Summary: The Ombudsman found no fault by the Council on the complaint Ms S sent on behalf of her daughter about the way it dealt with her application and appeal about a Blue Badge. It assessed her application and appeal according to government guidance in place at the time, considered her evidence, and the results of her mobility assessment.

The complaint

1. Ms S complains on behalf of her daughter, Miss T, about the Council’s failure to properly consider:
1. her application for an on-street parking concession under the Blue Badge scheme; and
2. her appeal against its decision to refuse it.
2. As a result, she will struggle with accessibility if she is unable to park near to shops.

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The Ombudsman’s role and powers

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)
4. 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)

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Blue Badge Scheme Local Authority Guidance

5. The non-statutory guidance in force at the time of this application was published in October 2014. It explains how the Blue Badge (Disabled Persons’ Parking) Scheme was introduced under section 21 of the Chronically Sick and Disabled Persons Act 1970.
6. There are 2 types of eligibility criteria for a Blue Badge:

• Type 1: this is for those who are eligible without further assessment because they meet certain criteria; and
• Type 2: this is for those who are eligible ‘subject to further assessment’. This includes those who have a ‘permanent and substantial disability that causes inability to walk of very considerable difficulty in walking’. Eligibility on this ground is confirmed by an independent mobility assessor.

7. Medical conditions, such as asthma and autism for example, along with other mental/cognitive/intellectual disabilities are not in themselves a qualification for a badge. An applicant may be eligible if they are unable to walk or have very considerable difficulty walking. The final decision about whether an applicant meets the criterion is for the Council.
8. When looking at whether the applicant has very considerable difficulty in walking, factors showing they are experiencing severe difficulty includes:

• Excessive pain reported by the applicant when walking or because of walking. This involves cross-referencing reported experiences of pain with information provided about their disabilities, details of medication, and coping strategies;
• Any breathlessness reported by the applicant when walking or because of walking. This may need cross-referencing to any medical conditions known to cause it and observations of the applicant’s respiratory rate during assessment;
• Looking at the distance an applicant can walk without excessive pain or breathlessness. An applicant who cannot walk 30 metres is considered to have very considerable difficulty in walking. An applicant may be eligible if able to walk 30-80 metres without pain or breathlessness but show a very considerable difficulty in walking through other factors such as a slow pace/manner of walking. Those who can walk more than 80 metres and show no demonstrable difficulty in walking through any other factors are not eligible;
• The speed an applicant walks is taken into account. Speeds of less than 40 metres/minute is considered ‘very slow’. These speeds are likely to make walking very difficult when considered in isolation; and
• The length of time an applicant can walk and the manner in doing so is also taken into account.

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How I considered this complaint

9. I considered all the information Ms S sent on behalf of her daughter, Miss T, the notes of the telephone conversation I had with Ms S, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Ms S and the Council. I considered their responses.

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What I found

10. Ms S applied for a Blue Badge for her daughter, Miss T who is autistic. Having a Blue Badge helps you park closer to shops, for example, if you are disabled and meet certain criteria.
11. X Ltd considered her application on behalf of the Council. This involved carrying out an assessment of Miss T by an occupational therapist (the assessor). Ms S was present. In August 2018, X Ltd awarded her 7 points which meant she did not meet the threshold of 10 points to qualify for a Blue Badge. The assessor noted Ms S reported no pain when walking 106 metres and nor did she receive medication for pain.
12. Ms S appealed this decision explaining her daughter rarely speaks and when she does, she does not complain infront of strangers as she views this as rude. Nor did she accept her daughter walked up the stairs in the manner recorded using alternative feet. This is because Miss T cannot walk upstairs that way. She moves one foot on to the step and then the other before repeating the process. She also explained her daughter cannot go out on her own. If she hears a noise from a bird or dog, for example, she will run from it which can be dangerous. She also has calluses on her feet.
13. Ms S also argued under the new criteria the government proposed in its revised Blue Badge guidance, her daughter would automatically get 12 points as she cannot plan and follow journeys. In addition, she sent medical evidence about autism, joint problems, and how prolonged walking causes problems with her feet. Miss T’s Child in Need worker wrote in support saying she has learning difficulties, a heart condition, and mobility problems. She feels pain in her foot and heel because she lacks stability which puts abnormal loads on them. She also has a phobia of birds and dogs.
14. Ms S also sent a letter from the Department of Works and Pensions about Miss T’s Personal Independence Payment award. This gave her points for lacking the ability to follow the route of a familiar journey without help.
15. X Ltd refused her appeal. In its decision letter, it explained while the government’s proposed revised guidance will contain updated criteria to take account of ‘hidden disabilities’, this was not yet published. Hidden, or non-physical, disabilities would include depression and anxiety for example. When it decided the application and appeal, the government had yet to set a publication date for the new guidance. This meant it could not take it into account.
16. Its decision letter went on to explain under the current guidance, to qualify for a Blue badge, an applicant needed to show:

• A permanent disability causing them to be, ‘unable to walk or have very considerable difficulty in walking’; and
• The ability to walk is affected to the extent they would be unable to access goods and services unless allowed to park close to the shops for example.

17. X Ltd explained it assesses the pain a person suffers when walking. At the assessment, Miss T did not say she was in pain. She walked 106 metres without resting. The total number of points awarded on review was amended to 8. Again, this was below the 10 needed to qualify for a Blue Badge.
18. In response to my enquiries, X Ltd explained all assessments receive a maximum of 15 points. Scores of more than 10 qualify for a Blue Badge. It works to the guidance issued by the government

Analysis

19. I found no fault on this complaint. In reaching this conclusion, I have taken account of the following:
1. While Ms S says her daughter does not express pain to strangers, there is no evidence this reluctance was raised either during the assessment or in any of the medical information provided;
2. Her GP’s letter said she struggled with mobility, joint problems, and noted prolonged walking caused her a lot of pain. It did not say what ‘prolonged’ included in terms of distance/time for example. Nor did it say she was on any prescribed medication for it. The record showing her past medical history does not refer to pain when walking or any medication for it;
3. X Ltd assessed her ability to walk in July when the assessor observed her walking more than 100 metres without resting or any signs of breathlessness. She walked 106 metres in 162 seconds which gave a walking speed of about 39.2 metres/second. The assessor recorded observing no pain and nor did she report pain. Miss T walked at a very slow pace. I accept that under the guidance, Miss T’s walking speed was very slow. Speed is not considered in isolation and the assessor was correct to consider all the other evidence as well including lack of breathlessness, pain, and the evidence Ms S provided;
4. While the calluses reported by Ms S are painful, they are not serious, and people can take action to reduce their impact;
5. The assessment record states she used alternate feet going up steps but led with the same foot on each step coming down. While Ms S’s account of how her daughter went up the stairs differed from the assessor, the evidence shows the assessor had noticed a difference in the way Miss T went up and down stairs. There is no independent evidence to support a finding of fault on this complaint;
6. The appeal decision shows X Ltd considered whether it should look at the criteria in the proposed new guidance and why it decided it could give it no weight when determining this application and appeal. I cannot criticize X Ltd for failing to take this into account as, while the government had proposed it, it had yet to publish it. The government only published the new guidance on 15 June 2019. It comes into force on 30 August; and
7. I am satisfied on the evidence, therefore, that the Council properly considered both her application for a Blue Badge and her appeal against its decision to refuse it.

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Final decision

20. The Ombudsman found no fault on the complaint made by Ms S on behalf of her daughter, Miss T.

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Investigator's decision on behalf of the Ombudsman