Summary: There was no fault by the Council which acted in line with government guidance when it refused Ms X a blue badge.

The complaint

1. Ms X complained Devon County Council (the Council) refused her application for a blue badge. She complained the assessor dealing with her appeal misreported what she said. Ms X also said the Council did not consider the criteria about mental health when considering her application.
2. Ms X said the Council’s decision has affected her mental health and quality of life, causing stress and anxiety as she cannot go to places where she cannot park near enough.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

5. I considered Ms X’s complaint to the Ombudsman and documents described later in this statement. I discussed the complaint with Ms X.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. Blue badges enable people with a severe disability to park where restrictions would normally apply. Government guidance sets out criteria for a blue badge. Some people are automatically entitled to a badge, but these criteria did not apply to Ms X.
8. If they are not automatically entitled, an applicant has an assessment by an expert assessor whose role is to determine whether the applicant has an enduring and substantial disability which causes them to
• Be unable to walk
• Experience very considerable difficulty while walking, including very considerable psychological distress or
• Be at risk of serious harm while walking or pose a risk of serious harm to another person.
9. Government guidance on blue badges (paragraph 4.46) sets out factors relevant in deciding whether an applicant meets the criteria:
• the level of pain experienced by an individual when they are walking, or as a consequence of walking
• the degree of breathlessness they incur when, or as a result of, walking
• the distance over which an individual is able to walk
• the speed at which an individual is able to walk
• the length of time that an individual is able to walk for
• the manner in which the applicant walks
• an applicant’s use of walking aids
• the applicant’s outdoor walking ability
• whether the effort of walking presents a danger to the applicant’s life or would be likely to lead to a serious deterioration in their health.
10. An applicant might also meet the criteria if they experience very considerable psychological distress whilst walking as part of a journey. (Paragraph 4.47)
11. Applicants who can walk 80 metres or more and do not demonstrate very considerable difficulty walking through any other of the factors in paragraph nine, would not be eligible (Paragraph 4.50).
12. Guidance makes it clear that walking difficulty can be caused by a physical disability or by a non-visible (hidden) disability and that ‘very considerable psychological distress’ is included as an example of the kind of difficulty which can be experienced when walking which can be unrelated to their physical ability to walk. (Paragraph 4.31)
13. Guidance explains it is for each council to adopt an assessment approach which complies with the law (Paragraph 4.60.)
14. The Council’s process is to complete an in-person assessment in some cases using a standard form with questions based on the criteria in paragraph nine and points scored depending on the applicant’s answers. If an applicant is unsuccessful, they can appeal and the appeal is dealt with by a different assessor.

What happened

15. Ms X has a condition affecting her legs which causes pain, fatigue, swelling and easy bruising. She applied for a blue badge in June 2021. Ms X put on the application form that the condition caused her severe pain when walking and she had days where she could not walk at all. She said on a good day she could walk from her house to the supermarket and this took 10 to 15 minutes and on bad days she could not walk and could be housebound. She said she had to stop for regular breaks and used pain relief. She used walking poles and compression stockings.
16. The Council referred Ms X for a mobility assessment. A physiotherapist observed Ms X walking. The form noted Ms X’s views and that she said the day of the assessment was a good day for her. The physiotherapist noted:
• She was not breathless walking
• The assessment took place inside and outside the centre
• On examination, there were no physical restrictions to moving
• Ms X was observed walking 80 meters, she reported pain at 50 meters but did not stop
• Her walking pattern and speed were normal (61 to 90 meters a minute), she needed no rest and she did not use walking aids.
17. The outcome was that Ms X did not meet the criteria for a blue badge. The Council emailed Ms X to let her know, provided her with a copy of the assessment report and informed her of her right to appeal.
18. Ms X appealed saying she believed her pain when walking meant she was entitled to a blue badge. She said on bad days she could not walk at all and the day of the assessment did not reflect her general life.
19. A different assessor conducted Ms X’s appeal. The assessor spoke to Ms X on the phone. Their report noted Ms X said:
• She could walk the length of her driveway which she estimated at 70 to 90 meters
• She could walk from her home to the supermarket which was 450 to 500 meters when pain levels were tolerable
• She did not have good or bad days but symptoms varied and were worse in the evenings
• She avoided walking when pain was worse and used a walking pole when required.
20. The outcome was Ms X did not meet the criteria for a blue badge. The Council told Ms X that it did not dispute her condition affected her mobility, but this was not at the level to meet the definition of ‘very considerable difficulty walking’
21. Ms X said in her complaint to us that the assessor who dealt with her appeal wrongly put on the papers that she had said she could walk from her home to the supermarket. Ms X denied saying this.

Findings

22. If a council assessed an applicant in line with government guidance, we will generally not find fault unless the assessor has incorrectly interpreted the guidance. The guidance gives councils discretion in conducting mobility assessments and this discretion includes how much weight to give evidence, how to assess symptoms which fluctuate and how to treat conflicting evidence.
23. There is no fault by the Council. I am satisfied it followed the guidance and applied it correctly by carrying out a visual assessment of Ms X walking, noting her pain. As she was able to walk 80 meters at a normal pace and the assessor considered all the other factors impacting walking including pain and her variable symptoms as described in paragraph nine, there is no fault.
24. Ms X denies telling the assessor who conducted the appeal that she could walk from her home to the supermarket. However, I note Ms X wrote this on her original application for a blue badge. So even if Ms X did not tell the assessor she could walk to the supermarket during the call, Ms X had previously written this on her application form and so the Council was entitled to take this information into account when determining the appeal.
25. Ms X suggested in her complaint to us that the Council failed to recognise her anxiety/ mental health. However, she did not mention this in the paperwork she submitted to the Council and there is no mention of it in any of the Council’s records of the mobility assessment or in the appeal documents. So there is no fault in the Council failing to consider psychological impact. In any event the Council is not required to consider psychological impact of having the condition generally on Ms X, only in the context of her walking. To clarify, it is not relevant to an applicant’s eligibility for a blue badge that they are psychologically distressed by having a condition or disability, it is psychological distress caused during walking that is relevant.

Back to top

Final decision

26. There was no fault by the Council which acted in line with government guidance when refusing Ms X a blue badge. I completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman