Westminster City Council (18 014 188)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 05 Mar 2019

The Ombudsman's final decision:

Summary: The Council was not at fault in how it considered Ms B’s application for a disabled parking badge. As the Ombudsman has not found fault in how the Council made the decision, we cannot question the decision itself.

The complaint

  1. The complainant, whom I refer to as Ms B, complains that the Council refused to issue her with a disabled parking badge. She says the Council failed to properly assess her pain, evidence from her GP, or her ability to carry objects such as shopping bags.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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 spoke to Ms B about her complaint, and considered information from Ms B and the Council.
  2. I have written to Ms B and the Council with my draft decision and considered their comments.

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What I found

  1. On 6 June 2018 the Council refused Ms B’s application for a disabled parking badge.
  2. Ms B appealed the decision on 21 June. She said the Council had failed to properly consider that:
    • She has Reynaud’s Disease, which – because of its impact on her circulation – means she gets cold in winter and has to be as close as possible to her destination;
    • She has a tear to a tendon in her right shoulder, which means she cannot carry items, including shopping or her handbag; and
    • She has regular dizziness and balance problems.
  3. On 20 August an occupational therapist (OT) conducted a face-to-face mobility assessment as part of Ms B’s appeal. The assessor observed Ms B walking and assessed her under several categories, giving a ‘score’ for each one. The form says an applicant is eligible for a badge if they score 10 or higher on the assessment.
  4. The assessor observed that Ms B:
    • reported no pain during her assessed walk and did not stop for a rest (score of zero);
    • did not appear to experience, and did not report, breathlessness or a tight chest, and was able to keep pace with and talk to the assessor (score of zero);
    • walked 80 metres and showed ‘moderate’ difficulty walking (score of one);
    • walked at a slow pace of 40-60 metres per minute (score of one);
    • walked unaided, did not take any rest breaks and could talk while walking, but may have balance problems and “a slight limp” (score of one); and
    • could walk up and down stairs at a slow pace, one step at a time, with use of a rail, and reported that she may take rest breaks during or after using stairs (score of two).
  5. The assessor scored Ms B a total of 5, and recorded that she should not be eligible for a badge. She noted that, although Ms B has difficulty carrying shopping because of her shoulder and with cold weather because of Reynaud’s Disease, these issues are not part of the Government’s eligibility criteria and so did not affect her eligibility.
  6. On 3 September the Council wrote to Ms B and told her it had refused her application for a badge. It said her overall mobility difficulties were not severe enough to meet the necessary criteria.
  7. Ms B complained about this decision on 17 September, and said the OT assessment did not reflect diversity of disability, and did not properly recognise the pain she experiences. She said the OT failed to consider how the cold affects Reynaud Syndrome, and did not explain why she has difficulty carrying heavy objects (because of her torn shoulder tendon).
  8. Ms B said the OT only assessed walking, not other forms of mobility (involving use of arms). She said her lack of pain was only because of a steroid injection, and the pain is severe and intermittent.
  9. The Council answered Ms B’s complaint on 9 November. It recognised the pain she experiences and the issues she has with cold, but said the question an assessor considers is whether this impact is enough to meet the criteria for a badge. It said that, in doing this, an assessor considers mobility, which in Ms B’s case meant she was not eligible.
  10. The Council said it could not question an OT’s professional opinion as part of the complaints procedure. It said assessors must comply with Regulations, and Ms B was observed to be more mobile than the category of applicant to whom disabled badges are issued.
  11. The Council said that, if Ms B’s condition worsened, and she had evidence, she could reapply. It said that, alternatively, she could reapply after six months.

Law and guidance

The Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000

  1. The Regulations set out which people are entitled to disabled parking badges. Some of these people – such as those who receive the higher rate of the mobility component of the disability living allowance (DLA) – are automatically eligible.
  2. Others are eligible subject to further assessment. These are people who:
    • have a severe disability in both upper limbs and cannot turn (by hand) the steering wheel of a motor vehicle even if that wheel is fitted with a turning knob; or
    • have a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking.
  3. Following amendments to the Regulations in 2011, a person’s eligibility should be confirmed by an independent mobility assessor, unless a council is satisfied that a permanent and substantial disability is self-evident.

The Council’s Disabled Person Parking Permits Business Rules

  1. The national blue badge scheme does not apply in the Council’s area because it is in central London. However, the Council uses its own scheme of both white and blue badges.
  2. The white badge scheme gives free on-street parking to disabled drivers and passengers, but is only available to those who live in the Council’s area.
  3. The blue badge scheme gives free parking to all disabled drivers and passengers with a badge, including non-residents, but only in specific bays and for limited amounts of time.
  4. Other concessions available under the national blue badge scheme do not apply in the Council’s area. However, the Council’s blue badge would enable those with a badge to park in other council areas under the terms of the national blue badge scheme.

The Blue Badge Scheme Local Authority Guidance (2014)

  1. This guidance is non-statutory, so councils do not have to adopt it. Also – as above – some parts of the national scheme do not apply in the Council’s area.
  2. However, the document does set out ‘best-practice’ guidance for assessing applicants and their mobility.
  1. The guidance says assessors can consider:
    • Excessive pain reported by the applicant when walking, or because of the effort of walking;
    • Any breathlessness reported by the applicant when walking, or because of the effort of walking;
    • The distance an applicant can walk without excessive pain or breathlessness;
    • The speed at which they can walk;
    • How long an applicant can walk for;
    • The manner in which the applicant walks;
    • An applicant's use of walking aids;
    • The applicant’s outdoor walking ability (ability to walk on non-flat terrain); and
    • Whether the effort of walking presents a danger to the applicant's life, or would be likely to lead to a serious decline in their health.
  2. The guidance says entitlement depends on the applicant's difficulty in walking, and considerations such as difficulty in carrying parcels or luggage are not to be taken into account.

Analysis

  1. It is not my role to decide if someone is eligible for a disabled parking badge, and I cannot question a council’s decision if it was properly made. I can only consider how a council made a decision.
  2. In considering this, I expect councils to have followed correct procedure and to have fully considered evidence (including medical evidence). If this has not happened, I can ask a council to reconsider its decision.
  3. Ms B is not automatically entitled to a disabled parking badge. Although she receives the mobility component of DLA, this is at the lower rate, so does not qualify her for a badge without further assessment.
  4. As Ms B does not have a severe disability in both arms, the Council asked an independent mobility assessor to consider whether Ms B has ‘a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking’.
  5. Although the national blue badge scheme guidance does not fully apply in the Council’s area, the assessor still considered all the elements of mobility which the guidance suggests as best practice.
  6. Having considered the information Ms B provided about her conditions, and having observed her during an assessed walk, the assessor noted Ms B’s difficulty walking but decided her mobility was not poor enough to justify eligibility for a badge.
  7. Although Ms B disagrees with the assessor’s decision, it is not for me to question the judgement of a qualified medical professional. The assessor fully considered the information she had about Ms B’s mobility difficulties and assessed her in line with the best-practice guidance.
  8. The assessor also noted that Ms B’s difficulties carrying items (and with the cold) were not part of the Government’s eligibility criteria. This is correct – entitlement depends only on an applicant’s difficulty in walking, not other matters (such as carrying baggage).
  9. As a result, I can see no evidence of fault in how the Council considered Ms B’s application for a blue badge. As there was no fault in how the decision was made, I cannot question the decision itself, and so I have not found fault with the Council.

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Final decision

  1. The Council was not at fault in how it considered Ms B’s application for a disabled parking badge. As I have not found fault in how the Council made the decision, I cannot question the decision itself.

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Investigator's decision on behalf of the Ombudsman

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