Summary: Miss B complained the Council failed to properly assess her father for a blue badge. There was some fault in the process. The Council agreed to obtain some additional information and review its decision.

The complaint

1. The Council acted wrongly in refusing Mr C’s application for a blue badge and his subsequent appeal. As a result, Mr C and his wife are disadvantaged because Mr C is not able to shop, attend appointments and carry out other activities without either spending money on taxis or relying on family help.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Miss B and considered the information she provided. We asked the Council for information and I considered its records and its response to the complaint. I took account of relevant DfT guidance.

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What I found

5. The Disabled Persons’ Parking Scheme (Blue Badge) provides national parking concessions for Blue Badge holders.
6. The aim of the scheme is to help people with severe mobility problems to access goods and services. It allows Blue Badge holders to park close to where they need to go.
7. Local Authorities manage the scheme. They deal with applications, carry out eligibility assessments and issue Blue Badges.
8. There are two forms of eligibility. If an applicant is already in receipt of certain benefits or meet certain criteria, they may be automatically ‘eligible without further assessment’.
9. If an applicant does not meet the automatic qualification criteria, they may be eligible for a Blue Badge by means of an eligibility assessment provided they are over two years of age and they either;
• Drive a vehicle regularly, have a severe disability in both arms, and have considerable difficulty operating parking meters; or;
• Are unable to walk or have considerable difficulty walking because of a permanent and substantial disability.

Eligibility Assessments

10. Department for Transport (DfT) guidance states that decisions about eligibility are fairer and more objective if they are carried out by an independent mobility assessor. The guidance defines an independent mobility assessor as someone who holds a suitable professional qualification and is recognised as having the necessary expertise to perform assessments.
11. The guidance includes a list of factors Local Authorities should take into account when deciding eligibility. To assess whether the applicant has ‘very considerable difficulty in walking’ these include;
• Pain as observed and as reported by the applicant.
• Breathlessness reported by the applicant.
• Walking speed.
• The manner in which they walk.
• How the applicant would cope with walking outdoors or on uneven surfaces.
• Whether the effort of walking presents a danger to the applicant’s life or would seriously affect their health.
12. When considering the applicant’s pain and breathlessness, the guidance states “It does not matter whether excessive pain or breathlessness occurs at the time of walking, or later – what counts is that it is a direct result of their attempt to walk.”

What Happened

13. Miss B complains on behalf of her father, Mr C.
14. In April 2019 Mr C made an application for a Blue Badge. On his application form Mr C explained a medical problem with his legs. He stated he had severe pain when walking and he was at risk of falling. He noted he had fallen previously. He stated he took strong pain killers and used a walking stick. Mr C also stated adaptations were being made to his home.
15. Mr C sent a letter from his GP with his application. It stated Mr C had a long-term permanent disability specifically affecting his walking. The GP stated Mr C could not walk 50m without stopping because of pain.
16. Mr C attended an assessment at the council offices in June. His daughter, Miss B, went with him.
17. The assessment form shows the assessor noted the GP’s letter and Mr C’s fall in February 2018. They also noted the medical condition affecting Mr C’s legs and the pain this caused to his feet and left knee. It noted Mr C’s swollen ankles.
18. The assessor noted Mr C drove to do essential shopping and hospital appointments. The notes state “No longer uses public transport. Goes out shopping, to pick up wife’s medication and for appointments.”
19. The assessor observed Mr C walking 160 metres with several brief stops. The assessor scored him against various factors set out in the DfT guidance. The scores record that Mr C had mild or moderate difficulty. However, Mr C did not meet the threshold for a blue badge. A summary note stated “It is acknowledged that applicant experiences some restrictions to his mobility however he appears to lead a relatively active lifestyle. He travels by car to the supermarket and completes his shopping independently, sometimes taking his wife who suffers with a number of health conditions. He picks up her medications and he takes them both to appointments. He does not meet the eligibility criteria for a BB”.
20. Miss B was unhappy with the outcome of the assessment. She submitted an appeal on Mr C’s behalf. There were three main points made in the appeal:
• Miss B disagreed with the assessor’s conclusion that Mr C was capable of walking 50 metres without severe pain. They noted the GP’s letter with their application stated he could not do so. The GP had also confirmed Mr C had a permanent and substantial disability affecting his ability to walk.
• Miss B stated that after the walking he did in his assessment Mr C was unable to walk at all for almost a week as his feet were swollen due to the exertion.
• In addition, Miss B stated, during the assessment, they made clear Mr C was no longer physically able to use shops and other public buildings unless he was allowed to park close by. She explained the difficulties Mr C had encountered when trying to attend appointments and do essential shopping. She stated Mr C fell while using a bus and he could no longer use public transport. If he could not be sure he could park close to his destination, he had to rely on taxis, which he could not afford.
21. The Council agreed to conduct a second assessment which took place on 12 September 2019.
22. The assessment form again noted to Mr C’s medical condition and his fall. It stated Mr C does shopping and cooking but his family helped with housework. The assessor observed Mr C walk 100m as part of the assessment. The scores regarding the key factors in the DfT guidance were similar to those from the first assessment. The assessor again concluded that Mr C did not meet the criteria for a blue badge based on his ability to walk 100m.
23. On 13 September the Council wrote to explain the outcome. The letter stated the appeal had been unsuccessful because Mr C did not meet the blue badge criteria. The letter explained the criteria I have summarised in paragraphs 8 and 9 of this statement. It stated while Mr C did have difficulties that impacted his physical function, he did not meet the guidelines regarding substantial difficulty walking. It stated the degree of impairment should be at a level comparable to that required to the Higher Rate Mobility Component of Disability Living Allowance or its equivalent under Personal Independence Plans.
24. On 19 September Miss B asked the Council to clarify the outcome. She stated the Council’s letter did not give a clear reason for the decision. Miss B could not understand why the Council had asked Mr C to walk over 80 metres again after she had explained the impact that the previous assessment had on him. She noted that Mr C’s tendency was to be compliant, but his GP had informed the Council that walking caused him severe pain. She re-iterated her concern that Mr C could not independently visit shops, banks or his doctors surgery in his car unless he could park close by.
25. Miss B received no response to her email and was told by telephone on 17 October that Mr C’s application had not been successful because he had not met the criteria because; he did not have a permanent disability or a substantial difficulty walking.

