Summary: The complainant says the Council did not follow correct procedures and give clear reasons for refusing a Blue Badge application. The Council says it followed procedure and told the complainant he was not eligible. It accepted it had taken too long to deal with the complaint. The Ombudsman finds the Council acted with fault in its handling of the application causing injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains that when dealing with his Blue Badge application the Council failed to:
• Properly consider the application without delay;
• Properly consider Mr X’s eligibility under the Blue Badge Scheme and guidance issued to help councils manage it;
• Refer Mr X to the Ombudsman earlier in the procedure.
2. Mr X through his representative says this led the Council to consider the application without all relevant information because the application form was incomplete and caused him and his family distress and inconvenience. Mr X wants the Council to review its procedures and review its decision.

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The Ombudsman’s role and powers

3. 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)
4. If 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

5. In considering this complaint I have:
• Reviewed the information presented by Mr X’s representative;
• Put enquiries to the Council and studied its response;
• Researched all relevant law, government guidance and policy;
• Shared a draft decision with Mr X and the Council and considered the comments received.

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What I found

6. Councils manage the Blue Badge (Disabled Persons’ Parking) Scheme established under the Chronically Sick and Disabled Persons Act.
7. Councils judge eligibility for the Blue Badge by deciding if an applicant is ‘eligible without further assessment’ or ‘eligible subject to further assessment’. Where a council refuses to issue a Blue Badge, it must under give a written decision and explain why the Council is refusing the application.
8. To be eligible without further assessment the applicant must show they receive certain benefits. These include the Department of Work and Pensions awarding them 8 or more points on the moving around component of the Personal Independence Payment (PIP). Or the applicant must show for example they are registered blind (severely sight impaired). If the applicant cannot show they meet these criteria, then their application may be considered under the eligible subject to further assessment criterion.
9. When considering eligibility subject to further assessment the Council must consider whether the applicant has “a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking.”

What happened

10. In January 2017 Mr X’s representative applied for a Blue Badge for him. Mr X had previously received a Blue Badge and travel concessions. The Council refused the application in March 2017. The application form was not fully complete. The Council said in its decision Mr X’s score for Personal Independence Payment (PIP) of 4 points did not meet the score set by the Blue Badge Scheme. The letter says:

“You have applied under the ‘subject to further assessment’ criteria on the basis of your walking disability…

“The reasons for not issuing a badge are that from all the information available to us if the applicant receives Personal Independence Payment they have to have been awarded 8 points or more…unfortunately you have been awarded 4 points …and therefore you do not appear to meet the strict eligibility criteria…”

11. Mr X says this is wrong. Mr X needs to show the DWP awarded him 8 or more points on his PIP to qualify for a Blue Badge without further assessment. Mr X says he does not need this score for consideration subject to further assessment.
12. The Council’s letter of 17 March 2018 said Mr X needed to provide recent medically validated evidence of a permanent and substantial walking disability. The evidence must be new and not a repeat of the evidence put forward with the original application
13. Mr X’s representative challenged the decision and presented further information to the Council. In June 2017, the Council wrote to Mr X via his representative. The letter explained Mr X’s registration as partially sighted rather than blind meant the Council could not consider him eligible ‘without further assessment’. The letter refers to what circumstances may make Mr X eligible subject to further assessment. It ends by saying the Council cannot offer a Blue Badge to anyone who does not qualify under these criteria. The letter does not give its reasons for deciding Mr X had not shown himself eligible subject to further assessment.
14. In August 2017 Mr X’s representative asked the Council to review its decision. The representative asked the Council to consider Mr X’s circumstances. He is severely partially sighted, has Down’s syndrome with associated joint problems, autism and a heart condition all of which affect his walking ability. The representative explained Mr X cannot walk far without support and experiences pain and discomfort limiting his mobility.
15. On 21 August 2017 the Council responded by saying a medical assessment “…would not tell us anything we didn’t already know…”. The Council believed information gained from the Department of Work and Pensions gave enough information for its decision. The Council’s letter also said if the family had new medical information it would look at the application again. It did not undertake a review in response to the August 2017 letter.
16. In January 2018 Mr X’s representative sent new medical information to the Council and asked for a copy of Mr X’s Blue Badge case file. Mr X’s representative said the medical report used by the DWP did not cover the broader context because it does not include considering any psychological conditions that may render a person unable to walk.
17. In a letter dated 19 January 2018 the Council told Mr X’s representative on reviewing the information it found the original application form presented in March 2017 incomplete. The Council asked Mr X to complete a new form and return it within 28 days. Mr X says the Council had not previously asked him to send in a new form.
18. Mr X provided information from medical consultants showing he has low muscle tone and more likely to fall because of this. Mr X’s representative returned the form on 7 February 2018 with medical reports from consultants responsible for Mr X’s care.
19. On 27 February 2018 Mr X’s representative wrote to the Council setting out the reason Mr X believed the Council had not properly dealt with his application. The Council treated this as a complaint and referred it to its complaints’ procedure. In its letter of 12 March 2018, the Council says “…it is only reasonable to ensure the level of symptoms experienced as a result of the condition be explained...”. Therefore, it had referred Mr X for an Independent Medical Assessment. This meant the Council would consider whether Mr X could show eligibility subject to further assessment.
20. Mr X’s representative responded on Mr X’s behalf. She pointed out the Council had refused Mr X’s application on 17 March 2017. It confirmed that decision in June 2017. It had not changed its reason for refusal. The Council made no reference to Mr X’s possible eligibility ‘subject to further assessment’. The representative pointed out it had been the representative who asked for an independent medical assessment. When the representative asked for that assessment the Council says it had reviewed the application already and told the representative to provide further medical evidence.
21. An independent mobility assessment took place on 3 April 2018. The Council says the mobility assessment did not show Mr X had difficulty walking. In its letter of 16 April 2018 setting out its decision on Mr X’s appeal the Council says:

“…the aim of the assessment is to obtain an independent medical opinion of [Mr X’s] walking ability as demonstrated at the time of the assessment…the level of difficulty in walking …falls short of a “very considerable difficulty” required by the legislation.”

22. The letter continues by saying while the Council had sympathy for the difficulties Mr X faces in day to day life, he had not shown he qualified for a Blue Badge. The letter ends by saying the decision rests with the Council and there is no further right of appeal. It did not say the applicant had the right to refer the matter to the Ombudsman.
23. The Council says it considered all information presented when deciding Mr X’s application.
24. Mr X’s representative filed a complaint about the Council’s handling of the application and the application for a review. The complaint passed through the two stages of the Council’s complaints procedure. The original complaint filed in March 2018 did not receive a Stage 2 response until October 2018 and the Council apologised for that delay. It partially upheld one complaint but rejected the others. The Council found fault in the failure to say clearly in its letter of 1 June 2017 that this was a review decision.

What should happen

25. The Department for Transport issued guidance called the “Blue Badge Scheme Local Authority Guidance (England)” (the Guidance). This is not statutory guidance meaning the Council should consider it while it is not binding on the Council. Where councils do not follow the Guidance, the Ombudsman may decide a council acted with fault because it is not following good practice.
26. The Guidance says:

“…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.”

“It is good practice for local authorities to provide scope for an applicant to be referred to an independent mobility assessment if they are unable to make a clear and robust decision on eligibility using … desk-assessment.”

27. On considering whether someone has very considerable difficulty in walking the Guidance says several factors may be relevant. These include excessive pain; breathlessness; distance walked; speed; use of walking aids; outdoor walking ability. The assessor needs to consider whether walking presents a danger to the applicant’s life or would be likely to lead to a serious decline in their health.
28. The Guidance also says:

“Whilst medical conditions such as asthma, Crohn’s disease…autism… 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. Each application should be considered on its merits…”

29. On record keeping the Guidance says:

“Local authorities should also keep a record of the procedures used and the outcome of the assessment process. This will help the authority to provide greater transparency to applicants and to demonstrate that correct procedures have been followed in the event of a complaint to the Local Government Ombudsman.”

