The Ombudsman's final decision:
Summary: There was fault in the Council’s decision to refuse Mr X’s application for a blue badge for his daughter Miss Y. To remedy the injustice the Council will give Miss Y a blue badge for one year.
- Mr X complains London Borough of Harrow (the Council) refused to renew his daughter’s (Miss Y’s) blue badge.
The Ombudsman’s role and powers
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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)
- 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)
How I considered this complaint
- I considered Mr X’s complaint to the Ombudsman and supporting documents. I also considered the documents described later in this statement. Both parties received a draft of this statement and I took comments into account.
What I found
- The Department for Transport’s Blue Badge Scheme Local Authority Guidance (England) 2014 is not statutory guidance, but the Council follows it. The Council also has a policy on blue badges, which incorporates that Guidance and gives more detail on interpretation. We set out relevant parts of the Guidance below.
- Some groups are automatically eligible for a blue badge including:
- those who receive the high rate mobility component of Disability Living Allowance DLA); and
- those who receive 8 points or more under the ‘moving around’ activity of the mobility component of Personal Independence Payment. (PIP)
‘… whilst desk-based assessments have a role as a filtering mechanism to identify applicants who are clearly eligible or clearly ineligible for a badge, they cannot be successfully used as the sole means of determining all applicants' eligibility for a badge.’
- The Guidance says when considering whether someone has very considerable difficulty in walking several factors may be relevant: excessive pain; breathlessness; distance walked; speed; use of walking aids; outdoor walking ability; and whether walking presents a danger to the applicant’s life or would be likely to lead to a serious deterioration in their health.
- The Guidance also says:
‘Whilst medical conditions such as asthma, Crohn's disease/incontinent conditions, autism, Myalgic Encephalomyelitis (M.E.) and other mental/cognitive/intellectual disabilities are not in themselves a qualification for a badge, people with these conditions may be eligible for a badge if they are unable to walk or have very considerable difficulty in walking. Eligibility is not determined by the presence or absence of any particular diagnosis or condition. Provided that an applicant has a permanent and substantial disability, a local authority's eligibility decision should be based on whether the applicant’s difficulty in walking meets the criterion in the regulations.’
- Appendix G of the Guidance identifies the ‘core principles’ for independent mobility assessments. They include ‘observing’ the applicant walking.
- The Department for Transport has carried out a consultation exercise with a view to making changes to clarify its Guidance. The forward to the consultation exercise, which has now ended, said ‘the current rules embrace all conditions, physical or otherwise, but it has become clear to us that the regulations and guidance are not clearly understood by local authorities. People with hidden disabilities may be finding it difficult to access badges, even though their condition causes them very significant difficulties undertaking a journey.’
- Mr X’s daughter, Miss Y, has learning disabilities. She had a blue badge for many years, having been eligible for this automatically as she received the higher rate mobility component of DLA.
- Miss Y now receives PIP rather than DLA. She is no longer automatically eligible for a blue badge as she does not have 8 points or more under the moving around activity of the mobility component of PIP.
- Mr X applied to renew Miss Y’s blue badge which was due to expire in July 2018. He did not answer questions on the on-line application form about how far Miss Y could walk before feeling severe discomfort. Nor did he answer questions about whether she had shortness of breath, balance problems or falls. He explained Miss Y saw a specialist consultant in learning disability and said she had a severe learning disability, emotional difficulty, anxiety and panic attacks and depression.
- With the application, Mr X enclosed a letter from the DWP about Miss Y’s PIP. The letter said she scored zero out of a possible 8 points for moving around. (This means the DWP considered Miss Y could stand and move more than 200 meters unaided.)
- The Council uses a company, to process blue badge applications on its behalf. The company completed a desktop screening tool for Miss Y in July 2018. The decision said ‘applied under mental health criteria and therefore doesn’t qualify for BB [blue badge]’
- The company wrote to Miss Y saying she was not eligible and set out her right of appeal. It asked Miss Y to provide written proof from a healthcare specialist that she had the mobility problems described on the application form.
- Mr X appealed saying Miss Y could not go out without supervision, could not communicate without someone helping her and had severe anxiety and panic attacks in public. The appeal form included a section for appellants to list professionals who could verify the information on the form. Mr X gave Miss Y’s GP and support worker’s details. He enclosed:
- a letter from Miss Y’s GP which said Miss Y had a learning disability and severe behavioural issues and was eligible for a blue badge;
- a letter from her psychiatrist which described her anxiety while travelling by car or public transport; and
- a report from Miss Y’s occupational therapist about her sensitivity to loud noises.
‘her PIP documents show she scored 0 for the moving around aspect which means she can stand and move over 200 metres aided or unaided
The Policy of Harrow and all other councils has been to consider this to be a mobility assessment and therefore not to offer one, in fact to consider this as clear evidence that she doesn’t meet the walking criteria, as they are interpreted at present. In fact we have often felt that to invite such an applicant for a mobility assessment is almost cruel, as she cannot be expected to meet the criteria and it is unfair to invite her and suggest she might qualify this way. As regards if her learning difficulty might mean she has walking disabilities, would this not be considered as part of the “moving around” assessment by the DWP? The DWP assessment that led to this PIPs score would surely have considered this.
- The company also told us it believed Miss Y was likely to be eligible for a badge under the proposed changes to the Guidance.
Was there fault?
- Since Miss Y stopped receiving high rate mobility DLA and did not have 8 points in the moving around sector for PIP, she was no longer automatically eligible for a blue badge. However, Miss Y may still have been eligible under the discretionary criteria if she had a permanent and substantial disability causing an inability to walk or very considerable difficulty walking.
- The Guidance allows councils to use desk-top screening, but advises an in-person walking assessment if an applicant’s eligibility is unclear. In this case, the screening was flawed because the assessor concluded Miss Y was ineligible because she had applied for a badge on mental health grounds. This was fault because the Guidance makes it clear that eligibility is not determined by the presence or absence of any particular diagnosis or condition. If an applicant has a permanent and substantial disability, the decision should be based on whether the applicant’s difficulty in walking meets the criteria in the Guidance.
- There was also fault in the appeal. The company decided Miss Y was not eligible by applying the PIP criteria for walking distance (she could stand and walk 200 meters unaided): this was the wrong test. The company should have used the test set out in the Guidance: whether Miss Y had very considerable difficulty walking. This generally requires an in-person walking assessment and the application of other factors aside from distance including pain, speed, use of aids, outdoor walking ability and consideration of whether walking presents a danger to life or serious risk to health.
Did the fault cause injustice?
- Miss Y’s case was not properly considered under the eligibility rules in the Guidance the Council has chosen to follow. This is a loss of a chance and is a form of injustice.
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the company, I have made recommendations to the Council.
- I asked the Council to review the case and consider exercising discretion to issue a blue badge. The Council has agreed to award Miss Y a badge for one year using its discretion. It should do so within one month of my final decision.
- Mr X will then need to reapply for a badge next year, when new guidance will hopefully be in force.
- There was fault in the Council’s decision to refuse Mr X’s application for a blue badge for his daughter Miss Y. To remedy the injustice the Council will award Miss Y a blue badge for one year. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman