Reasonable Accommodation Requests and Housing
Download
Report
Transcript Reasonable Accommodation Requests and Housing
Housing Rights for Tenants
with Disabilities
NAVNEET GREWAL
NATIONAL HOUSING LAW PROJECT
LAAC FRESNO TRAVELING TRAINING
NOVEMBER 17, 2009
www.nhlp.org
Goals
Identify when a reasonable accommodation may be
requested
How to request a reasonable accommodation
Enforcement Options
Statistics
41% of families living in federally assisted housing have at
least one family member who is disabled.
41,101,667 people with disabilities
2007 American Community Survey:
Overview and Rules
Obstacles to Obtaining Housing
Poor credit history related to disability
Lack of accessible units
Housing provider has a no-pets policy
Limited mobility prevents applicant from coming to
housing authority for interview
Inability to find an accessible unit within a voucher
payment standard
Inability find a unit within the time from allotted by
the housing authority
Obstacles to Maintaining Housing
Missing Rent Payments
Hoarding/Clutter
Threatening behavior towards others
Requesting a live-in aide
Denials of portability
Denials of transfers
Missing recertification appointments
Missing housing inspections
How to Access Housing
7
If a tenant has an obstacle to obtaining or
maintaining housing because of a disability, the
tenant can request a reasonable
accommodation.
A reasonable accommodation is a change in a rule,
policy, practice, or service that may be necessary to
allow a person with a disability the equal opportunity
to use and enjoy a dwelling.
Sources of Law
FHA: 42 U.S.C. § § 3604, et seq
Section 504 of Rehabilitation
Act: 29 U.S.C. § 794
ADA 42 U.S.C. §§ 12131 et seq (and ADAAA)
CA Laws: FEHA, Unruh,
CDPA, CA Gov’t Code §11135
When Must a Housing Provider Grant a Request?
9
When a qualified person with a disability makes
a request that is:
NECESSARY + REASONABLE =
MUST GRANT ACCOMMODATION
Qualified Person with a Disability (Federal)
10
Any person who:
has a physical or mental impairment that substantially limits
one or more major life activities;
has a record of such impairment; or
is regarded as having such an impairment
A current illegal user of a controlled substance is not disabled
for the purposes of reasonable accommodation. However, an
individual with a disability can include someone who has
successfully completed a drug rehabilitation program, is
currently in such a program, or is mistakenly regarded as
engaging in illegal drug use.
Necessary
Frees the tenant from a rule, policy, or practice that
interferes with the person’s right to use and enjoy the
dwelling.
Enhances the person’s quality of life by ameliorating the
effects of the disability.
Enables the tenant to satisfy the essential requirements
of tenancy.
Reasonable
12
No undue financial or administrative
burden
Can not fundamentally alter the nature of the
program.
Considerations for undue financial burden: benefit
to tenant, costs, financial resources, and
availability of less expensive accommodation.
Will often cause at least some financial burden.
Fundamental Alteration: the request would
require the provider to change the nature of the
services it provides
Direct Threat
13
An accommodation may be denied if the tenant
poses a direct threat to the health and safety of
others. This must be objective, not subjective.
Must look at nature, duration, severity of risk of
injury, probability injury will occur, any
accommodations that could eliminate the direct
threat.
Making a Request
Making a Request
15
Disability: State that the tenant has a disability.
It does NOT need to say the name of the disability
and provider can not ask for medical records.
Accommodation: The request should state what
accommodation the tenant is looking for.
Nexus: The request should state how the
accommodation is related to the person’s disability
and how it will help them access, utilize, or remain
in the housing program.
Making a Request
16
Requests may be oral or written.
The reasonable accommodation process begins once
a tenant tells a housing provider that they are
disabled and need something changed in order to
accommodate that disability.
Written requests may be preferable
Can be made at ANY TIME.
Denial
17
If the housing provider finds that the requested
accommodation is not reasonable, it’s obligation does not
end.
The provider should engage in an interactive process
and try to determine with the tenant if another
accommodation is feasible.
If no alternative accommodation is agreed to, treated as a
denial of the original reasonable accommodation request.
For federally assisted housing – right to request a Section
504 hearing, which often substitutes as the interactive
process.
Enforcement Methods
Informal Advocacy
Engaging with the housing provider
Written request
Follow-up
Interactive process
PHA hearing
Answer to UD
A reasonable accommodation may be requested as
an answer to an unlawful detainer action
The request may be made even after the action has
been filed, until the “proverbial last minute.”
Note that raising a reasonable accommodation issue
in a UD may prevent the issue from being raised
affirmatively as a fair housing claim.
HUD/DFEH Complaint
One year statute of limitation
Can be filed quickly – online, by mail, or by phone
Duty to conciliate
If conciliation fails and HUD finds cause, may
proceed to ALJ, or through DOJ in federal court
Often difficult to get a finding of cause
Will often push the housing provider to settle
Compensatory damages, injunctive or equitable
relief, and civil penalties in the public interest
between $11,000 to $55,000.
Affirmative Litigation
Two Year Statute of Limitations
Can be filed concurrently with HUD/DFEH
complaint
State or Federal Court
Compensatory damages, injunctive or equitable
relief, and punitive damages, attorney fees
Writ of Mandamus
A court may issue a writ of mandate to any “to any
inferior tribunal, corporation, board, or person”
Compels performance, stays action, or requires the
lower authority to show cause why it is not in
compliance with the law in question
90 days from date that administrative decision
becomes final
Summary
If a tenant with disabilities is having difficulty
accessing or maintaining housing, advocates should
consider whether a reasonable accommodation
request is appropriate
If a request is denied, there are several options for
enforcement of a tenant’s fair housing rights to
pursue
FOR TECHNICAL ASSISTANCE, TRAININGS,
AND ONLINE RESOURCES:
NAVNEET GREWAL
STAFF ATTORNEY
NATIONAL HOUSING LAW PROJECT
[email protected]
(510)251-9400 EXT. 3102
HTTP://NHLP.ORG/RESOURCECENTER?TID=63