London Borough of Barnet (18 001 350)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Ms B complains that the Council de-activated her freedom pass and required her to attend a medical assessment. She also complains about the Council’s decision not to issue a replacement pass. On the evidence seen so far, the Ombudsman does not uphold Ms B’s complaint. There is no evidence that the Council deactivated the pass. It was entitled to require her to attend a medical assessment and properly applied the guidance on eligibility for a freedom pass when deciding Ms B was not eligible.

The complaint

  1. Ms B complains that the Council de-activated her Freedom Pass without warning despite it having two more years to run and required her to attend a medical assessment. She also complains about the Council’s decision not to issue her with a replacement pass.

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The Ombudsman’s role and powers

  1. 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)
  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 have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
  2. I have written to Ms B and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. The freedom pass is a concessionary travel scheme which provides free travel to residents of Greater London who are elderly or who have a disability. The scheme is funded by local authorities and coordinated by London Councils (a body which represents London’s 32 borough councils and the City of London).
  2. People with a freedom pass can travel for free on most public transport services in London.
  3. The Department for Transport (DfT) has issued the document “Guidance to local authorities on assessing the eligibility of disabled people in England for concessionary bus travel” (“the guidance”). This is to help local authorities meet their statutory responsibilities to provide free public transport to certain groups of people.
  4. Under the Transport Act 2000 it is for a local authority to decide whether someone is a ‘disabled person’ for the purposes of concessionary travel. In reaching this decision the Council must have regard to the guidance.
  5. The guidance states that the onus is on the applicant to prove their entitlement to a concessionary travel pass.
  6. Eligibility for a freedom pass may be considered automatic where a person is in receipt of any of the following state benefits which link eligibility to the ability to walk or communicate orally:
    • Higher Rate Mobility Component of Disability Living Allowance;
    • Personal Independence Payment (PIP) where the applicant has been awarded at least eight points against either the PIP “moving around” and/or “communicating verbally” activities;
    • War Pensioner’s Mobility Supplement.
  7. For other applicants, the Government recommends the Council arranges an independent health professional to undertake an assessment.
  8. There are seven categories of disabled people identified as eligible for concessionary travel in the Transport Act 2000. These are listed as people who:
      1. are blind or partially sighted;
      2. are profoundly or severely deaf;
      3. are without speech;
      4. have a disability, or have suffered an injury, which has left them with a substantial and long-term adverse effect on their ability to walk;
      5. do not have arms or have a long-term loss of the use of both arms;
      6. have a learning disability that is defined as 'a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning'.
  9. The guidance explains that, to qualify under category d, the person must have a long-term and substantial difficulty that means they cannot walk or which makes walking very difficult. Passes will be issued to people who:
    • can only walk with excessive labour and at an extremely slow pace or with excessive pain;
    • cannot take a single step (cannot walk);
    • are virtually unable to walk/ unable to walk very far without experiencing severe discomfort (pain or breathlessness) even when using an artificial aid.
  10. When assessing whether someone is virtually unable to walk, councils should consider:
    • the distance they can walk before experiencing severe discomfort;
    • the speed at which they can walk;
    • the length of time they can walk;
    • the manner in which they walk.
  11. The Guidance says:
    • Where there is any doubt about eligibility, local authorities should seek independent medical evidence;
    • Using an applicant’s GP to verify they meet the criteria is unsatisfactory. The Department recommends independent health professionals undertake assessments. It states occupational therapists (OTs) and physiotherapists are best placed to assess eligibility;
  12. The Guidance recommends that, where possible, local authorities run dedicated assessment centres to assess eligibility.

Key facts

  1. Ms B has had discs removed from her spine and a cage inserted. She had a disabled person’s freedom pass which she used regularly.
  2. In December 2013 Ms B moved from the London Borough of Haringey to the London Borough of Barnet.
  3. On 29 February 2016 contractors began processing the bulk renewal of all active freedom passes on behalf of London Councils.
  4. On 2 March 2016 the London Borough of Haringey de-activated Ms B’s freedom pass with the reason ‘gone away’. On 15 March 2016 London Councils issued Ms B with a new freedom pass which was valid until 31 March 2021. The Council says there are no notes on London Councils’ system to explain why a new pass was issued. It says this should not have happened.
  5. Ms B says her new pass was de-activated on 6 March 2018. The Council says London Councils has confirmed the pass was not de-activated and should have still been working. It says the pass may have stopped working if it was damaged as splits or tears can inhibit the functioning of the pass.
  6. Ms B contacted London Councils on 7 and 8 March 2018 and was advised to contact the London Borough of Barnet. She contacted the Council on 8 March 2018 and was advised she would need to complete a new application.
  7. By law freedom passes must be renewed every five years but disabled persons passes are only valid for as long as the pass holder meets the eligibility criteria. The Council says that there was no evidence of Ms B having completed the renewal process within the previous five years so it was legally required to confirm her continued eligibility for the concessionary travel scheme. It therefore asked Ms B to go through the renewal process and that she completed a review form.
  8. The Council contracts out the assessment process to Company X. The policy for assessing applications is set out by the DfT.
  9. The Council carried out a desk-based assessment for renewal of Ms B’s disabled freedom pass on 9 April 2018. The assessment recorded that she had had discs removed from her spine and a cage inserted and that she mobilises using two elbow crutches. It stated Ms B reported being able to walk a distance of 24 metres but had not indicated the amount of difficulty she experienced in using stairs or whether she used a wheelchair. It stated, “We need more information Please invite into a clinic”.
  10. Ms B was invited to attend an assessment which took place on 11 May 2018. The assessment was carried out by an OT who prepared a detailed report. The assessment confirmed Ms B was in receipt of PIP but not the mobility element. It recorded that Ms B used buses and trains and that she arrived at the clinic by taxi.
  11. The assessment referred to a hospital letter dated June 2017. It stated Ms B was not currently receiving physiotherapy as she was unable to get to her appointments since her freedom pass was cancelled.
  12. The OT reported Ms B walked 90 metres “at very slow pace taking frequent rests”. She walked to this distance in eight minutes 15 seconds. The OT stated she walked with one crutch and that if she used two crutches then possibly her mobility would be improved. He stated, “mild discomfort observed severe reported”. The OT also recorded no breathlessness. He referred to the fact that Ms B has simple disability equipment in her home as recommended by an OT (stairwells, bath board and grab rails).
  13. The OT concluded that Ms B was able to walk with some difficulty. This did not meet the definition of ‘virtually unable to walk’ as defined by the DfT and he therefore decided she was not eligible for a freedom pass.
  14. The Council wrote to Ms B on 22 May 2018 to advise her of the outcome. The letter explained she was not entitled to a freedom pass based on information provided at her mobility assessment and her ability to mobilise as observed by the OT. The letter explained that during her assessment she mobilised with one elbow crutch and walked a distance of 90 metres which is well in excess of the eligibility criteria. She walked at a very slow pace and the OT observed mild pain and discomfort and no breathlessness. The assessor concluded she had some difficulty travelling. The letter explained that, if Ms B considered the decision to be incorrect, she must provide new medical evidence.
  15. Ms B says that, because she no longer has a freedom pass, she cannot attend physiotherapy appointments, rehab gym classes or depression and anxiety counselling.
  16. Ms B did not appeal against the decision. However, she made a formal complaint to the Council. It did not uphold the complaint and referred Ms B to the Ombudsman.
  17. The Council recommends Ms B submits an appeal and her case will be reviewed independently by the parking client team. This team has not previously been involved with Ms B’s application or the complaint. Ms B would need to appeal in writing explaining how she meets the disabled person freedom pass eligibility criteria and provide new medical evidence to demonstrate this.

Analysis

De-activation of freedom pass

  1. There is no evidence to suggest the Council de-activated Ms B’s pass. London Councils has offered to investigate why the pass stopped working if Ms B can provide further details. It is open to Ms B to contact London councils directly if she wishes to pursue this. However, this does not alter the fact that, as Ms B had been using the pass for more than five years, the Council was required to carry out a re-assessment to confirm she was still eligible for the concessionary travel scheme.

Requirement to attend a medical assessment

  1. The decision that Ms B should attend an independent medical assessment was made by Company X following a desk-based assessment. Company X staff have medical training.
  2. Ms B says that, as Company X knew she would have difficulty attending the clinic, they should have carried out a home visit or provided a taxi.
  3. I find no grounds to criticise the Council in this regard. Although it was difficult for Ms B to attend the medical assessment, DfT guidance is that independent health professionals should undertake assessments and that councils should run dedicated assessment centres to assess eligibility. This is to ensure that a fair and equitable services provided to all applicants who are required to have an assessment. I am therefore satisfied Company X acted correctly by inviting Ms B to attend the assessment centre for the medical assessment. There is no requirement for the Council to provide transport.

The decision not to issue a replacement pass

  1. Ms B says the Council should have issued her with a replacement pass as she was initially awarded a freedom pass because of her spinal injury and this condition is permanent. She now has further health issues and cannot understand why she is no longer eligible for a pass.
  2. DfT guidance explains that it is important for judgements to be made based on physical mobility rather than the existence of medical conditions.
  3. The guidance says it is for the assessor to determine whether the person is ‘a disabled person’ for the purposes of concessionary travel. They must have regard to the guidance in reaching this decision.
  4. The assessment was carried out using the DfT criteria. The assessor must decide whether an applicant is ‘virtually unable to walk’ taking into account any discomfort which can include pain, breathlessness and fatigue. It is envisaged that passes will be issued to people who can only walk with excessive labour and at an extremely slow pace or with excessive pain.
  5. Company X says, although Ms B walked at an extremely slow pace, the assessor must ensure there is evidence to support this unusual slowness in walking and whether this is causing discomfort. It says the assessor will produce a holistic assessment report taking account of the applicant’s medical history and whether their disability has a substantial effect on their ability to carry out normal day-to-day activities.
  6. It is clear from the OT’s report that he took into account Ms B’s medical history including the fact that she was no longer receiving treatment from a specialist and her medical care was managed by her GP. She was in receipt of PIP but had not been awarded any points for mobility so her slowness in walking was not compatible with the PIP decision. The OT also took into account the fact that Ms B was using one elbow crutch at the assessment whereas she had reported using two elbow crutches which indicated an improvement of her mobility. In addition, the OT found Ms B did not demonstrate excessive labour, pain or breathlessness when walking and was only taking mild to moderate pain relief.
  7. The OT also took into account the fact that Ms B was able to use the stairs at home and had only been issued simple low level disability equipment to assist with normal day-to-day activities and Ms B advised she was able to lift her legs to get into and out of the bath.
  8. Taking all of this into account the assessor did not consider Ms B was ‘virtually unable to walk’. Although she walked very slowly, she did not demonstrate excessive pain, there was no pallor change or sweating.
  9. It is not the Ombudsman’s role to decide whether Ms B qualifies for a freedom pass but to review the Council’s actions to ensure it followed the correct procedure when it made its decision.
  10. I have considered the assessment and find no fault in the way was completed. I am satisfied the OT assessed Ms B in line with the guidance. He explained the reasons for his decision and there is no evidence to suggest he incorrectly interpreted the guidance. In the absence of administrative fault, there are no grounds to question the assessor’s decision. The Council was therefore entitled to decide Ms B did not meet the criteria for a freedom pass.

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Final decision

  1. I do not uphold Ms B’s complaint. The Council was entitled to require her to attend a medical assessment and properly applied the guidance on eligibility for a freedom pass when deciding she was not eligible.
  2. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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