30. Appendix G of the Guidance identifies the ‘core principles’ for independent mobility assessment. They include ‘observing’ the applicant walking.
31. Variable conditions may be best considered through a face to face mobility assessment. This enables the assessor to ask questions about the frequency and severity of those variable conditions on walking ability. Assessments should consider walking difficulties arising from cognitive impairments. The Guidance says the important issue is whether the excessive pain or breathlessness occurs as a direct result of the attempt to walk. Not whether it occurs while walking or later.

Analysis – was there fault leading to injustice?

32. My role is to consider whether the Council properly considered the application for a Blue Badge. It is not to decide whether the Council should award Mr X a Blue Badge. That remains a decision for the Council.
33. The Council says Mr X applied using a partially completed application form. It did not challenge that until a year later. The Council should have challenged this earlier. However, the Council did say in response to the application it had concerns about Mr X’s PIP entitlement as shown on the application form. The Council recommended Mr X appeal the DWP’s decision on that score so he might achieve a higher score that may result in an award of a Blue Badge without further assessment.
34. The Council’s decision letter of 17 March 2017 is confused and misleading. It gives its decision that Mr X does not automatically qualify for a Blue Badge. Mr X had not shown he had the necessary 8 points awarded on his PIP application and could not show he had been registered blind. However, the Council’s letter implies he is not eligible under the ‘subject to further assessment’ criterion because he did not show this score. That is wrong. An applicant under this criterion does not have to show they have a PIP score of 8 or more. Although the letter correctly lists the eligibility criteria it applies the automatic criteria to the application. It should not. I find the Council at fault for issuing a misleading decision.
35. The letter should have said Mr X did not qualify on the automatic grounds but could be considered with further assessments and invite him to provide the necessary evidence in support of his claim.
36. Following Mr X’s appeal, the Council’s letter of 1 June 2017 did not say clearly whether it was a review decision. The Council upheld that as a fault when it considered the complaint.
37. The Council says it sent this letter in response to a request for further details from Mr X’s representative. I understand that but it should still make it clear a decision has been made and that the matter may still be referred to the Ombudsman. None of the letters make that reference and they should. Therefore, I find the Council at fault for failing to direct Mr X to the Ombudsman.
38. Mr X reasonably expected the Council to consider his application subject to further assessment. The Guidance recommends referrals for an independent mobility assessment on review if the Council has not undertaken one before. The Council offered this assessment on review. It should have considered at an earlier stage.
39. During the assessment the assessor watched Mr X walk for the minimum distance recommended in the guidance, 30m. The Council’s decision letter says the assessment is about how Mr X walked during that assessment. However, the information given on what happens at an assessment says the assessor will consider the impact of medical conditions. Mr X provided more medical information. However, the records do not record detailed explanations of how the assessor and officers considered the likely impact of Mr X’s conditions on his ability to walk without the risk of falling. Records need to show how the Council’s officers considered the information.
40. The Council did not set out for Mr X and his representative the procedure it would follow to (a) review its decision on the application and (b) consider the complaint. This has led to confusion and some delay in dealing with both. Both the Guidance and Ombudsman encourage clarity and transparency in decisions. I find the Council acted with fault in failing to be clear about its procedures.
41. The complaints procedure took too long taking eight months to issue its decision at stage 2 of the procedure. I find the Council at fault for that.
42. The complaints procedure failed to identify the Council wrongly applied the automatic criteria to an application it described as made subject to further assessment. I find the Council at fault for this failure.
43. These faults caused distress, delay and confusion for which Mr X should receive a remedy. I cannot say but for these faults the Council would have awarded Mr X a Blue Badge. But for these faults Mr X would have received a reasoned decision, details of how to ask for a review, and a speedier response to his complaint.

Recommended and agreed action

44. To address the injustice arising from the faults identified I recommend, and the Council agrees, to within four weeks of my final decision:
• Apologise to Mr X for these faults;
• Pay Mr X £200 in recognition of the distress, time and inconvenience caused by addressing these faults;
• Invite Mr X to present a further application with medical information and commits to considering all relevant information before deciding the application.
• Share this decision with officers to remind officers which criteria to apply;
• Review procedures and ensure decision letters show if not satisfied with the result of the decision or review an applicant may ask the Ombudsman to consider the matter.

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Final decision

45. In completing my investigation, I find the Council acted with fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman