Sustainable Communities

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THE LEGALITY OF TREATING THE WELSH LANGUAGE AS A POSITIVE FACTOR WHEN LETTING SOCIAL HOUSING

Introduction

1. One of the recommendations of the report of the Commission for Welsh-speaking Communities (August 2024),1 in relation to communities with a higher density of Welsh speakers, was:

“Recommendation 33: Local authorities and planning authorities should consider whether models can be developed for the letting of social housing or in drawing up Section 106 agreements, where the Welsh language may be one positive consideration alongside other considerations. Any model should be scrutinised to ensure there is no unacceptable disadvantage to the non-Welsh-speaking population, and to ensure compliance with relevant equality legislation.”

2. I was asked by Cymdeithas yr Iaith Gymraeg (‘Cymdeithas’) to express an opinion on the legal question that was raised in the last sentence of the Recommendation, namely whether treating knowledge of the Welsh language as a positive factor, when making decisions to do with the letting of social housing, would comply with equality legislation.

3. In a letter dated 11 February 2025, the office of the Welsh Language Commissioner confirmed that the Commissioner had received legal advice on the matter. As a matter of policy, the Commissioner has not disclosed the full advice. However, the letter summarizes the main findings of the advice given, including a conclusion that using the ability to speak Welsh, in a proportionate manner, as a consideration when letting social housing, would not be unlawful. This reinforces, of course, Cymdeithas’s wish to press for the full implementation of the Recommendation. However, Cymdeithas, having not seen the details of the legal advice, are not confident that they fully understand the full legal implications of implementing the recommendation. I was asked therefore to re-visit the question in a way that would allow Cymdeithas yr Iaith to do so.

My opinion

4. In accordance with the advice received by the Welsh Language Commissioner, I am also of the opinion that treating knowledge of the Welsh Language as a relevant factor when allocating social housing, and in accordance with appropriate conditions, is legal. I shall explain, when giving my reasons, which conditions would be appropriate in this context.

5. Here are my reasons for reaching this conclusion:

(i) Even though the statutory provision which regulates social housing allocation (section 167 Housing Act 1996) prescribes some classes of applicants for accommodation to whom the local authority must give ‘reasonable preference’ when allocating housing, this allows discretion for authorities on how to prioritise different applicants amongst themselves and to allocate housing to applicants who do not fall within the listed categories. This was decided by the House of Lords in the case of R (Ahmad) v Newham LBC (2009)2;

(ii) Any allocation policy must be compatible with the normal principles of administrative law – it must be legal, logical, and fairly administered. These requirements are explained further below;

(iii) A policy aimed at strengthening the linguistic character of Welsh speaking communities is consistent with public policy in Wales - see:

• Welsh Language (Wales) Measure 2011

• Well-being of Future Generations (Wales) Act 2015

• Statutory Welsh-language strategy (‘Cymraeg 2050’) and

• Planning (Wales) Act 2026 (sections 14(3), 16(2), 18(2), 22(2) a 408(3)).

(iv) Statutory advice on housing allocation by the Welsh Ministers also supports the proposition that protecting the Welsh language is a part of public policy - ‘Code of Guidance for Local Authorities on the Allocation of Accommodation and Homelessness’ (English only) March 20163. See, for example, paragraph 3.69:

‘Local letting policies can be used to address a number of issues such as:

• Sustaining Welsh-speaking communities by giving priority to those in housing need with a local connection to the local area;’

(v) The use of a language is not a protected characteristic under the Equality Act 2000, and Welsh speakers are not an ethnic group (see Gwynedd County Council v Jones (1986)4). However, introducing a condition requiring knowledge of a specific language in order to receive a service or benefit could amount to treating someone less favourably on the basis of race (nationality or national or ethnic origin), as the ability to speak a language differs according to nationality - someone of Welsh nationality is more likely to be able to speak Welsh than someone of another nationality. Imposing such a condition could therefore be a form of indirect discrimination. Nonetheless, section 19(2)(d) allows conduct that would otherwise constitute illegal indirect discrimination if it can be shown to be a proportionate means of achieving a legitimate aim;

(vi) As noted above (sub-paragraphs (iii) and (iv)), the aim of protecting the Welsh language is recognised as a part of public policy, and is therefore a legitimate one.