Miss B’s complaint

26. Miss B complained on 1 November. She said that if Mr C walked more than 50 metres he was rendered practically unable to walk afterwards. She stated this had been explained in the appeal of the original decision so he shouldn’t have had to do the walk again. She also reiterated the GP’s view that Mr C did have a permanent disability. She asked for a response to the concerns she had raised. She felt Mr C met the criteria because he couldn’t access services unless he could park close to his destination and the assessor’s suggestion that he had an active lifestyle misconstrued what they had said. He could no longer do this.
27. In response, the Council said the assessor decided Mr C could walk over 50 metres, without excessive labour, at a steady pace. As such he did not meet the criteria. The Council stated information from GPs was taken into account but ultimately the eligibility decision was made by a mobility assessment. This was why Mr C was required to take another mobility assessment to decide his appeal. The Council stated it was not possible to appeal further but the complaint response could be reviewed.
28. Miss B felt the Council had missed the point of her complaint. While she acknowledged Mr C had walked at the mobility assessment, this has had a serious impact on his health afterwards. The adverse impact had been ignored in the assessment and as part of the complaint.
29. Miss B told us she had been unable to speak to a complaint handler directly which made it difficult to ensure her complaint was understood. She stated contact with the complaint handler was only possible by passing messages through the Council’s contact centre.
30. On 2 January the Council sent its final response on Miss B’s complaint. The Council noted Miss B’s concerns and re-iterated the Blue Badge Scheme criteria. It stated both assessors had taken account of Mr C’s medical condition and considered its impact on his mobility. The Council’s letter ran through the information captured on the assessment forms at the original assessment and the fresh assessment following the appeal.

Analysis

31. We cannot decide whether Mr C is eligible for a Blue Badge or give our view about the degree to which he meets the relevant criteria. Our role is to consider whether the Council followed the correct process when it reached its decisions.
32. I recognise that Mr C’s GP felt that Mr C would be eligible for a blue badge and that he stated he could not walk the required distance without severe pain. However, the DfT guidance promotes the use of independent mobility assessors rather than decisions being made by GPs. There is evidence that the assessor took account of the comments made by Mr C’s GP in both assessments, so I have not fault in this regard; the assessments were also carried out by appropriately qualified independent assessors.
33. DfT guidance notes that it is for each Local Authority to adopt their own assessment approach, so long as it complies with the legislation. The Council’s approach is similar to that followed by many Local Authorities, in that it conducts mobility assessments which focus on observing the applicant’s ability to walk and the impact this has upon them. Many of the key factors in the DfT guidance were taken into account by the Council. However, I found there was some fault in the way the decisions were reached.
34. DfT guidance makes it clear that it does not matter whether excessive pain or breathlessness occurs at the time of walking, or later – what counts is that it is a direct result of their attempt to walk.
35. In response to our enquiries on the complaint the Council told us pain levels were considered and recorded and both assessors considered that because Mr C could walk more than 80 metres and did not demonstrate very considerable difficulty in walking, there was no reason to think that he would be adversely impacted later. However, Miss B says she explained to the first assessor the impact that the assessment walk would have on Mr C. There is clear evidence that in her appeal request Miss B explained the impact that it had on Mr C after the first assessment. So, the Council was on notice that this was an issue before the second assessment took place. There is no evidence the Council took account of the adverse impact that walking would have on Mr C later, when it made its decision on Mr C’s blue badge application. This was fault.
36. Unfortunately, the Council’s complaint response did not address the point Miss B made about the impact that walking had on her father. Rather, it reiterated the process as a whole.

Agreed action

37. The Council agreed to carry out a review of the decision not to grant a blue badge to Mr C. Rather than conducting a fresh mobility assessment, the Council agreed to review the decision by;
1. Taking account of the comments Miss B made about the impact walking has on Mr C after he does it.
2. Speaking to Mr C to discuss his present situation, any changes to his general health and medical condition(s) that might have occurred over the last year and to discuss the after-effects of mobilising that Mr C is experiencing now. The call should be arranged in advance so that family members can be present to assist him if Mr C wishes.
3. Obtaining more information about the impact of walking on Mr C by cross checking records held by the Occupational Therapists who saw Mr C regarding the adaptations made to his property recently (and any other appropriate records held by the Council).

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Final decision

38. There was fault by the Council. The Council agreed to remedy the complaint, so I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman