Section 8 terminations and reinstatements

Issue January 2015 January 2015 By Michael J. Moloney

Attorneys, especially those new to the practice of law, can benefit from knowledge of Section 8 Housing Choice vouchers and the Section 8 termination process. Under the Section 8 Program, rental assistance is paid on behalf of eligible low income families to help them afford housing in the private rental market. Rental units must meet minimum standards of health and safety, as determined by a Public Housing Authority, who administers the Section 8 vouchers. A housing subsidy is paid to a landlord directly by the Housing Authority, and the Section 8 recipient is then responsible to pay the difference between the rent charged by the landlord and the amount subsidized.

The grounds for which a participant's subsidy may be terminated are set forth at 24 C.F.R. § 982.551;  24 C.F.R. § 982.552 and 24 C.F.R. § 982.553. Additionally, a Section 8 termination is subject to the due process requirements established in Goldberg v. Kelly, 397 U.S. 254 (1970). If the Housing Authority determines that a termination is appropriate, it must: (i) give the participant(s) prompt written notice that contains a brief statement of reasons for the termination; (ii) inform the participant(s) that he or she may request an informal hearing on the decision; and (iii) state the deadline for the participant(s) to request the hearing 24 C.F.R. § 982.555(c)(2). This notice must include sufficient facts so that it puts the family on notice to the reasons for the proposed termination. The Housing Authority may terminate only on the basis of grounds set forth in the notice, and not on any other grounds. The Housing Authority must also give the opportunity to examine any Housing Authority documents that are directly related to the hearing.

Generally, the rules of evidence applicable to judicial proceedings do not apply to Section 8 termination hearings and therefore reliable hearsay is admissible. During a termination hearing, the hearing officer may consider all relevant circumstances such as 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 termination of the voucher on other family members who were not involved. After the conclusion of the hearing, the hearing officer must issue a written decision stating briefly the reason for his or her decision. Additional fact determinations must be based on a preponderance of the evidence presented at the hearing.

There is no formal appeal process for Section 8 terminations. However, if a Section 8 participant is terminated from the program, they may either seek to enjoin the termination or seek retroactive reinstatement. Courts have provided relief where it is alleged that a Section 8 subsidy has been terminated in a manner not consistent with due process or the requirements of federal law. Given that these cases are challenging and complicated, knowing certain key provisions can be a valuable asset ultimately benefiting a young attorney representing clients in housing related matters.