Magistrate Judge Ken Neiman has recently provided a great road map for public housing authorities and hearing officers making decisions regarding Section 8 benefits. In Kermoade v. Chicopee Housing Authority, Judge Neiman explained the “do’s” and “don’ts” of benefits determinations and his decision is a “must read” for those having the responsibility for deciding whether a participant should be terminated from the program. Here are some tips from his decision, the regulations and other sources.
- DO identify the holder of the benefits. Remember that Section 8 benefits may support other members of the household. Decision makers must be clear about who is the beneficiary under the program and whose benefits are affected by the decision.
- DO state the facts supporting the decision. As Judge Neiman pointed out, HUD requires that a decision on termination of benefits “must be truly informative as to the reasons for the decision.” Kermoade v. Chicopee Housing Authority, Memorandum and Order of June 5, 2014 at 5. Simply stating that participant is terminated for “criminal activity” or “failure to cooperate” without more is probably insufficient for a court to sustain a decision on appeal.
- DO try to be complete. The record on appeal will be limited to the contents of decision so it is important to have all the reasons for termination in the decision.
- DON’T forget to recite the standard of review for the hearing. HUD requires that facts be determined based on the “preponderance of the evidence”. 24 CFR 982.555(e)(6). For nonlawyers, this means: is a fact more likely true than not? If so, then the point is proved by the “preponderance of the evidence.”
- DON’T ignore mitigating circumstances. Given the importance of Section 8 benefits, a participant may well have reasons why the benefits should not be terminated. If so, then explain why those reasons are insufficient to overcome a negative decision on benefits. While Judge Neiman suggests that consideration of mitigating circumstances may not be required by HUD regulations, it is probably a good idea to include an explanation about why they do not trump the decision to terminate benefits.
A negative decision on Section 8 benefits has serious consequences that affect not only the benefit holder but all members of the household. If the decision is appealed, the PHA’s goal is to have the decision upheld by the reviewing court. The best way to accomplish this is to have a thoughtful process that results in a well supported decision that will withstand judicial scrutiny.