June 10, 2010 – Where the Housing Authority denies an application for rent assistance, it must adequately identify the authority that justifies the denial, the appeals court recently held.

In Bratcher v. Housing Authority of the City of Milwaukee, 2009AP2204 (June 8, 2010), Leverna Bratcher applied for rent assistance through the federally funded Rent Assistance Program, administered by the Housing Authority of the City of Milwaukee (Housing Authority).

The Housing Authority denied Bratcher’s application because a background check revealed she had been arrested for battery and found guilty for disorderly conduct. Pursuant to federal regulations, the notice allowed Bratcher to request an “Informal Review,” which she did.

The informal review hearings officer upheld the denial due to the disorderly conduct incident (not the battery arrest), stating “this is the type of behavior that the Rent Assistance Program tries to screen out.”

Bratcher sought certiorari review in Milwaukee County Circuit Court, which granted the petition. The circuit concluded that the Housing Authority did not provide adequate notice prior to the informal review and offered a deficient explanation for its denial upon review. It remanded the case back to the Housing Authority for another hearing.

The Housing Authority appealed, and this appeals court affirmed.

Inadequate notice and decision

The appeals court held the Housing Authority’s written notice and written informal review decision were insufficient under Driver v. Housing Authority of Racine County, 2006 WI App 42, 289 Wis. 2d 727, 713 N.W.2d 670. In that case, the court considered claims based on insufficient written notice and a decision for termination of housing benefits.

Noting the differences in a case for termination of housing benefits and a case denying rent assistance, the appeals court nevertheless held that Driver applied.

The Driver case discussed two other cases, the court noted, that required a written notice “inform the tenant of the allegations so that he can prepare a defense” or include information so the applicant “can test the veracity of the agency’s findings against him.”

Here, the court found, the “written notice simply stated Bratcher’s application was being denied ‘based on the findings of [the] background check,’” and listed the arrest and forfeiture. The notice “failed to provide any details” about the incidents or “explain the legal significance of those events,” the court found.

The appeals court also followed Driver to determine that the informal review decision was inadequate. The written decision “included more facts, but, like the written notice, it failed to explain how those facts constitute a basis for denial of rent assistance,” the court found.

What is necessary under Driver?

Under Driver, the Housing Authority was required to identify the authority that justified denial based on a civil forfeiture for disorderly conduct, the court held.

Although the regulation states that applications can be denied for previous “criminal activity” that threatens peace or enjoyment for other residents, neither the notice nor the informal review decision explain how a civil forfeiture constitutes “criminal activity,” the court noted.

The circuit court’s remedy – to remand for a new informal hearing – was also proper, the appeals court held. Thus, it refused to address whether the Housing Authority’s evidence was insufficient to support the hearing officer’s denial decision.