Cornwall Council (18 000 384)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 19 Dec 2018

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to properly assess her mobility for a blue badge. There is fault in both mobility assessments the Council conducted. The Council has agreed to apologise to Mrs X for failing to conduct the assessments correctly, arrange a fresh assessment to be conducted in accordance with the relevant guidance and pay her £100 for her time and trouble spent on pursuing this complaint.

The complaint

  1. Mrs X complains the Council failed to properly assess her mobility for a blue badge and wrongly refused her application. Mrs X complains the second mobility assessment is heavily based on the incorrect judgements and reasoning relied on in the first assessment.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)

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How I considered this complaint

  1. I discussed Mrs X’s complaint with her on the telephone and I considered the documentation she provided.
  2. I have considered the information provided by the Council.
  3. Mrs X and the Council had the opportunity to comment on a draft of my decision. I have considered the comments received from Mrs X and the Council.

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What I found

  1. The Department for Transport (DfT) has published non-statutory guidance for councils on the Blue Badge Scheme. This is called ‘The Blue Badge Scheme Local Authority Guidance England October 2014’.
  2. The Blue Badge Scheme allows people with severe mobility problems and registered blind people to park close to their destination.
  3. Councils are responsible for the day to day administration and enforcement of the scheme. This includes assessing whether people are eligible for the blue badge.
  4. There are two ways of qualifying for a blue badge. People qualify if they receive certain benefits. This is known as automatic qualification. People also qualify through an assessed route if they have a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking.
  5. The assessed route involves a desk based assessment of eligibility based on information the applicant provides. If this is not conclusive, the council can ask the applicant to attend an assessment centre. A health professional can then observe the applicant’s ability to mobilise and gather further information about the applicant.
  6. An eligibility assessment should be completed by an independent mobility assessor and the guidance sets out the factors to be considered when assessing a person’s mobility. This includes distance, speed of walking, length of time an applicant can walk for, excessive pain, breathlessness, manner of walking and use of walking aids.
  7. At section 4.4 (b) of the guidance it says:
    • If an applicant cannot walk 40 metres (44 yards) in a minute (a pace of less than 0.67 metres/second), including any stops to rest, then this is an extremely slow pace which is likely to make walking very difficult when considered in isolation.
    • The applicant may be deemed eligible if they can walk 30-80 metres (33-87.5 yards) without pain or breathlessness, but demonstrate very considerable difficulty in walking through a combination of other factors (e.g. extremely slow pace and/or their manner of walking).
  8. The guidance says eligibility is not determined by the presence or absence of any particular diagnosis or condition. Instead, a decision should be based on whether the applicant’s difficulty in walking meets the criterion in the regulations.
  9. The guidance recommends a council should have a review mechanism, which preferably does not involve someone directly involved in the original decision. The Council has a two-stage appeal process for applicants who are unhappy with its decision.

What happened

  1. Mrs X has had a blue badge for six years. She has a history of arthritis affecting both knees, her lumbar spine and left foot.
  2. Mrs X applied to renew her blue badge in February 2018.
  3. An Assessor for the Council called Mrs X’s landline to obtain more information about her application and mobility. Mrs X was not at home and the Assessor discussed her application with Mr X, Mrs X’s husband.
  4. The Assessor decided more information was required to determine if Mrs X was eligible for a blue badge and made arrangements for an independent mobility assessment to be carried out by a registered medical professional.
  5. The mobility assessment was scheduled to be carried out on 29 March 2018. Mrs X was unhappy the assessment date was two days before her blue badge expired. The Council changed her assessment date to 14 March 2018.
  6. Mrs X sent an email to the Council after the assessment with her concerns. She said she was told they had covered 80 metres in the assessment but she felt it was less than that. Mrs X was also concerned there was an observer present at the assessment. Mrs X later measured the distance covered and says it was approximately 60 metres.
  7. The Council declined Mrs X’s application for a blue badge based on the advice of the Assessor. The Assessor said that Mrs X does have a disability that causes some difficulty when walking however it falls below the DfT’s definition of ‘very considerable difficulty walking’. The Assessor also said ‘the [DfT] guidance clarifies that the applicant would have to demonstrate severe discomfort due to pain or breathlessness that impacted on their ability to walk and would be unable to walk 30m or only able to walk up to 80m with very considerable difficulty’.
  8. The Assessor also said that Mrs X reported that in the summer she is able to park at a local beach with her blue badge, walk a distance measured using an online map as 100 metres each way, swim for 30 minutes and then return to her car. Based on this, she therefore does not meet the criteria for a blue badge.
  9. Mrs X says the distances the Assessor has mentioned are untrue. Mrs X says she went swimming to get some non-load-bearing movement in the water and her blue badge allowed her to park directly at the beach. She says the actual distance is 22.5 metres to and from the car, 45 metres in total.
  10. Mrs X complained to the Council and requested a review. The review was conducted by a Team Leader who was satisfied that all assessment procedures had been followed correctly. The Team Leader said the Assessors have pre-planned routes which start from the assessment room and they take into account corridors and reception areas whereas Mrs X had only measured part of the route.
  11. The Council also said the fact that Mrs X goes swimming at the local beach does not directly affect the outcome of the assessment. The Council also said that the Assessors would have no reason to make a false claim about the number of times she needed to rest. The Council offered Mrs X a further assessment with a different Assessor.
  12. Mrs X attended the second assessment on 10 May 2018 and submitted evidence from medical professionals. The Council declined her application for a blue badge.
  13. The assessment report contained the following errors:
    • Mrs X’s pace was recorded incorrectly as more than 0.67 metres/second when it was 0.25 metres/second;
    • The list of medication was taken from the first assessment when Mrs X’s medication had changed at the time of the second assessment; and
    • In the Assessor’s clinical reasoning he stated the ‘DfT’s guidance clarifies that the applicant would have to demonstrate severe discomfort due to pain or breathlessness’.
  14. Mrs X was unhappy with the way the second assessment was conducted. She was unhappy the report contained incorrect information about her medication. Mrs X was unhappy the report said that she had walked from the disabled car parking space to the clinic room when her husband had dropped her off at the door of the assessment centre. She also says the Assessor glanced at the medical evidence and failed to properly consider the information.
  15. The second assessment report again made reference to Mrs X swimming with approximately 100 metres of walking each way. Mrs X says she did not mention swimming in the second assessment yet the clinical reasoning makes reference to it. Mrs X complained the second assessment was based heavily on the judgements and reasoning contained in the first assessment and the Council was wrong to refuse her application for a blue badge.

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Analysis

  1. The Council acknowledges the original Assessor did not speak with Mrs X when it called the landline to obtain more information about her application and mobility. The Assessor discussed Mrs X’s application and mobility with her husband instead. The Assessor made a decision to invite Mrs X for a mobility assessment after this telephone conversation with Mrs X’s husband. This is fault. The Assessor should have discussed Mrs X’s application directly with her.
  2. In both assessments Mrs X walked with a very slow pace, an irregular posture and used a walking aid in both assessments. When considering and applying paragraph 4.4 (b) of the DfT’s guidance, Mrs X could be deemed eligible for a blue badge as a result of the observations in both assessments.
  3. Mrs X says her comments about swimming in the first assessment were misinterpreted and she did not make any reference to swimming in the second assessment yet the assessment record referred to it. She complains this shows the second assessment was based heavily on the judgements made in the first assessment. I am unable to verify this due to the absence of any corroborating evidence. However, there is evidence the assessor copied and pasted at least one section of the first assessment into the second, Mrs X’s list of medication. Mrs X’s medication had changed since the first assessment therefore the medication in the second assessment was incorrect. This is fault.
  4. The second assessment incorrectly records Mrs X’s pace as more than 0.67 metres/second when her pace was 0.25 metres/second. The Council acknowledges this error and says it would not have impacted on the decision of the application. However, the DfT guidance says a pace of less than 0.67 seconds/metre is an extremely slow pace which is likely to make walking very difficult when considered in isolation. This is fault and on considering the DfT’s guidance, I consider it would have had some impact on the decision.
  5. In the assessor’s clinical reasoning in the second assessment and the Council’s decision letter to Mrs X, it states the DfT’s guidance clarifies that the applicant would have to demonstrate severe discomfort due to pain or breathlessness. However, the DfT’s guidance states the applicant may be deemed eligible if they can walk 30-80 metres without pain or breathlessness but demonstrate very considerable difficulty in waking through a combination of other factors such as an extremely slow pace and/or their manner of walking. I consider the Council’s misinterpretation of the DfT’s guidance in its assessment and decision letter to Mrs X as fault.

Agreed action

  1. To remedy the injustice to Mrs X, the Council has agreed that within four weeks of my final decision the Council will:
    • Apologise for failing to conduct the two assessments in accordance with DfT’s guidance;
    • Arrange a fresh mobility assessment to be conducted in accordance with the DfT’s guidance;
    • Pay Mrs X £100 for the time and trouble she has spent on pursuing this complaint.

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Final decision

  1. There is fault by the Council and it has agreed to remedy the injustice. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman

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