Medway Council (18 010 119)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council did not deal with his application for a blue badge properly. The Council did not properly make a record of the walking assessment it carried out and did not give detailed reasons for rejecting his application. Mr B cannot be certain the Council assessed his application correctly. The Council has offered to reassess Mr B as well as provide more information in decision letters and this is an adequate remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complains the Council failed to deal with his application for a blue badge because:
    • It did not request and consider all information about his medical conditions.
    • The walking assessment it relied on was flawed because it didn’t record the pain he was in.
    • It did not provide enough detail when it told him the outcome of his application.
    • It didn’t give him a copy of his walking assessment report in enough time for him to appeal the decision.
    • It did not consider its responsibilities under the Equality Act.

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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)
  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

  1. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries.
  2. I have written to Mr B and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. The Disabled Persons Parking Badge Scheme (known as the “Blue Badge scheme”) was introduced in 1971. The Government later published The Disabled Persons Badges for Motor Vehicles (England) Regulations 2000 (“the Regulations”).
  2. The Department for Transport (DfT) has published non-statutory guidance for councils on the Blue Badge Scheme. This is called ‘The Blue Badge Scheme Local Authority Guidance England October 2014’ (“the Guidance”).
  3. The Blue Badge Scheme allows people with severe mobility problems and registered blind people to park close to their destination. Councils are responsible for the day to day administration and enforcement of the scheme. This includes assessing whether people are eligible for the blue badge.
  4. There are two ways of qualifying for a blue badge. People qualify if they receive certain benefits. This is known as automatic qualification. People also qualify through an assessed route if they have a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking.
  5. The Regulations say councils may refuse to issue a badge if an applicant fails to provide evidence of a substantial disability. If the application is refused, councils must give the applicant ‘particulars’ of the grounds of refusal. The Guidance also says the Council should set out clear reasons for why the applicant did not meet the criteria.
  6. The Guidance says, if an applicant is unable to walk 30 metres (33 yards) in total, they can be considered as having very considerable difficulty in walking. It also says, if an applicant cannot walk 40 metres (44 yards) in a minute, it is likely to make walking very difficult when considered in isolation.
  7. The Guidance strongly recommends councils establish an internal procedure to deal with appeals, which needs to be clear, straight forward and fair.
  8. The Council’s policy for blue badge applications is on its website. The policy says if someone wants to ask for a review of an unsuccessful application, they can subject to providing supporting evidence of their eligibility. It says they may be required to demonstrate their condition at a mobility assessment with a qualified Occupational Therapist (“OT”).

What happened

  1. Mr B suffers from Autism, Attention Deficit Hyperactivity Disorder (ADHD), Anxiety, Arthritis and Dyspraxia. He says this affects his mobility because he cannot walk for reasonable distances without pain. Mr B says his pain is worse at some times than others.
  2. Mr B applied for a blue badge in September 2017. The Council assessed his application and asked Mr B to attend an Independent Mobility Assessment (IMA).
  3. The Council completed the mobility assessment in October 2017. The assessor observed Mr B as he walked, including up and down slopes. The assessor completed a form and made notes about Mr B’s mobility.
  4. The Council advised Mr B that it had refused his application for a blue badge. It outlined the relevant part of the guidance but did not give detailed reasons.
  5. Mr B asked the Council to review his application. After completing a review, the Council again wrote to Mr B telling him it continued to refuse his blue badge application.
  6. Mr B complained to the Council, on the grounds that:
    • The guidance says feedback for unsuccessful applicant should include a detailed explanation of grounds for refusal.
    • He suffers from autism which meant he did not express the pain he experienced and he wasn’t asked about pain levels while walking.
    • He was assessed as having a slow or very slow walking pace because he was in pain due to his arthritis.
    • He still suffers pain when walking and has to take regular breaks.
  7. The Council responded to Mr B’s complaint at stage 1. The Council said the assessor felt Mr B should have carried on walking for longer. It said the assessor felt breaks in his walking were not due to pain as he only appeared to stop walking to respond to questions. The Council said that Mr B’s mobility would have needed to be considerably worse to qualify for a blue badge.
  8. Mr B asked the Council to reconsider his complaint at stage 2. The Council replied and said the assessor was trained to recognise hidden disabilities. It accepted that it hadn’t given Mr B a copy of his IMA before he made his appeal. The Council offered Mr B another mobility assessment.

