London Borough of Harrow (18 007 508)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 07 Nov 2018

The Ombudsman's final decision:

Summary: There was fault in the way the Council considered this application for a Blue Badge. The complainant also qualified for a Disabled Freedom Pass, but was not awarded one. The Council has now agreed to award him a Freedom Pass, and also offer him a fresh mobility assessment for his Blue Badge application.

The complaint

  1. The complaint, to whom I will refer as Mr W, complains that the Council has refused to issue him a Blue Badge and / or Disabled Freedom Pass. He says that he needs these because of how his medical condition affects him.

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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. 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)

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How I considered this complaint

  1. I reviewed the initial screening of Mr W’s application, the record of his subsequent mobility assessment, and the consideration of his appeal. I also reviewed the medical evidence he submitted in support of his appeal.
  2. I also sent a draft copy of this decision to both parties for their comments.

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What I found

  1. Blue Badges are issued by local authorities to people with disabilities, who may otherwise find it difficult or impossible to access goods and services. They entitle the holder to several parking concessions. Disabled Freedom Passes enable the holder to travel for free on public transport at certain times.
  2. When a person applies for a Blue Badge or Freedom Pass, the authority will assess their eligibility against certain criteria.
  3. There are some categories of disability which automatically entitle the person to a badge or pass. Authorities also have discretion to issue them to people outside of these categories. They may do so based on the information in the application form, or they may refer the applicant for a mobility assessment by an Occupational Therapist (OT). The OT will observe the applicant’s mobility in a number of different situations, and determine whether their mobility is sufficiently impaired to qualify them for a badge and / or pass.
  4. Mr W suffers from Multiple Sclerosis (MS). He says this affects him in a number of ways. This includes a risk of falls, and memory problems which can cause him to forget to pay for parking. He previously held a Blue Badge and Freedom Pass when he lived in a different authority area.
  5. Mr W applied for a Blue Badge and Freedom Pass on 28 October 2017. The Council conducted an initial screening of the application on 12 December. It decided to refer him for a mobility assessment.
  6. Mr W attended the assessment on 11 January 2018. The OT assessed his mobility against several different criteria, awarding him a point score for each. He needed 24 points to qualify for a Blue Badge, and 18 to qualify for a Freedom Pass, but the OT awarded him 16 points.
  7. Mr W appealed this decision on 19 February. The Council spoke to Mr W’s brother on his behalf on 1 March, to gain further information. But it decided to maintain its original rejection of his application.
  8. Mr W made a complaint to the Ombudsman on 13 August.

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Guidance

  1. This government guidance document is not statutory, so councils do not have to follow it. However, it provides examples of good practice which councils may choose to consider and apply when assessing Blue Badge applications.
  2. Section 4.4 outlines suggested assessment procedures. It outlines several factors which may be taken into consideration, including:

Distance

  • 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).

Speed

  • 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.
  • If an applicant can walk 40 metres (44 yards) in less than a minute (a pace of 0.67 metres/second or more), including any stops to rest, then the speed at which they walk is not likely to make walking very difficult when considered in isolation.

Manner

  • The applicant's posture, rhythm, coordination, balance and stride should be considered in terms of the degree of effect they have on their ability to walk.

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Analysis

  1. As described at paragraph 2 and 3, the Ombudsman’s role is to review authorities’ adherence to procedure when making decisions. It is not, therefore, for the Ombudsman to decide whether Mr W qualifies for a Blue Badge or Freedom Pass, but to ensure that the Council has followed the correct procedure when it made its decision.
  2. However, in this case, I have several points of concern about the Council’s decision.
  3. First, Mr W made clear that he was applying for both a Blue Badge and a Freedom Pass.
  4. Both the initial screening and the mobility assessment work on a points basis. The initial screening form says that, for a Blue Badge, an applicant with 0-16 points will be rejected; an applicant with 17-19 points will be referred for a mobility assessment; and an applicant with 20 points or more will be approved.
  5. For a Freedom pass, the thresholds are lower. An applicant with 0-11 points will be rejected, 12-14 points will be referred, and 15 points or more will be approved.
  6. The initial screening of Mr W’s application awarded him 18 points. It was therefore correct for him to be referred for a mobility assessment for his Blue Badge application.
  7. However, this score qualified Mr W for a Freedom Pass without further assessment. There is nothing in the screening document to explain why he was not awarded one at this stage. This is fault.
  8. The Government’s guidance on transport concessions is not statutory, and so authorities have discretion to decide their own criteria for assessing a person’s eligibility. However, once decided, the Ombudsman expects authorities to apply their criteria consistently, and would uphold a complaint where this had not happened.
  9. In this case, I do not accept there is any ambiguity in the initial screening. Mr W needed 15 points to be eligible for a Freedom Pass. He scored 18. He should have been awarded a Freedom Pass, and it was an injustice that he was not.
  10. Separately, I am also concerned that the appeal decision paperwork does not appear to consider Mr W’s eligibility for a Freedom Pass. While the assessor has written that they have read letters in support Mr W’s application for a Freedom Pass, their summary does not explain why they this has not led them to overturn the original decision. The summary simply reconfirms that Mr W is not eligible for a Blue Badge.
  11. This is again fault. The implications of this are less clear. But it is possible that the assessor would have noticed the error in the initial screening had they given proper consideration to the Freedom Pass application.
  12. Second, part of the standard OT assessment consists of a timed walk. The OT should then calculate the applicant’s walking speed, place them into one of a set of categories, and award a number of points based on the category.
  13. In this case, the OT has written that Mr W walked for 130 metres. However, where she should have written the time it took him to do this, she has entered the words “didn’t click”. This, I assume, refers to a stopwatch.
  14. Despite this, the OT placed Mr W in the 4-point speed category. This for ‘very slow’ walkers, of around 40m per minute. She has then crossed out the word ‘very’.
  15. I am confused by the OT’s approach. She has placed Mr W in a speed category, without calculating what his speed was. She has then crossed out a word to indicate that Mr W’s speed was ‘slow’, rather than ‘very slow’. This is despite there being a separate category for ‘slow’ walkers.
  16. I again consider this to be fault. Walking speed is a key consideration in the mobility assessment. But the OT’s measurement here appears to be an estimate, not a calculation.
  17. It is not clear to what degree this has caused Mr W an injustice. His total score was 16 points. The maximum score for walking speed is 5 points, and so even if he should have been put in the slowest category, his total would still have only been 17. The qualifying score for a Blue Badge, at the assessment, is 24 points, and so he was still some way short of this threshold.
  18. However, the guidance says that a person “may be considered eligible if they … demonstrate very considerable difficulty in walking”. It then goes on to say that a pace of less than 40 metres per minute, or 0.67 metres per second, “is an extremely slow pace which is likely to make walking very difficult when considered in isolation.”
  19. It is possible, therefore, that Mr W’s walking speed alone is sufficient to qualify him for a Blue Badge under the guidance. The fault in the assessment is significant enough to make the outcome unsafe.

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Agreed action

  1. The Council has now agreed to offer Mr W a Freedom Pass. It has also agreed to offer him a fresh mobility assessment for his Blue Badge application within one month of the date of my final decision. This should include a proper timed walk. It should then offer Mr W a fresh appeal right if he is considered ineligible.
  2. The Council should update the Ombudsman once Mr W’s new mobility assessment has been completed.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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