Best Beloveds. We are on the third, and last, part of my Section 8 series (exposé? dissertation? riveting journalistic foray? you decide).
Even though the process for learning all this has been engaging and eye-opening for me, I understand that reading it may not have the page-turning quality that, say, a Harry Potter book might. But, despite the law references and dry subject matter, there's a heart in here. And, at the risk of becoming sentimental, that's exactly why we do this.
Today, I'm diving into terminations from the Section 8 program - when someone receives a notice that their Section 8 voucher will be taken away from them. Inside every Section 8 termination is someone who is terrified that they are going lose their housing. Most likely (because they are low-enough-income to qualify for Section 8 in the first place), they are about to become homeless, if they are not able to successfully dispute the termination.
So, for every quibbly sentence about definitions of criminal activity, and references to what, exactly, is good cause, there's someone whose stable housing lies in that balance; who may need an advocate to tell them: "I've read about this! It's worth fighting! Try to overturn this!" Many, many clients get their termination notices and think, "this is it. It's already decided. It's over." BUT IT'S NOT OVER. There's so many more questions to be asked, so many more possible outcomes.
I hope that when you read this, you see as I do, all the ways that we can work together to protect those who hold these vouchers, the tired, the poor, the wretched refuse, the huddled masses yearning to breathe free.
- Section 8 vouchers, also known as housing choice vouchers, allow a low-income person or family to pay 30ish% of their income as rent to a landlord, and a housing authority pays the rest with funding from HUD.
- Last week's blog post was full of info for tenants, including: how one gets a Section 8 voucher, how to find housing with a voucher, and the basic process for using a voucher.
- Before that, I did a blog post for landlords, including: the basic process for getting paid under a voucher, how the inspections and money parts work, and how to build a tiered screening criteria for applicants that may have a voucher.
To Be Clear, I Have Sympathy for Both Sides of This Situation:
Sometimes, a voucher holder will receive a termination notice - something saying, hey, you've been getting help from us, but a rule has been broken and now we're going to stop paying our part of your rent. Sometimes these notices make sense to the participant, and sometimes they don't. However, this entire process is based on federal regulations, that say why a housing authority might choose to terminate a voucher, and how that can happen.
While I never want someone to undeservedly be terminated from a voucher program (see above), I have a lot of sympathy for housing workers and case managers at a housing authority. Their case loads are huge (in Madison, case loads average out to around 375 families per worker), their agencies are understaffed, and they can't help as many people as they'd like to. I can see how it would be easy get jaded to the hard-luck stories, and to take some shortcuts, like making some choices about terminations that might not be based on a thoroughly-researched, evidence-based, or appropriately-mitigated position. Sometimes, I can imagine that they get things wrong. And that's why this dispute procedure exists.
Housing workers aren't supposed to be attorneys, and neither are the voucher holders. So, the housing worker says, "this is why we're terminating you" then a tenant always has a chance to say, "wait a minute. I don't think that's right. I want a hearing." But in order for a tenant to do that, or a housing worker to make the best choices possible, everyone needs to know the rules.
Where are The Rules?
- Federal Regulations of Section 8 vouchers
- Case Law: there are so many cases that make up the case law in this area. Contact the National Housing Law Project for more information. Three relevant cases for today's post are: Bratcher v. Housing Authority of Milwaukee, Williams v. Housing Authority of Milwaukee, and Pickett v. Housing Authority of Cook County.
- Administrative plans: there's one for each housing authority. I won't list all of them, but here are Madison's and Dane County's
- There's a problem of some kind. We look at all the reasons that a termination might be triggered, below, under "The Reasons." The housing worker decides to take action because of a problem.
- The housing authority sends a letter the the tenant/voucher-holder. The letter, called a termination notice, says something like: "The housing authority thinks there is a problem, and we will stop paying our part of your rent because of that problem. If you want an informal hearing, you need to notify us in writing within 10 days."
- The tenant/voucher-holder needs to write a letter immediately if they want to dispute this notice. Here is a sample letter to dispute a termination notice. Now, if the tenant is okay with losing their housing, they don't need to write this letter. But, if someone wants any chance to stay in their housing with the support of a Section 8 voucher, it's almost always worthwhile to dispute the termination notice. Because of the small window of time to dispute the notice, the tenant household almost always needs to take action themselves, in order to get support from Legal Action or Judicare.
- Before any hearing is scheduled, it's a good idea for the tenant household to find out what's in their file. Voucher holders have the right to access their official file, to see what kind of documents the housing authority has, and what they are using to substantiate the termination. If a tenant is working with an attorney, it will really help if the tenant has: a copy of their termination
- There will be a hearing. It will probably be at the housing authority. There will be a housing authority worker, who will take evidence, ask questions and write extensive notes. This person is not the person who makes a decision on the case - that's done by a hearing officer, also within the housing authority.
