Essex County Council (18 009 904)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 10 Jan 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not renewed his son’s blue badge. He says this means his son is less able to access services in the community and has affected his wellbeing. The Ombudsman does not find fault in how the Council considered this application for a blue badge.

The complaint

  1. The complainant, who I refer to as Mr B, complains the Council has not renewed his son’s (“Mr C”) blue badge. He says the Council should have exercised its discretion and allowed Mr C to keep his blue badge as it is so important to his care and wellbeing. Mr B says Mr C needs the blue badge to help him access services in the community. He says, since the Council’s decision not to renew the badge, Mr C has not been into the community as often. He says this has negatively affected his wellbeing and raised questions from the Court of Protection.

Back to top

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)

Back to top

How I considered this complaint

  1. I considered information provided by Mr B and discussed the complaint with him. I then made enquiries of the Council and asked for more information from Mr B.
  2. I considered all the information carefully and sent a copy of my draft decision to Mr B and the Council for their comments.

Back to top

What I found

  1. The Department for Transport’s (DfT) Blue Badge scheme is to help disabled people with severe mobility problems access goods and services by allowing them to park near their destination. The scheme provides parking concessions for Blue Badge holders. Councils are responsible for the day to day administration and enforcement of the scheme. This includes assessing whether people are eligible for the badge.
  2. The DfT has issued guidance to councils for providing Blue Badges to disabled people with severe mobility problems. The guidance says that councils must ensure they only issue badges to residents who satisfy one or more of the criteria set out in legislation. There are two types of eligibility criteria. One is where a person is eligible without further assessment. The other is where the person is eligible subject to further assessment.
  3. A person is eligible without further assessment if they receive:
    • the higher rate of the mobility component of Disability Living Allowance (“DLA”), or
    • eight points or more under the ‘moving around’ activity of the mobility component of Personal Independence Payment (“PIP”).
  4. A person is eligible subject to further assessment if they:
    • drive a vehicle regularly, have a severe disability in both arms and cannot operate, or have a great difficulty in using, all or some types of parking meter; or
    • have a permanent and substantial disability that causes inability to walk or considerable difficulty in walking.
  5. The guidance says an independent mobility assessor should decide whether someone is eligible for a blue badge, if they are not eligible without further assessment. The guidance sets out what assessors may wish to consider when assessing a person's mobility. This includes excessive pain, breathlessness, distance, pace and the applicant's manner of walking.
  6. Applicants who can walk more than 80 metres and do not display very considerable difficulty in walking through any other factors would not be viewed as eligible.

Background

  1. Mr C is an adult who has a learning disability, autism and epilepsy. He lacks capacity to make decisions about his care and lives in supported living, where he receives two to one care. Mr B and his wife have been appointed as deputies for Mr C by the Court of Protection, so can make decisions about his care.
  2. Mr C has a high level of needs and his behaviour can, at times, be challenging. Certain things can trigger Mr C to display aggressive or violent behaviour towards others. This makes it difficult for him to get out into the community to access services and activities that are important to his wellbeing.
  3. A car is a safe place for Mr C and he normally calms down once he is back inside the car. A key strategy of Mr C’s community risk assessment and positive behaviour support plan is for support workers to help him back into the car quickly if he becomes agitated or unwell. This reduces the risk of his behaviour escalating in a way that could lead to Mr C or others being harmed. If the car is parked far away, it reduces support workers’ ability to help him back into the car in these situations. Crossing a car park can be difficult for Mr C and pose an increased risk. It is therefore important he can park in disabled spaces, as they are closest to any services he accesses.
  4. Mr C has received the higher rate of the mobility component of DLA since he was five years old. This meant he was automatically eligible for a blue badge and for the past 10 years his condition has been managed by parking close to services so he can quickly get back to the car if needed.
  5. PIP is replacing DLA and Mr C has now moved to PIP. His PIP assessment awarded 12 points under the mobility component. However, none of these points are in the ‘Moving Around’ section.
  6. In mid-2018, Mr B applied to renew Mr C’s blue badge as it was due to expire in August that year. Mr B applied based on Mr C being automatically eligible, as he always had been and still received 12 points under the PIP mobility component. However, as outlined at Paragraph 8 above, to be eligible without further assessment at least eight points must be awarded under the ‘Moving Around’ section. The Council therefore found Mr C was not eligible without further assessment and would need to attend and independent mobility assessment.
  7. The mobility assessor found Mr C could walk without significant difficulty so was not eligible for a blue badge. Mr C appealed this decision and was invited to attend another mobility assessment. The second mobility assessment again found Mr C could walk without significant difficulty. The Council therefore did not renew Mr C’s blue badge.
  8. Mr B says the problem is not with Mr C’s ability to walk but the risk posed by not being able to park close to services. He says since Mr C lost his blue badge in August, he has not been able to get out and access services or activities anywhere near as much. He says this has had a negative effect on Mr C’s well-being and has led to the Court of Protection raising questions about why he is not getting out as often.

Findings

  1. This case is a strong example of why the government has said it will introduce further guidance about ‘hidden disabilities’ in 2019. The benefits to Mr C of having a blue badge are clear, as are the negative consequences of it being taken away after 10 years of it supporting him to access services and the community.
  2. Unfortunately, now the law does not provide for people with conditions like Mr C to have a blue badge. The most recent guidance on blue badges and the change from DLA to PIP means he is no longer eligible without further assessment on the mobility component as a whole. Instead, as he does not score any points under the ‘Moving Around’ section, he would only be eligible subject to a mobility assessment.
  3. I have read the guidance thoroughly and it is clear a person is only eligible without further assessment if they receive at least eight points under ‘Moving Around’. It is also clear about the factors a mobility assessor may consider, including:
    • Excessive Pain
    • Breathlessness
    • Distance
    • Speed
    • Length of time they can walk
    • The way they walk
    • Use of walking aids
    • Outdoor walking ability (meaning navigating objects such as kerbs and inclines)
    • Danger to the applicant’s life (meant for people with serious chest, lung or heart conditions)
  4. These criteria do not cover situations like Mr B’s, where he is able to walk but the risk of walking long distances means he is unable to access services without a car being nearby.
  5. I entirely understand, given the circumstances of this case, why Mr B says the Council should exercise discretion and allow Mr C to keep his blue badge. However, the guidance says that in no circumstances should a blue badge be issued if the person does not meet one of the eligibility criteria. This does not leave the Council any discretion to award Mr B a blue badge. I therefore cannot find the Council at fault for not exercising discretion.
  6. I hope the new guidance on hidden disabilities will assist Mr C when it comes in, and understand that will not be of comfort to him or his parents in the meantime. However, until it does come in, I cannot say what additional support it will offer and cannot find the Council at fault for not considering Mr C’s hidden disability.
  7. The Council has followed the correct processes in assessing this application. It conducted a mobility assessment, allowed Mr B’s appeal and held a further assessment. It also outlined clear reasons for not awarding a blue badge in its decision letter. I therefore cannot find fault in how the Council managed this application.

Back to top

Final decision

  1. The Council is not at fault in how it considered this application for a blue badge.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

;