Text of the Court de Montreuil on the ASE

Text of the Court de Montreuil on the ASE Read the original document ADMINISTRATIVE TRIBUNAL MONTREUIL NO. 1107210 ___________ Ms. Fatimata F. ___________ Ms. Nozain Rapporteur ___________ M. Mazaud Public Rapporteur ___________ Hearing of October 16, 2012 Reading from November 6, 2012 ___________ FRENCH REPUBLIC ON BEHALF OF THE FRENCH PEOPLE The Administrative Tribunal of Montreuil (Fifth Chamber) C 04-02-02 Considering the complaint, recorded August 26, 2011, presented by Ms. Fatimata F., residing in...; Ms. F. asks the Court: 1 °) to cancel the decision of August 6, 2011 by which the president of the general Council of the Seine-Saint-Denis Department refused to extend, beyond 31 August 2011, financial assistance in respect of social assistance to childhood; 2 °) to instruct the Department of the Seine-Saint-Denis to resume the payment of financial assistance under the assistance at home within 48 hours of the notification of the judgment to intervene and standby of 300 euros per day of delay; She argues that under article 24 of the law n ° 2000-321 of 12 April 2000, it would have to be invited to submit its observations. that the decision is illegal because of the illegality of articles 1 and 2 of the departmental regulations of financial assistance of the Department of the Seine-Saint-Denis. that it is vitiated by error of law in that it mentions that its hosting support falls outside the jurisdiction of the Department of the Seine-Saint-Denis. that removing the benefit of a decision of social assistance in the absence of new elements in his situation, it disregards the provisions of article r 131 - 3 of the code of social action and families; that it is vitiated by a manifest error of assessment and an error of law therefore that the Department considers that its resources are sufficient and that it does not meet the requirements of article L. 222 - 2 of the code of social action and families; that the decision is vitiated by misuse of powers and disregards the authority of res judicata in that it has for only purpose to defeat to the order of the judge's June 27, 2011, thus depriving it of the right to an effective remedy and to a fair trial; that the Department erred manifested in appreciation of N ° 1107210 2 consequences of his decision on his right to respect for his private and family life; that the decision infringes the provisions of articles 3 and 8 of the European convention of the rights of man and of article 3 of the international convention on the rights of the child; Having regard to the decision contested; Having regard to the, recorded on February 22, 2012, presented by the Department of the Seine-Saint-Denis, represented by the president of the general Council in exercise, which concludes at the refusal of the request; He argues that departmental regulation of financial aid is only aimed to clarify and organize the conditions for granting the aid legal and extra legal department; that accommodation and housing are devolved powers to the State by law; Thus, assistance to accommodation which has benefited the applicant is extra-legal assistance that the Department has implemented on its own initiative; that departmental regulation that reminds the subsidiary nature of welfare ingredient is posed by article L. 132 - 6 of the code of social action and families; in this case, the plea of illegality of the departmental regulations may not be invoked because the decision concerns aid granted without legal obligation by the Department; that the initial decision to award financial assistance was creative of law until its expiry on March 31, 2006; that the youngest child of the applicant having had three years on July 27, 2010, since that date, his mother hosting does fall under the jurisdiction of the Department on the basis of 4 ° of article l. that if the provisions of article L. 222 - 2 and L. 222 - 3 of the code of social action and families do not exclude that the home support could enable support for accommodation costs, provided they do not attribute to the Department the burden to provide for accommodation of the applicant; that it cannot be attributed to the Department to decide that a legal extra aid to the initiative of the Department will be paid only in exceptional and timely way; that he committed no error of law with regard to the requirements of article L. 222 - 2 of the code of social action and families; in this case, the financial difficulties of the applicant have a permanent character without that assistance by the Department has helped evolve the situation; that he committed no manifest error of assessment in this regard; repealing decision impugned February 22, 2011, then reviewing the situation of the applicant and taking a new decision, the Department did that run at best order of the judge of the Court of 27 June 2011, which suspended the decision of February 22, 2011 and was accompanied by no provisional measures; that cancellation for excess of power of a decision for refusal of assistance entails in principle only the obligation of the administration to again take a decision after a new statement; Having regard to the, recorded March 23, 2012, presented to Mrs F., who enters into for the same purposes as the request; It adds that an applicant that warrants be free hosting and not being able to meet this critical need demonstrates that encountering difficulties that