- A decision will be made. Interestingly, a housing authority (even though they make the decisions) have a right to overturn every decision that they make in an informal hearing (step #5). But of course, anyone who wishes to have a decision overturned, must ask, in writing. (This might be a good time to get some help. If the housing authority is to be held accountable, later on, they must take this step of validating the decision.) And then, if a decision has upheld, and the housing authority decides that they want to take a voucher away from a tenant, then a tenant needs to figure out if they want to continue appealing the hearing decision. In step #3, it makes sense for almost anyone to dispute a termination. In this step, though, after the hearing, it doesn't make sense for everyone to appeal further up the legal chain. Most tenants who wish to go further along in this process will need the help of an attorney, like Legal Action or Judicare.
- In order to appeal the decision made by the housing authority, a certiorari action (through a petition or summons and complaint) should be filed in Circuit Court within 30 days of the date you receive the hearing decision. (Note: If your public housing agency has opted out of Wisconsin Statutes Chapter 68 Municipal Administrative Review, your time limit for filing a certiorari case may be governed by common law certiorari which provides for filings within 6 months of the agency decision.) The Circuit Court reviews the record of the Section 8 hearing and does not take new evidence. A decision is based on the record and written briefs submitted by the parties. You will need to file a motion for a temporary injunction to keep your Section 8 in place pending the Circuit Court review of the hearing decision. You will need to show that you are likely to prevail in the case to obtain the injunction. If you don’t obtain an injunction or get the Section 8 agency to agree to keep making rent assistance payments, the rent assistance payments will not be made to your landlord while the case is being reviewed by the Circuit Court. If the Circuit Court rules in your favor, you can bring a claim for damages under 42 U.S. § 1983 (federal civil rights law) to recover the amount of the rent assistance you were denied by the section 8 agency if it was terminated in violation of a federal law.
The federal regulations spell out reasons why someone can be terminated, and we're summarizing the main reasons here. Please note! All of these have a GIANT ASTERISK next to them (in our minds) which says, there are a lot of caveats! So even if a person's voucher could be legally terminated, every hearing has to take into account a lot of other factors besides just these regulations. And those caveats are in the next section. Here are the reasons why someone's Section 8 voucher can be taken away:
- Nonreporting: If you are a voucher holder, you have an obligation to report the people that reside in your household, and the income that they earn. If a tenant/voucher holder doesn't do this, the housing authority has big feelings, and might try to terminate a voucher for "noncompliance" with those reporting procedures. The list of family obligations, including reporting requirements, are under 24 CFR § 982.551.
Criminal activity (most of these are in 24 CFR § 982.553): this is a pretty complicated one. The federal regulations give the broad strokes of the policies regarding termination for criminal activity, but then individual housing authorities have to make up their own policies, which can't conflict with the federal regulations or case law. This is done in each housing authority's administrative plan (here are Madison's and Dane County's).
- Meth: The housing authority is required to terminate any member of the household that has been convicted of manufacture or production of methamphetamine on the premises of federally assisted housing. That one is clear-cut. The others are less so.
- Drugs: The housing authority has to make a policy (which is likely not the same for every housing authority) about how to deal with household members engaged in illegal drug use or patterns of illegal drug use that interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents. The family also has an obligation under § 982.551 not to engage in any drug-related criminal activity, but again, the housing authority has to make a policy regarding how they want to handle that.
- Violent criminal activity: The family has an obligation not to engage in violent criminal activity, but again, this isn't necessarily a straight-up termination process. The housing authority has to have a policy regarding how they deal with violent criminal activity, and the circumstances under which they give terminations.
Domestic abuse, sexual assault and stalking: are not allowed. However, incidents of domestic violence, sexual assault or stalking won't be considered good cause to terminate the voucher of the victim of the abuse or the voucher of an immediate family member or household member of the victim (see definition of affiliated individual at 24 C.F.R. s.
Miscellaneous reasons: Mostly under 24 CFR § 982.551.
- Inspections: the tenant must allow the housing authority to inspect their unit.
- Violations of the lease: tenants may not commit any "serious or repeated" violations of the lease.
- Moving/Breaking leases/Ending leases: voucher holders must notify the housing authority before they move out of the unit, or end their lease with the landlord.
- Eviction notices: If the landlord gives the tenant an eviction notice, the family needs to give a copy of that notice to the housing authority. However, this law *doesn't* say that getting the eviction notice on its own is grounds for termination. Eviction notices are only grounds for termination if the family doesn't give the housing authority a copy.
- Dodgy reasons: Madison's housing authority (the Community Development Authority) has a list of "responsibilities" that they hand out to each voucher holder. My impression is that something like this happens in most housing authorities, where the housing authority tries to break down the federal regulations, the administrative code, and relevant case law, to give a page full of easy bullet points that each tenant ought to follow. Sometimes these rules are accurate, and sometimes they are less accurate, so if a tenant gets a termination based on one of these "responsibilities," please make sure to double check the legal foundations and make sure it's accurate. Additionally, it seems like each individual housing worker has a lot of personal leeway about enforcing the rules.
The Caveats to the Reasons:
"The Reasons" (above, copyright pending), set out why someone's Section 8 voucher could legally be taken away. But! The public housing agency has discretion and can pursue alternatives to termination. Many of these are in 24 CFR § 982.552(c)2. Here are some of those:
- Must consider all relevant circumstances: the housing authority looks at the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure.
- The housing authority can remove problematic people: if one person in the household is the one taking actions to jeopardize the housing of the other household members, the solution may be to remove that one problematic person from the voucher, but continue to allow the rest of the family to hold the voucher.
- Illegal drug use or alcohol abuse: the housing authority can consider whether the tenant using illegal drugs or abusing alcohol is still doing those things. And if that person is not using drugs or abusing alcohol (and especially if s/he can prove it through completing/engaging in a rehabilitation program), then the housing authority doesn't have to terminate the voucher as a result of that problem.
- Discrimination: A housing authority is not allowed to issue a voucher termination notice for reasons that are discriminatory.
- Reasonable accommodations: if the family includes a person with disabilities, the housing authority must make reasonable accommodations for that person.
- Protections for survivors of abuse: there are protections for someone who has experienced domestic abuse, sexual assault or stalking.
Ways for a Tenant to Be Successful in a Hearing:
Because the housing authority needs to take into consideration "all relevant circumstances," evidence of rehabilitation, and the impact the decision might have on innocent members of the household, there's a lot of room to dispute even a legally valid termination notice. (Please note! We are not attorneys! This is not legal advice! If you want legal advice, please contact an attorney.) Here are some strategies to dispute that notice:
Evidence: if a tenant fundamentally disagrees with the reasons that the housing authority is using to issue a termination, then the best response might be evidence. Witnesses, written statements (if someone makes a written statement, it's great to also have them available by phone), and other tangible evidence can be presented at the "informal hearing." (Remember! They won't admit new evidence if tenants want to appeal the decision made through the informal hearing - so go big or go home.
Tenants won't get another chance to say why they think the termination notice isn't the right choice.)
- Peaceful enjoyment: in the federal regulations, a lot of the drug and criminal termination rules say that someone can be terminated if they threaten the "health, safety, or right to peaceful enjoyment of the premises by other residents." If a tenant can get statements from neighbors, or the landlord, to say that their health/safety/peaceful enjoyment weren't threatened, that can be pretty helpful.
- Personalizing the situation: Anything a tenant can do to personalize this situation might help their case. They could bring character witnesses, or a whole bunch of people to say that they are worth another chance. These kinds of discretionary factors are things a housing authority needs to take into consideration.
- Rehabilitation: If someone has abused alcohol or illegal drugs, or experienced some kind of mental illness breakdown, and that has led to the voucher termination notice, then there might be room to dispute that if the person has been rehabilitated somehow. In this case, the tenant would need some evidence of rehabilitation, through a drug/alcohol program, or through documented medical intervention.
- Minors/innocent parties: If there are kids in the household, or other innocent household members, then it can be helpful to show how the termination would negatively impact them. This is most easily corroborated by other people, like teachers, school social workers, or other professional folks who can say some good things about the family, and explain how the kids would be harmed by the voucher termination.
- Reasonable accommodations: If someone is disabled, and the termination notice stems from a problem due to that disability, then they have a right to ask for a reasonable accommodation for their disability. The head of household should request that the public housing agency reverse their intent to terminate as a reasonable accommodation of the household member’s disability and consider an alternative to termination (usually this will involve an evaluation and modification to a treatment plan or pursuing supportive services to enable the household to comply with the section 8 rules going forward).
- Domestic abuse: Domestic abuse, sexual assault and stalking are not allowed. However, if a victim of abuse receives a voucher termination due to an incident of domestic violence, sexual assault or stalking, then that isn't considered good cause to terminate the voucher of the victim of the abuse or an affiliated individual [see definitions federal regulation].
If you read nothing else, read this:
- If you get a termination notice for your Section 8 voucher, please dispute that termination notice. Sample letter here.
- Please get help. Contact Legal Action or Judicare, depending on where you live.
- There's a process and you have procedural rights! You have a right to dispute your terminations notice.
- There are legit reasons that Section 8 voucher can be taken away. But! They have to take your situation into consideration, and even a legitimate reason for taking away a voucher can be voided with a good defense.
Dane County Residents! Legal Action is now providing defense counsel at Dane County eviction court on Tuesdays, so they're available to help! Get there early, and go find Legal Action. You can ask for additional help from Legal Action or Judicare.
Hi! Did you know that we aren't attorneys here at the TRC? And this isn't legal advice, either. We are also, notably, not experts about Section 8 vouchers. We get a lot of questions about these, though, and we wanted to make some basic information available to our readers. If what we've written doesn't sound right to you, consult with someone you trust. A list of housing attorneys is available here.