Dudley Metropolitan Borough Council (18 001 399)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 07 Dec 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council did not properly consider his disabled son’s application for a blue badge. The Ombudsman has found no fault in the Council’s assessment of mobility and its decision to refuse a blue badge.

The complaint

  1. Mr X complained that the Council did not approve his application for a blue badge for his adult son, L. He stated the Council’s mobility assessment did not properly assess L’s walking ability or consider relevant information. Mr X says this has had a detrimental impact on L’s quality of life and well-being because he is unable to access places he would normally go.

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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 discussed the complaint with Mr X and considered the information he provided.
  2. I reviewed the documents the Council supplied for my investigation, including the papers from L’s blue badge application, independent mobility assessment and the Council’s appeal responses.
  3. I referred to relevant legislation and guidance.
  4. I sent a draft version of this decision to Mr X and the Council for comment. I took all comments received into consideration before reaching my final decision

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What I found

  1. The Government’s blue badge scheme helps disabled people with severe mobility problems to access goods and services by allowing them or a carer to park near their destination. The scheme provides parking concessions for blue badge holders. The legal criteria for qualifying for a blue badge are set out in the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000.
  2. Local authorities are responsible for administering and enforcing the scheme. This includes assessing whether people are eligible for the badge. The Department for Transport (“DfT”) issues guidance to councils for providing blue badges, the Blue Badge Scheme Local Authority Guidance (England) 2014 (“the Guidance”). This is not legally binding, but sets out what the government considers good practice, so most councils apply it to their schemes.
  3. According to the Regulations, some people are automatically eligible for a Blue badge, for example if they receive certain benefits or are registered blind. However, people may also be eligible if they fulfil other criteria, which are subject to assessment from councils. Most commonly, this is when the person:

“Has a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking” (Regulation 4 (2) (f))

  1. When deciding whether applicants meet this criterion, councils must use an independent mobility assessor, who is usually an occupational therapist. They conduct a face to face assessment with the applicant, which includes discussion of their medical conditions and observation of their mobility using different exercises. Having a certain medical condition does not in itself qualify an applicant for a badge; it is the effect of the condition or disability on the applicant’s ability to walk that is assessed.
  2. The Guidance identifies several factors that may be relevant for assessing whether an applicant has very considerable difficulty in walking. These include excessive pain, breathlessness, distance walked, speed, walking aids and outdoor walking ability.
  3. People who have learning difficulties or mental health problems may qualify for a blue badge but only if they meet the criterion in the Regulations. The Guidance has no specific recommendations for assessing how cognitive or behavioural factors affect walking. It states that:

“While …mental/cognitive/intellectual disabilities are not in themselves a qualification for a badge, people with these conditions may be eligible for a badge if they are unable to walk or have considerable difficulty in walking. Eligibility is not determined by the presence or absence of a particular diagnosis or condition. Provided that an applicant has a permanent and substantial disability, a local authority’s eligibility decision should be based on whether the applicant’s difficulty in walking meets the criterion in the regulations. Each application should be considered on its merits – not on a “one size fits all” basis” (Guidance, Chap 4.4).

  1. The Council’s policy is to apply the DfT Guidance.
  2. There has been widespread criticism of the current guidance as a strict interpretation can lead to applications by people with “hidden disabilities” such as autism being refused by councils. The Government has announced its intention to extend the criteria to address this and new secondary legislation is due to come into force in 2019.

The facts

  1. L is 30 years old and has a severe learning disability, autism and epilepsy. Up until December 2017 he qualified for a blue badge automatically because he was in receipt of higher rate Disability Living Allowance. As part of nationwide welfare reform, this was replaced by a Personal Independence Payment (PIP). His scoring under this new benefit meant he was no longer automatically entitled to a badge.
  2. Mr X says L still needs a blue badge. He says L can walk some considerable distance but he would always have to be supervised. His autism means his behaviour can be unpredictable. This can cause a risk to the safety of L and those around him when he is in busy places like car parks. Mr X says he needs to park as near to the place he is visiting as possible to reduce the risk of L running off. He also need to park away from other cars because he can open the car door quickly and so cause damage to a neighbouring car.
  3. In December 2017, Mr X submitted an application form for a blue badge on behalf of L. Mr X says the Council’s receptionist was reluctant to provide a form and Mr X got the impression she did so because there was no point in him applying because the answer would be no.
  4. With the application, Mr X included a letter from L’s Consultant Psychiatrist to L’s GP. This letter confirmed L’s diagnosis, the medication he took, his lack of mental capacity to consent to medical treatment and referred to a seizure in February 2017. This letter was not written for the purpose of supporting his application for a blue badge.

