Summary: Mrs B complains that the Council has not considered her blue badge application and appeals properly. The Ombudsman considers that there was fault in the process which calls into question the robustness of the Council’s decision. The Council has agreed to the Ombudsman’s recommendation that it undertake a fresh Independent Mobility Assessment.

The complaint

1. Mrs B complains that there were errors in the way the Council considered her application to renew her Blue Badge and that the Council also failed to take proper account of the variable nature of her condition when refusing her application and subsequent appeals.

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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)

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How I considered this complaint

3. I have considered Mrs B’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have taken into consideration The Blue Badge Scheme Local Authority Guidance (England) 2014 and updated 2019 guidance published by the Department for Transport. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Blue Badges

4. The Blue Badge scheme was introduced by The Chronically Sick and Disabled Persons Act 1970.
5. Some people are automatically entitled to a blue badge without further assessment if they are more than two years old and are within certain categories. These include being in receipt of one of several disability-related benefits or being registered blind.
6. Other people may be eligible for a blue badge subject to further assessment. Under this criterion, an applicant must be more than two years old and fall within one or more of the following descriptions:
• drives a vehicle regularly, has a severe disability in both arms and is unable to operate, or has considerable difficulty in operating, all or some types of parking meter; or
• has a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking.
7. In 2014, the Department for Transport issued guidance to councils for providing Blue Badges to disabled people with severe mobility problems. The guidance introduced a structured functional mobility assessment. The guidance is non-statutory, meaning that councils are not legally obliged to adopt it. In practice, however, most councils do follow it.
8. The guidance says that an independent mobility assessor should undertake a face-to-face assessment of the applicant’s mobility. The person completing the assessment should have a professional qualification giving them expertise in assessing walking ability. Councils typically employ Occupational Therapists and Physiotherapists to undertake the assessments. The assessor must be independent of the applicant and their treatment and care.
9. The guidance says that applicants who can walk more than 80 metres and do not demonstrate very considerable difficulty in walking through any other factors would not be deemed as eligible. Having a certain medical condition does not in itself qualify an applicant for a badge. Rather it is the effect of the condition or disability on the applicant’s ability to walk that is assessed.
10. The guidance sets out several factors that are relevant in deciding whether an applicant meets the criteria for a badge:
• excessive pain;
• breathlessness;
• distance; and
• speed.
11. There are specific considerations under each of these categories.
12. The guidance has recently been updated to take into consideration people with “hidden disabilities” such as autism, though the underlying legislation will come into force on 30 August 2019

What happened

13. As a result of a previous neurological condition, Mrs B has weakness on her left side, curling of her toes and a left foot drop which affect her walking. She is prone to unsteadiness, poor balance, muscle spasm and falls, which are unpredictable. Mrs B manages her condition with an Ankle Foot Orthosis (splint),
14. Mrs B had a blue badge for a period of six years until early 2018 (most recently awarded in 2015), when she reapplied. As she did not meet the criteria for awarding a badge without further assessment, the Council asked Mrs B to have an Independent Mobility Assessment in February 2018.
15. The assessment involved an assessment by an Occupational Therapist (OT) of Mrs B’s walking ability, balance and use of stairs. It took into account a 2015 GP letter and October 2017 letter from her consultant neurologist.
16. The assessment explained that she had walked 136 metres at a normal pace and demonstrated safe use of the stairs. She did not demonstrate pain, discomfort or breathlessness. The assessor concluded that Mrs B had some difficulty walking but did not meet the threshold of an inability to walk or great difficulty walking. The score of six awarded under the Council’s procedures was lower than the score of ten required for a blue badge. The Council therefore rejected her application.
17. Mrs B appealed the decision. She explained that her condition had not improved since the previous blue badge award. She said that the assessment did not accurately reflect the risk she experiences when walking. She said that on many occasions she can walk 100 metres or more, but the risk of falling is unpredictable – she fell in 2011 and broke her kneecap and has recently had a tetanus injection on account of her falls. She provided the supporting letter from her consultant neurologist and a March 2018 letter from her GP.
18. The Customer Services and Process Operations Manager (the customer services manager) wrote to Mrs B in April 2018 explaining the assessment process and the criteria under which Mrs B’s application was assessed. He explained that the previous blue badge was awarded following a desk-based assessment. He also said that “the assessment observations did not demonstrate that your condition continuously and severely affects your functional mobility on a daily basis to such an extent that you are unable to walk or that you have very considerable difficulty walking”. Accordingly, he considered that the assessment had been properly undertaken.
19. Mrs B then contacted her ward councillor who asked the manager to reconsider the decision. The manager referred Mrs B’s case back to the OTs for review by a senior manager, who undertook a desktop review. Mrs B also contacted the Council’s Assisted Travel Team who arranged for a further assessment.
20. The review outcome was that Mrs B was not eligible for a blue badge. The manager noted in his letter that the consultant’s letter of October 2017 said Mrs B was no longer using a splint which indicated that her condition had improved.
21. The second assessment was undertaken by a different OT. Mrs B walked 160 metres at a slow pace, was able to use the stairs and was not observed to be in pain or discomfort, or breathless. As before, the OT considered that she did not meet the threshold for a blue badge and a score of six was again awarded.
22. The manager again concluded that the application had been considered properly.
23. Mrs B then complained about the Council’s handling of her blue badge application and appeal. The Council considered her complaint through its two stage complaints process. It upheld some aspects of her complaint, including an incorrect reference to the consultant’s letter, but did not consider that this had affected the outcome of her application and appeal.