6. I referred above (paragraph 5 (ii)), to the general legal principles that would need to be respected in order to make consideration of knowledge of the Welsh language legal when allocating housing. The process of making relevant decisions would have to be administered fairly, but would also, as mentioned in sub-paragraph 5(v), need to be shown to be a proportionate means of contributing to the protection of Welsh-speaking communities.

7. The meaning of ‘proportionality’ under administrative law is that an action (for example the adoption of a policy) has been aimed at achieving a legitimate outcome, that there must be a logical connection between the policy and that outcome, and that the policy, in seeking to achieve the goal, does so in a way that interferes as little as possible with the rights of the individual.

8. Defending the proportionality of treating knowledge of the Welsh language as a considerable factor when allocating housing would be a matter of policy and not one of law, but it is significant that the Commission for Welsh-speaking Communities has come to the conclusion that doing so would be a valuable contribution towards the protection of the character of Welsh-speaking communities.

9. It would be necessary, of course, to consider those details of the policy that would be relevant to its proportionality:

i) Geographic Application

It is clear that applying the policy to areas with a very small percentage of Welsh speakers would not be likely not be seen as proportionate. The Commission developed the idea of ‘areas of high-density linguistic significance’, and applying the policy to such areas, however they are defined, would be of aid when trying to defend their proportionality;

ii) The Nature of the Consideration

I understand that the aim is to make it clear that knowledge of the Welsh language is only one consideration when allocating housing, and that other considerations could, under specific circumstances, take priority over it. That would also help demonstrate that the policy would be proportionate;

iii) The factor to be considered

I also understand that the policy would be formed in a way that would make it clear that the factor that would be considered would be the likelihood that the presence of the applicant (and those who would live with the applicant) would tend, based on their ability to speak Welsh, to strengthen or weaken the Welsh-spealing character of the community. That would therefore allow an assessment of that tendency to be carried out on the basis of the characteristics of the individual case. That would, for example, allow the impact of letting a house to a family with members of varying linguistic ability to be considered on the basis of individual circumstance. Again, making this clear when wording the policy would reinforce the argument that the system is proportionate.

The Adoption of the Policy

10. In response to Recommendation 33 of the Commission for Welsh-speaking Communities5, the Welsh Government said:

‘Local letting policies are matters for local and planning authorities, who are required to have an allocations scheme for determining priorities in allocating housing. Local authorities are best placed to understand and respond to the housing need of their local communities, and to prioritise those who are most in need. When determining their specific schemes, all local authorities in Wales must have regard to the Welsh Government’s Code of Guidance for Local Authorities: Allocation of Accommodation and Homelessness.’

11. The principle of using local connection, under local allocation policies, to uphold Welsh-speaking communities is also something that local authorities could do without having to be advised to do so by the Welsh Government. However, as is noted above6, the present Code of Guidance goes out of its way to draw the attention of local authorities to that principle. It is not obvious, therefore why the Welsh Government would not wish to draw the attention of local authorities to their ability to include, in their local allocation plans, a policy of treating the ability of an applicant (and of those who would be living with the applicant) to speak Welsh as a consideration (alongside other considerations) when allocating social housing in areas of high-density linguistic significance in the same manner. Indeed, unless this is done, there is a risk of creating the impression that the policy is not as legitimate as that relating to local connection. As it happens, the Welsh Government is currently updating the Code of Guidance, which means that there is a convenient opportunity to include a reference to the additional consideration of the applicant’s language.

Summary

12. For the reasons discussed above, and subject to the conditions I have noted, I confirm that I am of the opinion that treating knowledge of the Welsh language as a positive consideration, when making decisions relating to the allocation of social housing, complies with equality legislation, and with administrative law in general.

Keith Bush
March 2026

1 Empowering communities, strengthening the Welsh language

2 [2009] UKHL 14. Section 167(2E) also makes provision in relation to the allocation of housing to those who do not fall under subsection (2) but it appears to relate to applications in relation to specific housing units and does not relate to determining priorities between different applicants under subsection (2). It does not appear to be relevant, therefore, to a general policy of giving consideration to an applicant's language and does not displace the general discretion identified in Ahmad.

3 allocation-of-accommodation-and-homelessness-guidance-for-local-authorities.pdf.

4 [1986] ICR 833.

5 Welsh Government response to the report of the Commission for Welsh-speaking Communities

6 Sub-paragraph 5(iv).

INTRODUCTION

Our rural and coastal communities are facing an unprecedented lack of affordable homes because of the increasing gap between the levels of local income and house prices to buy and to rent. Young people and families are forced to leave their communities, affecting the provision of essential services, the future of rural schools, the workforce available to local businesses and the sustainability of our Welsh-speaking communities. The appalling reduction in the number of Welsh speakers to 17.8% of the population according to the 2021 Census Is proof positive of this.

The period of the COVID pandemic showed the damaging effects of the open market at its worst e.g. ferocious competition for houses as wealthy people escaped from the cities, houses in seaside villages being bought overnight as second homes and holiday homes, private landlords evicting local tenants and letting their houses as holiday accommodation, leading to the local population’s being priced out of the housing market in their own communities.

Further evidence of this was seen as more and more people from Wales applied for social housing, experiencing homelessness and facing a precarious life in temporary accommodation. At present, it is estimated that almost 90,000 households are on social housing waiting lists and we know that 10,900 people were living in temporary accommodation at the end of July this year, including 3,350 children under the age of 16. In 2022/23 the number of households assessed to be homeless by local authorities was more than 12,500. Only 30% of these received help to successfully secure accommodation.

Urgent steps must be taken to deal with the serious economic and social inequality caused by the current housing crisis in communities across Wales.

The package of planning measures, local taxation and licensing that the Welsh Government announced in 2022 to deal with second homes and short-term holiday lets is welcome. However, by themselves they will not do much to reduce the numbers of second homes and holiday lets nor improve the ability of the local population to secure truly affordable homes.

The Welsh Government’s target to build 20,000 new social homes during its present term (2021-26) is far from being adequate. The supply of affordable homes for medium- and low-income households must be increased substantially, for rent and for purchase, by building new houses and putting more emphasis on procuring housing from the current stock.

Securing a much higher rate of homes in public and community ownership via local authorities, housing associations, community ownership enterprises and co-operative enterprises will also positively influence affordability in the wider housing market.

If we want to ensure the continuation of Welsh as a living community language, we must reject the neo-liberal economic philosophy which has been promoted by successive UK governments for over 40 years. An early example of this belief in the open market and privatising public services was introducing the Right to Buy council houses in 1981. By the time the Right to Buy was abolished in Wales in 2019, over 139,000 social homes on rent had been lost to the open market, a factor which contributed greatly to the current housing crisis.

This is why the entire housing system must be transformed to put local needs before profit and to treat houses as social assets for the benefit of all. The campaign for a Property Act is nothing less than a campaign for the future of all the communities of Wales, be they Welsh-speaking, English-speaking or multicultural.

We call on the Welsh Government to take urgent steps to deal with the housing crisis and safeguard the future of our local communities by passing a progressive Property Act during this government term. Our proposals for the measures to be included in a Property Act for Wales are below.

Download Cymdeithas' proposals for a Property Act

These calls were updated in November 2023 and can be seen above

    AIM 1: A RIGHT TO A HOME LOCALLY
Place a responsibility on Local Authorities to act on a request by local people for a home to buy, rent or via a hybrid scheme - within a reasonable distance and time.

