224. ↑
19. Id. ↑
20. Goal 11, U.N. Dep’t of Econ. & Soc. Affs.: Sustainable Dev. (2021), https://sdgs.un.org/goals/goal11. ↑
21. Goal 1, U.N. Dep’t of Econ. & Soc. Affs.: Sustainable Dev. (2021), https://sdgs.un.org/goals/goal1. ↑
22. Goal 10, U.N. Dep’t of Econ. & Soc. Affs.: Sustainable Dev. (2021), https://sdgs.un.org/goals/goal10; Goal 8, U.N. Dep’t of Econ. & Soc. Affs.: Sustainable Dev. (2021), https://sdgs.un.org/goals/goal8. ↑
23. Goal 16, U.N. Dep’t of Econ. & Soc. Affs.: Sustainable Dev. (2021), https://sdgs.un.org/goals/goal16. ↑
24. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 25 (Dec. 10, 1948). ↑
25. International Bill of Human Rights: Universal Declaration of Human Rights, U.N. Digital Library, https://digitallibrary.un.org/record/670964?ln=en&p=Resolution+217%28III%29+A. ↑
26. International Covenant on Civil and Political Rights, U.N. Treaty Collection (Dec. 11, 2021), https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en; G.A. Res. 2200 (XXI) A, International Covenant on Civil and Political Rights, art. 12 (Dec. 16, 1966). ↑
27. Balakrishnan Rajagopal (Special Rapporteur on Adequate Housing), Adequate Housing as a Component of the Right to an Adequate Standard of Living, ¶ 8-9, U.N. Doc. A/76/408 (Oct. 14, 2021). ↑
28. International Covenant on Economic, Social and Cultural Rights, U.N. Treaty Collection (Dec. 11, 2021), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4. ↑
29. Convention on the Rights of Persons with Disabilities, art. 1, Dec. 13, 2006, 2515 U.N.T.S. 3. ↑
30. Id. at art. 28. ↑
31. U.N. Doc. A/76/408, supra note 27, at ¶ 38; Convention on the Rights of Persons with Disabilities, supra note 29, at art. 3, 5, 19. ↑
32. Committee on the Rights of Persons with Disabilities, General Comment on Article 19: Living Independently and Being Included in the Community, ¶ 34, Aug. 29, 2017, CRPD/C/18/1. ↑
33. Convention on the Rights of Persons with Disabilities, U.N. Treaty Collection (Dec. 11, 2021), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en. ↑
34. Fair Housing Act of 1968, 42 U.S.C.A. § 3602(h) (Westlaw). ↑
35. Id. ↑
36. Id. § 3604(c)-(f). ↑
37. Id. § 3604(f)(3)(A)-(C). ↑
38. Id. § 3604(f)(3)(A). ↑
39. Id. § 3604(f)(3)(B). ↑
40. Id. § 3604(f)(3)(C). ↑
41. Id. § 3604(f)(9). ↑
42. Id. § 3603(a). ↑
43. Id. § 3603(b). ↑
44. Physical Accessibility, U.S. Dep’t of Hous. & Urb. Dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/physical_accessibility#_Section_504; Architectural Barriers Act of 1968, 42 U.S.C.A. §§ 4151-52 (Westlaw). ↑
45. Accessibility Requirements for Buildings, U.S. Dep’t of Hous. & Urb. Dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/accessibilityr. ↑
46. Id.; see Uniform Federal Accessibility Standards, U.S. Access Board, https://www.access-board.gov/aba/ufas.html. ↑
47. Accessibility Requirements for Buildings, supra note 45. ↑
48. Id.; Americans with Disabilities Act Title III Regulations, 28 C.F.R. pt. 36, at Supplementary Information – 2 (2010), https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.pdf. ↑
49. Rehabilitation Act, 29 U.S.C.A. § 705(20)(A) (Westlaw). ↑
50. Id. § 794(a). ↑
51. Physical Accessibility, supra note 44. ↑
52. Disability and Health Promotion: Disability Impacts All of Us, Ctrs. for Disease Control & Prevention (2020), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html. ↑
53. Id. ↑
54. Id. ↑
55. Homelessness in America: Focus on Chronic Homelessness Among People with Disabilities, U.S. Interagency Council on Homelessness 1 (Aug. 2018), https://www.usich.gov/resources/uploads/asset_library/Homelessness-in-America-Focus-on-chronic.pdf. ↑
56. Id. ↑
57. Press Release, U.S. Dep’t of Hous. & Urb. Dev., HUD Releases 2019 Annual Homeless Assessment Report (Jan. 7, 2020), https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_003; Press Release, U.S. Dep’t of Hous. & Urb. Dev., HUD Reports Homelessness Unchanged in U.S. in 2018 with Notable Declines Among Veterans and Families with Children (Dec. 17, 2018), https://archives.hud.gov/news/2018/pr18-147.cfm. ↑
58. Homelessness in America, supra note 55, at 1; Libby Perl & Erin Bagalman, Chronic Homelessness: Background, Research, and Outcomes, Congressional Research Service 5 (Dec. 8, 2015), https://sgp.fas.org/crs/misc/R44302.pdf. ↑
59. Homelessness in America, supra note 55, at 5. ↑
60. Homelessness Among Individuals with Disabilities: Influential Factors and Scalable Solutions, NACCHO Voice (June 14, 2019), https://www.naccho.org/blog/articles/homelessness-among-individuals-with-disabilities-influential-factors-and-scalable-solutions. ↑
61. Homelessness in America, supra note 55, at 2. ↑
62. Monthly Statistical Snapshot, October 2021, Soc. Security (Oct. 2021), https://www.ssa.gov/policy/docs/quickfacts/stat_snapshot/. ↑
63. Federal Poverty Level (FPL), HealthCare.gov (2021), https://www.healthcare.gov/glossary/federal-poverty-level-FPL/; Adam McCann, Best & Worst Cities for People with Disabilities, WalletHub (Sept. 28, 2021), https://wallethub.com/edu/best-worst-cities-for-people-with-disabilities/7164. ↑
64. Housing Help, usa.gov (Sept. 10, 2021), https://www.usa.gov/housing-help-audiences; Homelessness in America, supra note 55, at 1. ↑
65. Div. for Inclusive Soc. Dev., supra note 2, at 235. ↑
66. Id. at 224, 235. ↑
67. Id. at 234. ↑
68. Secretariat for the Convention on the Rights of Persons with Disabilities, U.N. Dep’t of Econ. & Soc. Affs., Good Practices of Accessible Urban Development: Making Urban Environments Inclusive and Fully Accessible to ALL 87-88, Oct. 21, 2016, U.N. Doc. ST/ESA/364. ↑
69. Urb. Mgmt. Dep’t of the Lebanese Co. for the Dev. & Reconstruction of Beirut Cent. Dist. & U.N. Econ. & Soc. Comm’n for W. Asia, Accessibility for the Disabled: A Design Manual for a Barrier Free Environment, U.N. enable, https://www.un.org/esa/socdev/enable/designm/; Uniform Federal Accessibility Standards, supra note 46. ↑
70. Div. for Inclusive Soc. Dev., supra note 2, at 244-45. ↑
71. Id.; G.A. Res. 2200 (XXI) A, supra note 26. ↑
72. Div. for Inclusive Soc. Dev., supra note 2, at 235. ↑