Welsh language and social housing allocation: A legal controversy

There has been an interesting controversy arising from the attempt by Grŵp Cynefin to develop social housing in the Gwynedd coastal village of Trefor which, as I understand it, was backed by Trefor and Llanaelhaearn Community Council only if it would be reserved for people who are “able to speak Welsh” (the controversy is reported here and here, for example).  That request was rejected by the planners at Gwynedd Council.  In an impassioned plea reported on BBC:

Community councillor Jina Gwyrfai said: “Even though over 70% of residents here speak Welsh we are at that critical linguistic tipping point and 15 houses using the wrong language can make a detrimental difference.

We know there are many policies to protect landscapes, biodiversity, building standards and bats… everything, and I welcome such policies.

But our Welsh-speaking communities, which are shrinking and diminishing year on year, are just as important.. where are the policies to protect those?

The legal issues here are not uninteresting and I have spent a little time wondering about it.

Looking at the Gwynedd housing allocation scheme, it bands applicants into four categories depending on housing need but also depending on a Gwynedd connection.  The latter is explicit, and forms a distinction in the top band between sub-categories a and b (but it is not clear to me why the top band is distinguished in this way – are those with a connection in the top band given greater priority?  The scheme does not suggest so: “Vacant properties will be offered first to applicants in Band 1 in accordance with the band criteria” – para 4.2), and is the distinction between bands 2 and 3 (which otherwise reflect housing need).  The definition of Gwynedd connection, at para 3.12,  is interesting – it requires five years residence at any time or five years employment; or family associations; or support giving/receiving in the area; disability related conditions linked to being offered a job or attend school or receive support; or an armed forces connection.

Paragraphs 4.28-4.31 of the scheme allow for “local lettings policies”.  These have statutory backing (s. 167(2E), Housing Act 1966).  The scheme suggests that these “… are used to achieve a wide variety of housing management and other housing policy objectives, and are usually developed where there is a wish to alter the balance of the community or ensure a balanced community at the stage where a new development is let” (4.29); and, further:

Each of the housing association partners will have the ability to introduce Local Lettings Policies in areas of their stock and those policies will be approved by the relevant Housing Association’s Board. (4.30)

The media reports I have seen quote the Deputy Commissioner for the Welsh Language, Osian Llywelyn, saying that ‘while Welsh language skills can be considered part of housing policy, “no linguistic consideration prevails over the statutory requirements set out in the 1996 Housing Act”‘; and, further, Nation Cymru reports that “As part of its justification, the community council said the Commissioner had received a legal opinion “which states unequivocally that it would not be illegal to make ‘able to speak Welsh’ a condition for the letting of social housing”; and, the North Wales Chronical reports Mr Llywelyn as saying:

“Following receipt of legal advice relating to the Housing Act 1996, our understanding is that Welsh language skills can be considered as part of a housing allocation policy.

However, it must be emphasised that no linguistic consideration overrides the statutory requirements set out in the Act.

Specifically, local authorities have a duty to give reasonable priority to individuals in certain circumstances, such as people who are homeless or who need to move for medical reasons.

… We emphasised that the legal advice stated that a linguistic condition could be included as part of a policy, but that this does not supersede other legislative requirements.

It should also be noted that Gwynedd Council already prioritises people with a local connection, and the evidence suggests that this approach ensures that a high percentage of those who are allocated housing are Welsh speakers.”

So, there we have it.  Or do we?  In what follows, I emphasise that I am just going on media reports which do not reflect always the underlying nuances of the issues and discussions.  But, given the importance of the issue, it is worth us scratching the surface a little (and definitely not offering legal advice, just some thoughts).  Here goes:

I just wonder if the law is that clear-cut on this issue relating to 15 homes (as opposed to a Welsh language condition in a scheme – which Gwynedd does not have).  Of course it is the case that certain categories of household are given “reasonable preference” on housing registers, but nobody has a “right to a home” through the register at any rate, and provided households are given “a reasonable head start”, that may satisfy that rather nebulous idea of “reasonable preference”.  It certainly does not mean absolute priority.  And, as Lord Neuberger put it “… [A]s a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies”: Ahmad v Newham LBC [2009] UKHL 14, [46].  In that case, Newham’s scheme was impugned because 5% of its allocations went to transfer households, allocation was by date order within bands.  In relation to the former, Baroness Hale said

It is accepted that the council are entitled to allocate properties to people who do not fall within the reasonable preference groups. It is accepted that they may take into account wider housing management considerations as well as the needs to which reasonable preference must be given.

My point here is that 15 homes represents a small part of the social housing estate in Gwynedd.  A Welsh speaking requirement (which was constructed carefully as able to speak Welsh) could be constructed in housing management terms and would not override the reasonable preference categories as a local lettings policy affecting a small number of homes with a wider public policy importance.  That housing could have been offered in accordance with the allocation scheme to Band 1 applicants (for example) who were able to speak Welsh.  My strong suspicion is that the case law after Ahmad (which does roll back somewhat on that judgment) might nevertheless support this in relation to a defined scheme.