A Property Act would:
    i. place a duty on local authorities to ensure suitable housing solutions for local people within a reasonable distance and time;
    ii. give local authorities broad discretionary powers to be resourceful in facilitating suitable housing solutions within a reasonable distance and time;
    iii. place a duty on other community housing providers - housing associations and community-owned enterprises - to assist the local authority to ensure suitable housing solutions for local people within a reasonable distance and time.

AIM 2: PLAN FOR LOCAL NEEDS
Place a responsibility on Local Authorities to co-produce regular Community Assessments in each area of the county with communities as equal partners. These would underpin housing policies, land use and public policies such as transport and education.

A Property Act would impose duties on local authorities to:
    i. produce a Community Assessment jointly with individual community councils at least every 5 years;
    ii. draw up a Local Housing Strategy that reflects the results of the Community Assessments through an investment programme of specific projects to be commissioned for each community where local needs have been identified;
    iii. amend their land use policies and housing targets in the Local Development Plan in accordance with the results of the Community Assessments in order to enable suitable solutions to local needs.

AIM 3: EMPOWER COMMUNITIES
Strengthen the rights of communities to own and control housing, land and community assets through community-led organisations. Place a duty on public bodies to dispose of or lease land and property to community-owned social enterprises.

A Property Act would introduce a Community Right to Buy empowering communities to buy and lease land and property from private and public landowners for community purposes, including community-led affordable housing initiatives.

AIM 4: PRIORITISE LOCAL PEOPLE
Create a housing and property system that meets local needs and protects communities from the effects of the free market; impose conditions on ownership and sales that give local people or community-led organisations first rights to buy or rent houses and to buy land and property in accordance with the Community Assessments.

A Property Act would:
    i. place a duty on local authorities to ensure, in communities where the Community Assessment shows unmet local needs, a moratorium on the sale of property to anyone without a local connection;
    ii. give powers to local authorities to require property sellers to advertise locally first;
    iii. place a duty on Welsh Government and local authorities to ensure that community housing providers implement letting policies that prioritise local applicants in accordance with the latest Community Assessments.

AIM 5: CONTROL THE RENTAL SECTOR
Control rent levels, housing standards and tenancy conditions to ensure quality affordable homes in the private rented and social housing sectors.

A Property Act would:
    i. amend the Renting Homes (Wales) Act 2016 to give tenants of private landlords the right to receive Secure Contracts;
    ii. control the rents of private landlords and community landlords to ensure they are affordable for tenants on lower than median incomes.

AIM 6: SUSTAINABLE HOMES
Ensure that the existing housing stock and new homes are affordable, reduce carbon and are compatible with community needs – by adhering to the principle of sustainable development.

A Property Act would:
    i. place a duty on Welsh Government and Local Authorities to ensure that their housing and planning policies, Development Plans, Local Housing Strategies and housing investment programmes satisfy the principle of sustainable development and the well-being goals of the Well-being of Future Generations Act 2015;
    ii. amend the Well-being of Future Generations Act 2015 by extending the duty to act in accordance with the sustainable development principle and work towards the well-being goals to include private landowners, housing developers and community housing providers.

AIM 7: INVEST IN COMMUNITIES
Enable communities to exercise their rights to own housing, land and community assets through a Community Wealth Fund. Facilitate low interest loans from a community bank, such as Banc Cambria, for local people and community led enterprises.

A Property Act would:
    i. place a duty on Welsh Government to establish and fund a Community Wealth Fund (similar to the Scottish Land Fund);
    ii. give powers to local authorities to offer loans and grants and to invest equity in community-led enterprises;
    iii. give powers to Welsh Government and local authorities to invest in a Community Bank fund for low interest loans to local people and community owned enterprises.

Download Cymdeithas yr Iaith Property Acts Proposals documnet 2022