Household Members May Not Be Required to Relocate

Facts: Since March 2005, a resident, his wife, and two children have lived in a Section 8 subsidized three-bedroom apartment. In December 2014, the local PHA notified the resident that his four-member family no longer qualified for its three-bedroom apartment, and that his failure to relocate to a two-bedroom apartment if and when one became available would result in forfeiture of his subsidy.

The next month, the resident received an offer to relocate to a two-bedroom apartment, for which he was given 15 days to respond. Three days later, he asked permission to remain in his current apartment as a reasonable accommodation, claiming that given the household composition of two adult children of different sexes, the reduction to a two-bedroom apartment would require him and his wife to sleep in the living room—something they cannot do given her current physical limitations without experiencing great pain and discomfort. Additionally, even the physical work involved in moving itself would create a problem for his disabled wife. He supplemented his request with verification of his wife’s disability.

By letter, the PHA concluded that his “household does not need a larger unit,” and denied the request for an accommodation. The resident appealed the determination, and an informal hearing was held before a hearing officer.

At the hearing, the resident alleged a link between his wife’s disability and his request to remain in the three-bedroom apartment based on his wife’s use of their living room each evening to elevate her leg, which he claimed precludes the use of the living room as a bedroom for their son and daughter, and for his wife, who is not “comfortable” sleeping there. Thus, he argued that the PHA failed to account for the family’s personal circumstances, in violation of HUD regulations and in violation of federal law prohibiting familial status discrimination, and that public policy favors keeping families “in place.”

In August 2015, a hearing officer upheld the denial of the resident’s request, finding that the resident had failed to demonstrate that his family could not be reasonably accommodated in a two-bedroom unit. The hearing officer reasoned that even if the living room is unavailable to the children, who had since become adults, they could share a bedroom, or the father and son and/or mother and daughter could share rooms. The hearing officer also denied that HUD regulations require that the PHA consider personal circumstances when determining appropriate unit size. Rather, such consideration is discretionary, and a four-member household is not automatically entitled to a three-bedroom apartment.

The resident sued to challenge the PHA’s decision.

Ruling: A New York court vacated the hearing officer’s denial and sent the case back to the PHA for further proceedings consistent with the court’s decision.

Reasoning: Pursuant to HUD regulation 24 CFR § 982.54, the PHA shall “adopt a written administrative plan that establishes local policies for administration of the [Section 8 voucher] program in accordance with HUD requirements,” including “subsidy standards.” The subsidy standards promulgated by the PHA “must provide for the smallest number of bedrooms needed to house a family without overcrowding” [24 CFR § 982.402[a][1], [b][1]].

Effective in 2013, the PHA promulgated subsidy standards that provide that “[t]he unit size on the [Section 8] voucher will be determined solely by the number of people in the household,” and that families of three to four qualify for a two-bedroom apartment. However, the PHA “may grant an exception to [the] subsidy standards if the exception is justified by the age, sex, health, disability, relationship of family members, or other personal circumstances.” Participants in the program may also request a “reasonable accommodation,” and “certify (if apparent) or verify (if not apparent) that they are a person with a disability” as defined by federal law, and demonstrate that there is an “identifiable relationship between the requested accommodation and the individual’s disability.”

Effective April 15, 2015, the PHA promulgated new subsidy standards providing in pertinent part that the PHA “may grant an exception to these subsidy standards if the exception is justified by the health or disability of family members,” thereby restricting the criteria it had the discretion to consider under the 2013 standards. In this case, it is undisputed that the 2013 standards apply.

Here, the hearing officer referenced the pertinent 2013 standards for granting exceptions, but apparently applied the 2015 standards when he concluded that health and disability were the only factors to consider, thereby upholding the local PHA’s determination that it wasn’t required to consider personal circumstances unless they were related to the health or disability of the resident’s family members. While the PHA is afforded the discretion not to consider familial and/or other personal circumstances under the 2013 standards, the 2015 standards contain no enumeration of the other discretionary factors set forth in the 2013 standards. Thus, it may be reasonably inferred that the hearing officer disregarded the other discretionary factors set forth in the 2013 standards: age, sex, relationship of family members, or personal circumstances, in the mistaken belief that they didn’t apply.

As the denial of the resident’s appeal was based on the PHA’s misapplication of its own guidelines, the court concluded that the PHA’s decision merits no deference and is arbitrary and capricious.

• Washington v. NYC Dept. of Housing Preservation and Development, July 2016