The independent mobility assessment.

  1. Upon receipt of the application form, the Council carried out an initial screening and L was invited to attend a mobility assessment in January 2018.
  2. As part of the assessment, the assessor, who was a qualified occupational therapist (“OT”) accompanied L during an 80 metre indoor and outdoor assessment route. L scored one point out of a possible 24 (12 being the score at which a badge would be awarded). His application was therefore refused.
  3. The assessor’s notes record the issues, consideration of the medical evidence and the reasons why Mr X said L should qualify for a badge.

The first appeal

  1. Mr X appealed this decision. Mr X said the assessment was flawed for the following reasons:
  • The assessment route and calm environment did not properly reflect the reality that would be faced by L in a busy, everyday setting.
  • The assessment did not take into account his need to park as closely as possible to where he is visiting.
  • It did not take into account his epilepsy and the need for a carer to get him back to the car as quickly as possible in the event of a seizure.
  • He questioned why L had not been awarded any points for pain as L has no speech so he cannot say whether he is in pain or not.
  • Mr X disputed the assessor’s view that L walked at “a brisk pace”. Mr X says he does not maintain a regular pace and stops unexpectedly.
  • The Council’s approach was discriminatory towards people with autism and did not comply with the Government’s intentions in respect of “hidden disabilities”.
  1. Mr X’s appeal included a supporting letter from L’s epilepsy nurse and L’s GP. Both were strongly in support of L needing a blue badge and confirmed Mr X’s view that L’s unpredictable and erratic behaviour can cause a risk of harm to L and others.
  2. The appeal was rejected by the Council because there was no evidence that L had, “considerable difficulty walking within the DfT guidelines”.
  3. The Council maintained its view that the DfT criteria had been correctly applied. It said that as L could walk without very considerable difficulty he was not entitled to a badge.

The second appeal

  1. Mr X appealed again.
  2. A team leader considered the appeal and confirmed the view that L did not qualify by reference to the DFT criteria. The Council accepted that once the new DfT guidance was introduced, L would qualify but they had to follow the existing rules and under these he did not qualify.
  3. The Council said it was satisfied the assessor was a suitable qualified person to undertake the assessment.

What the Council says

  1. As part of my investigation, I asked the Council to explain its decision making. In response, the Council made the following points:
  • It carried out an independent mobility assessment in accordance with the Guidance. Each aspect of mobility (pain, breathlessness, speed, distance, use of walking aids and manner of walking) was considered. Mr X’s concerns about L’s difficulties were both recorded and considered.
  • The walking assessment took place outside and the route is designed to be both realistic and varied. It would not be appropriate to carry out the assessment in a busy car park for health and safety reasons.
  • The evidence provided at appeal was considered but again, by reference to the DfT criteria, did not change its decision on eligibility.
  • Even if L had demonstrated challenging behaviours, it is unlikely a badge would have been issued, as it still would not meet the mobility criteria.
  • The fact L requires supervision at all times is not relevant to mobility.
  • It has demonstrated it exercised its discretion by inviting L for a mobility assessment and considering all of the available evidence including the supporting letters.

Analysis

  1. Mr X complains about the assessment process, the decision itself and the Council’s failure to comply with a change in government policy regarding so called “hidden disabilities” such as autism.
  2. The Ombudsman cannot and does not say who qualifies for a blue badge. This is solely the role of the Council. The Ombudsman’s role is to consider if there is any fault in the way the Council considered an application. If there is fault that affected the decision the Ombudsman can ask the Council to reassess. If there is no fault the Ombudsman cannot recommend a remedy.
  3. Although L was previously awarded a blue badge that is not in itself qualification for a renewal. Councils are required to assess applicants in line with the Guidance using independent assessors. The Guidance explains applicants should be assessed against the criterion of whether they cannot walk, or have very considerable difficulty in walking regardless of their particular condition and each application should be considered on its merits.