My assessment

24. Mrs B does not consider that the Council has considered her case holistically. She says she has made it clear to the Council that she does not meet the Government guidelines, as narrowly defined. However, she says that her neurologist has twice set out in writing her need for a blue badge to limit the risk to her due to her propensity to fall. She also considers that the manager’s incorrect reference to the consultant’s letter calls into question whether officers had properly reviewed the supporting evidence that she had provided.
25. The Council has already set out its findings to Mrs B and I do not propose to repeat all those findings here. However, I set below my assessment of what I consider some of the key areas in respect of the way the Council considered matters.
26. The Council has procedures in place which for conducting assessments as recommended by the guidance. It has explained that those procedures are designed to try and ensure consistency. However, the Council’s procedures for considering blue badge applications also involve an appeal process which the Ombudsman would expect to be conducted accurately and properly.
27. In this case, the OT senior manager’s review and the customer service manager’s response to the second stage appeal both incorrectly refer to the consultant’s October 2017 letter as stating that Mrs B has previously managed her condition with a splint (when this is in fact their interpretation of what is stated in the GP’s March 2018 letter). While I appreciate that this may have been a simple error in the OT manager’s review, this does call into question the extent to which the documents were reviewed in the second stage appeal.
28. Moreover, both the customer service manager and reviewing manager gave weight to their interpretation of the GP’s letter as saying that Mrs B’s condition was no longer using a splint and has therefore improved. However, neither manager appears to have observed that this is directly contradicted by the assessment clearly stating that Mrs B continues to use a splint. I am not therefore satisfied that either manager has properly considered the evidence before them.
29. Lastly, I note that, in the response to Mrs B’s first appeal, the customer services manager stated, “the assessment observations did not demonstrate that your condition continuously and severely affects your functional mobility on a daily basis”. This seems to be adding to the threshold of a “a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking” set in the guidance. The Council does not consider that to be the case, suggesting that the term “continuously” was used as a descriptor of “permanent”.
30. I am afraid that I do not agree with the Council’s view. I consider that continuous and permanent have quite distinct meanings. I consider that the use of the term continuously by the customer services manager (who undertook both the first and second stage appeals) therefore calls into question whether the correct tests were applied in considering the appeals.
31. I do not therefore consider that Mrs B’s application and appeals have been considered in a suitably robust manner.

Agreed action

32. To remedy the injustice caused to Mrs B, I have recommended that the Council undertake a further Independent Mobility Assessment. As part of that assessment, Mrs B should be invited to provide any supporting evidence that she may wish, such as evidence of falls and injuries.
33. Given that the new legislation relating to hidden disabilities will come into force at the end of August, I have also recommended that the Council undertake an assessment based on the current law and the law as it will apply from 30 August.
34. If the Council decides that Mrs B is eligible for a blue badge under current legislation, then it should grant a blue badge immediately. If, on the other hand, the Council does not consider that Mrs B would be entitled to a blue badge under current legislation, but that she would be entitled to one under the amended legislation, then the Council should award a blue badge with effect from 30 August.
35. The Council has agreed to my recommendations.

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Final decision

36. I have closed my investigation because the Council has agreed to the steps that the Ombudsman has recommended to remedy the injustice to Mrs B.

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Investigator's decision on behalf of the Ombudsman