could jeopardize the security, maintenance and education of his children, in accordance with article L. 221 - 1 of the code of social action and families; Therefore, if he does not have sufficient resources, it is entitled to ask, in the context of the different forms of assistance provided for in article L. 222 - 3 of the same code, the provision of financial assistance; that, in these circumstances, the Department is perfectly competent for financial assistance in light of the payment of the costs of hotel or any other form of accommodation from a family devoid of accommodation and lacking sufficient resources; Whereas it is for the authority N ° 1107210 3 administrative, pursuant to article L. 132 - 6 of the code of social action and families, to invite those held to the obligation established by articles 205 et seq. of the civil code, to indicate the assistance they can provide to applicants for social assistance; that taking as basis a decision of February 2006 and by notifying the final cessation of the payment of any aid to finance a hotel stay, the contested decision is the termination of a decision of creator of rights subject to the provisions of article 24 of the Act of 12 April 2000; Having regard to the, recorded July 17, 2012, presented by the Department of the Seine-Saint-Denis, represented by the president of the general Council, which concludes for the same purposes as above; He added that only the support for the period from November 2006 to July 2010 was the compulsory charge of the Department in accordance with the 4 ° of article L. 222 - 5 of the code of social action and families; that assistance has not sought with regard to a situation of danger or risk to the health of the children of the applicant; in the case of the species, the financial support of the accommodation of the applicant is now under the jurisdiction of the State; the screening assessment done by the municipal social service dated January 31, 2011 is an 'application for financial assistance for the hotel' to the commission hotel February 2, 2011; Having regard to the other documents in the file; Having regard to the code of social action and families; Having regard to the code of administrative justice; The parties having been regularly advised of the day of the hearing; Having heard at the public hearing of October 16, 2012: -the report of Mrs. Nozain, rapporteur; - and the conclusions of Mr Mazaud, rapporteur public; 1 Whereas it is apparent from the documents in the file that the Department of the Seine-Saint-Denis has supported without interruption the cost of hotel accommodation of Ms. F. and her three children since the month of February 2006; that, by the contested decision, that it was notified on 6 August 2011, the Department decided to suspend payment of the aid from September 1, 2011 on the grounds that "emergency shelter is a competence of the State through the device of the 115 or the C.H.R.S", that it does not meet the conditions laid down by the social action and family code and by departmental regulation of financial assistance of the Department of the Seine-Saint-Denis to continue to receive financial assistance that it does fall under the jurisdiction of the Department in respect of social assistance to childhood since the month of August, 2010 and it justifies resources regular and consistent with legal minima in effect; N ° 1107210 4 On the findings for the purpose of cancellation and without there being any need to rule on the other grounds of the application: 2. Whereas under the terms of article L. 121 - 1 of the code of social action and families: "Department sets and implements the policy of social action, taking into account the powers entrusted by law to the State, other territorial authorities, as well as to the social security bodies"; under the terms of article L. 222 - 1 of the code: 'Without prejudice to the recognized powers to the judicial authority, the child welfare benefits referred to in this chapter are granted by decision of the president of the general Council of the Department where the request is submitted'; under the terms of article L. 222 - 2 of the said code: 'help at home is awarded at his request or with his consent, the mother, the father or, in default, the person who assumes the effective the child's charge, when the health, safety, maintenance or upbringing dictate and, for financial benefits, when the applicant has insufficient resources.'; that under the terms of article L. 222 - 3 of the code of social action and families: "help at home features separately or together (...)" payment of financial aid, in form or exceptional relief, i.e. allowances monthly (...) » ; It follows from these provisions that if the child welfare benefits paid in respect of the home help is not intended to structurally address any shortcomings of the emergency shelter system, as to the duration of treatment of requests for priority housing, the Department cannot legally refuse these benefits merely to refer to distinct obligations weighing on the State in respect of the implementation of the right to emergency shelter recognized by law to any person without shelter located in medical, psychological and social distress, in the conditions laid down by articles L. 345 - 2, 345-2-1 and L. 345-2-2 of the code of social action and families; 3. Considering that the father, the mother or the person responsible for the effective charge of the child, which lack sufficient resources to ensure the health, safety, maintenance or education and therefore, where appropriate, for shelter, are entitled to financial benefits in accordance with the provisions of articles L. 121 - 1, L. 222 - 1, 222 - 2 and L. 222 - 3 of the code of social action and families; that if, by nature, social aid imposed by the same provisions are of a provisional nature, they can however be legally granted or denied that consideration of the particular situation of people seeking them. 4 Whereas it is apparent from the documents in the file that Mrs. F., single mother of two children, is devoid of work, homeless since the birth of her last child on July 25, 2007, and sees that the solidarity income active as well as family allowances; that, despite legal obligations to the Department of the Seine-Saint-Denis in respect of social assistance to children in accordance with the provisions sus recalled articles 222 - 2 and L. 222 - 3 of the code of social action and families, assistance at home, social monitoring of Ms. F. is limited to the monthly appointment with social worker sector of Aulnay-sous-Bois for the renewal of his accommodation in a residence; that, if the contested decision objects to Mrs F. the fact that it did not claim any entitlement to alimony, among others, the father of her youngest child, the president of the general Council did not review of its situation with regard to such rights merely to note that it did not assert its obligation of food and he opposed the fact that it benefits from resources comply with minimum social benefits even while it is devoid of housing, with an invitation to enter the service of the competent State to enable it to N ° 1107210 5 benefit from an emergency shelter; that the two children of the applicant are, in these circumstances, faced with difficulties affecting the health, safety, maintenance or education, which are likely to seriously compromise balance; that Ms. F. is thus entitled to argue that the president of the general Council of the Department of the Seine-Saint-Denis, who has committed an error of law with regard to the provisions of article L. 222 - 2 and L. 222 - 3 of the code of social action and families, the monthly financial assistance for its hosting of home support, also committed a manifest error that enjoying the social activity income and family benefits it collects are sufficient resources to take effective charge of a family of two children whose mother is devoid of housing; that, accordingly, the decision of August 6, 2011 refusing to Ms. F. financial assistance for accommodation beyond August 31, 2011 must be cancelled; The conclusions at the end of injunction under penalty: 5. Whereas pursuant to article L. 911 - 1 of the code of administrative justice: "when its decision implies necessarily that a legal person under public law or a private law for the management of a public service body to take a measure of execution in a specific sense, the Court's conclusions in this sense, prescribed, by the same decision, this matching measurewhere applicable, of a turnaround,"; that under the terms of article L. 911 - 2 of the same code: "when its decision implies necessarily that a legal entity public (...). again take a decision after a new statement, the Court, before it conclusions in this sense, prescribed by the same judicial decision, that this new decision must intervene within a specified time"; 6 Whereas the present judgment necessarily implies that the Seine-Saint-Denis Department does to a re-examination of the situation of Mrs F. and to decide on its right to the requested performance in respect of social assistance to childhood; Whereas it is, therefore, necessary to instruct the Department to proceed with this new statement and decide within a period of one month of notification of the present judgment, without any requirements to prescribe the fine per day of delay it wishes; that the conclusions of the applicant to order requiring the Department of the Seine-Saint-Denis to resume the payment of financial assistance for accommodation, in respect of the home help, must be rejected since the Tribunal has no element relating to the situation of the person concerned on the date where it sits. D E C I D E: Article 1: the decision of August 6, 2011 by which the president of the general Council of the Seine-Saint-Denis refused to grant to Mrs. F. financial assistance it sought in respect of the monthly allowance to the child welfare is cancelled. Article 2: Commanded the Department of the Seine-Saint-Denis to proceed to a further review of the entitlements of Mrs F. home assistance within a period of one month from notification of the judgment to be rendered. Article 3: The surplus of the conclusions of the motion is dismissed. N ° 1107210 6 Article 4: This judgment shall be notified to Ms. Fatimata F. and in the Department of the Seine-Saint-Denis. Deliberate after hearing October 16, 2012, which were: Mr Albertini, president, M. Colera, First Counsellor, Ms. Nozain, First Counsellor, Read in a public hearing on November 6, 2012. The rapporteur, Signed M.. Nozain President. Signed P.. Albertini The clerk, Signed T. Abang The Republic mande and directs the Minister of Social Affairs and health, in relation to and all bailiffs in this required in relation to the common remedies, against private parties, to provide for the implementation of this decision.