The assessment

  1. The assessment was carried out in line with the government guidance by a qualified OT. L was able to walk over 80 metres. The assessor took all the relevant factors into account and made a professional judgement that L did not qualify for a blue badge.
  2. I carefully considered the assessor’s notes. These show that she considered the issued raised by Mr X and she scored L by reference to the criteria contained in the Guidance. This is what she was obliged to do. The Council has explained how and why the assessment was carried out in the way it was. It used its usual assessment route that allowed the assessor to form a professional view on L’s ability to walk.
  3. I do not consider I can find fault by the Council here. Blue badge assessments are designed to determine a person's mobility. The assessor took account of all relevant factors during L’s assessment, including walking pace, distance walked, assessed pain or discomfort, any apparent difficulty walking, and any breathlessness. The OT took the view that she could not conclude L demonstrated the level of mobility impairment need under national guidance to warrant the issue of a blue badge.
  4. The Council reviewed the assessor’s decision twice, together with additional supporting evidence, but decided that L did not meet the criteria for a blue badge. That is a decision it was entitled to take.

The decision

  1. Mr X says the decision was prejudged from the outset. I have found no evidence of this. While Mr X says the receptionist was reluctant to give him a form it is not possible for me to reach a view on this as it would be one person’s version of events as of another. For the same reason, I am unable to consider Mr X’s assertion that the assessor has already made up her mind and the assessment was just a necessary formality.
  2. The Council acted appropriately and carried out an independent mobility assessment. It did so because Mr X had raised the concerns he had over L’s safety and his epilepsy. This is evidence the decision was not pre-determined.
  3. Mr X says the Council did not consider the supporting evidence he provided from the consultant psychiatrist, epilepsy nurse and L’s GP. The Council says it did. It said the consultant psychiatrist’s letter did not refer to mobility or the blue badge issue and said there has been no recent seizures. I agree, this letter does not support the application because it was not written for that purpose.
  4. In contrast, I found the letters from both the epilepsy nurse the GP’s to be very persuasive as to why a blue badge would be beneficial to L. However, while they are evidentially useful, they were not the decision makers, that is the role of the Council.
  5. It is the role of the he Council to refer to the criteria and in doing so reached the conclusion that L’s severe learning disability, autism and associated anxiety and impulsive behaviour, “do not constitute considerable difficulty mobilising”. For similar reasons, the Council did not change its position after considering the L’s epilepsy and need to park further away from other vehicles.
  6. Mr X says the Council failed to use its discretion by taking an overly restrictive interpretation of the Guidance when it said it was unable to deviate from it.
  7. The introduction to the Guidance states, “It is the responsibility of each local authority to ensure that badges are only issues to persons who satisfy one or more of the eligibility criteria set out in the legislation”.
  8. The Guidance sets out several factors that may be relevant in deciding whether an applicant meets the criteria for a badge. These include excessive pain, breathlessness, distance and speed when walking. It says, “Each application should be considered on its merits – not a “one size fits all” basis”. I am satisfied this is what the Council did here because it considered L’s individual circumstances. But it had to consider these by reference to the mobility criteria. The guidance is clear on this point. It was entitled refuse the application because L did not meet the criteria.

Failure to consider future guidance

  1. Mr X also says the decision is flawed because the Council has relied on DfT guidance that is due to be change in the near future. I disagree. The Council must implement the law and guidance as it currently stands. I must consider whether the Council did so properly.
  2. It has clearly been recognised by the Government that the current guidance is overly restrictive and had therefore decided to widen its scope. The Ombudsman welcomes this change. However, until the law and guidance are changed I cannot criticise the Council for the approach it has taken in this case.

Conclusion

  1. There is no evidence the assessor’s decision involved fault in the process she followed, how she applied the relevant guidance and how the Council considered Mr X’s appeals. The Council's decision to refuse L a badge was one of professional judgement, and the Ombudsman has no grounds to go behind it.

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Final decision

  1. There was no fault in the way the Council assessed L’s application for a blue badge.

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Parts of the complaint that I did not investigate

  1. Mr X also raised concerns about the OT being unable to retrieve CCTV footage that he says shows L demonstrated challenging behaviours immediately after the walking assessment. I have not investigated this because it would not be possible to ascertain what actually happened here.

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Investigator's decision on behalf of the Ombudsman

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