Analysis

Information about Mr B’s medical conditions

  1. Mr B sent information to support his blue badge application, including a print out from his GP and a letter from his orthopaedic surgeon. The Council asked Mr B to bring along any other supporting documentation to his mobility assessment, including results of tests.
  2. Mr B says the hospital did not give him a copy of his MRI (Magnetic Resonance Imaging) scan results. The email from the Council inviting him to the mobility assessment gave two working days’ notice. It is unlikely that Mr B would have been able to get his MRI test results from his consultant in that short time. There is evidence the Council did consider the evidence Mr B provided.

The walking assessment

  1. The available documents show the assessor was aware of Mr B’s disabilities through his application form and the information recorded on the IMA form.
  2. The assessor noted that Mr B suffered pain while walking up to a level of 8/10. They calculated Mr B’s walking rate to be 0.45 metres per second. (The Guidance considers this to be a very low walking pace.) Supplementary notes made by the assessor say Mr B used a stick, had a slight right-hand side limp and stopped four times. The assessment form recorded that Mr B used a walking stick, stopped briefly four times and noted that he was not breathless. It also stated he was able to walk and converse but was easily distracted and had a right side limp throughout.
  3. The information supplied by Mr B on his application form stated he suffered moderate pain in his right knee, which the functional movement test confirmed and was supported by medical evidence.
  4. The assessors clinical reasoning notes for the blue badge decision refers to section 4 of the IMA. Section 4 of the IMA contains no clinical reasoning.
  5. No record was made of whether he was suffering any pain despite there being a specific section on the form for this information. The Council conceded in its stage 2 response to Mr B that the assessor had assumed that Mr B had stopped during the assessment because he was talking.
  6. No inconsistencies between the information Mr B provided and the walking ability demonstrated in the assessment were recorded. There were also no reasons recorded why the assessor recommended refusal.

The decision letter

  1. The letter advising Mr B that the Council rejected his application did not contain much information. The Council accepted in its stage 2 complaint response that its decision letters could be more detailed.
  2. Because of Mr B’s complaint the Council has improved the service it offers. The Council has provided the Ombudsman with an example of an improved decision letter that now refers to both the relevant sections of the guidance and the specific individual factors that were relevant to the decision the Council made. I consider this to be a significant improvement.

Giving Mr B a copy of the walking assessment report

  1. The Council were under no obligation to provide a copy of the IMA to Mr B under law or its policy. It is commendable that it did so, and it accepts that it would have been better for Mr B to see his IMA before he made his appeal.

The Council’s responsibilities under the Equalities Act

  1. I have found no evidence the Council did not consider its responsibilities under the Equalities Act. The assessor was aware of Mr B’s disabilities. The Council say that all its assessors are trained to recognise hidden disabilities.
  2. Evidence shows the assessor made an assumption why Mr B stopped walking during his mobility assessment rather than ask why. This is a failure in the process of assessment itself rather than specific failure to take account of his disability. The general way in which the assessor completed the form supports this view.

Is the Council at fault?

  1. The Council is at fault because the mobility assessment was flawed and the Council’s decision letter did not contain enough detail.

Has Mr B suffered any injustice?

  1. The injustice to Mr B has already been remedied because the Council has said it will complete a reassessment. Mr B can ask the Council to consider all the evidence he thinks relevant. The Council’s offer to reassess him and the changes it has already made to its decision letters are sufficient to remedy the injustice caused.

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Final decision

  1. I have found fault by the Council in the way in which it considered Mr B’s application for a blue badge. Any injustice has already been remedied by the Council’s offer to reassess his mobility and the changes it has made to decision letters, so no further remedy is required. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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