Summary: Ms T complains that the Council did not properly assess her application for a Blue Badge. The Ombudsman finds the Council failed to accurately record the time taken by Ms T to walk a particular distance; failed to properly record and explain the reasons for its decisions; and failed to inform Ms T of her right to complain to the Ombudsman.

The complaint

1. Ms T complains that the Council did not properly assess her application for a Blue Badge.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I have considered the information provided by the Council and Ms T.
5. I have written to Ms T and the Council with my draft decision and considered their comments.

Back to top

What I found

Legal and administrative background

6. The Blue Badge scheme is to help disabled people with severe mobility problems access goods and services by allowing them to park near their destination. The scheme provides parking concessions for Blue Badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing whether people are eligible for a Badge.
7. The Department for Transport (DfT) has issued guidance to councils for providing Blue Badges to disabled people with severe mobility problems. 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 councils must only issue Badges to people who satisfy one or more of the criteria set out in legislation. A person is eligible without further assessment if they receive:
• the higher rate of the mobility component of Disability Living Allowance, or
• eight points or more under the ‘moving around’ activity of the mobility component of Personal Independence Payment.
9. A person is eligible subject to further assessment if they:
• drive a vehicle regularly, have a severe disability in both arms and cannot operate, or have considerable difficulty in operating, all or some types of parking metres; or
• have a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking.
10. The guidance says an independent mobility assessor should undertake a face to face assessment of the applicant’s mobility if they are not eligible without further assessment. 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.
11. The guidance sets out several factors that are relevant in deciding whether an applicant meets the criteria for a Blue Badge. These include: speed of walking; distance walked; excessive pain; and breathlessness.
12. The guidance says 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 eligible for a Badge.
13. 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.
14. The guidance recommends a council should have a review mechanism, which preferably does not involve someone directly involved in the original decision. The council has an appeal process for applicants who are unhappy with its decision.

Key facts

15. Ms T has arthritis affecting both hips. She applied to the Council for a Blue Badge. The Council invited her to a mobility assessment because she did not automatically qualify for a Blue Badge. The assessment was completed by an occupational therapist (OT) who decided Ms T did not meet the criteria. The Council wrote to Ms T following the assessment explaining her application was unsuccessful.
16. Ms T requested a review of the Council’s decision. The Blue Badge Lead discussed the assessment with the OT to decide whether to validate or overturn the decision. The decision to refuse a Blue Badge was upheld. The Council wrote to Ms T confirming this and explaining there was no further review beyond this stage. It did not advise Ms T that, if she remained unhappy with the Council’s response, she could contact the Ombudsman.

Analysis

17. It is not the Ombudsman’s role to decide whether Ms T qualifies for a Blue Badge but to ensure the Council followed the correct procedure when it made its decision.

The mobility assessment

18. Part of the mobility assessment consists of a timed walk. The OT should calculate the applicant’s walking speed then place him or her into one of a set of categories and award points based on the category.
19. In this case, the OT recorded that Ms T walked at a pace of 40-60 metres per minute which is a slow pace. The Council has explained the OT assessed Ms T’s walking speed from her years of experience in undertaking mobility assessments. I consider this to be unsatisfactory. The OT should have accurately and objectively recorded the time it took Ms T to walk the distance and recorded the exact time on the form. In my view, it is not sufficient for her to assess the time without a stopwatch. Failure to accurately record the time taken to walk the relevant distance causes Ms T a significant injustice because it casts doubt on whether the assessment was an accurate reflection of her mobility difficulties. I am pleased that the OT service has now purchased a stopwatch to use during assessments to make the timing more objective.
20. The OT did not record the distance Ms T walked on the mobility assessment form. But wrote, “reception to office to stairs to ramp to courtyard”. The Council has explained this means Ms T initially walked from reception to the office where the verbal assessment took place. She then walked from the office to the stairs and around the entire courtyard. The various routes have previously been measured and are provided to the Blue Badge assessor on a chart. The Council has provided a copy of this chart which shows Ms T walked 33 metres from reception to the office and then 166 metres from the office to the stairs and around the courtyard. While I am satisfied with the Council’s explanation, I consider the actual distance walked should be recorded on the mobility assessment form rather than describing the route taken so that it is clear to someone who does not have access to the chart exactly how far the applicant walked.

The decision letter

21. The decision letter the Council sent Ms T did not explain the reasons she was not eligible for a Blue Badge. It set out a list of possible reasons why the criteria were not met and stated, “the reason for the decision is due to one or more of the following”. This is not sufficient. Regulation 8 (3) of the Disabled Persons (Badges for Motor Vehicles)) (England) Regulations 2000 states that, where a council receives an application for a badge and refuses to issue one, it must tell the applicant in writing why the application was refused. The guidance states “DFT strongly recommends that every applicant who is refused a Badge should be given a detailed explanation of the grounds for refusal. It is not sufficient to simply state that the applicant did not meet the eligibility criteria”.
22. In line with the Regulations and guidance the Council should have set out detailed reasons why it found Ms T did not meet the criteria for a Blue Badge. The Council’s failure to do so was fault and caused Ms T a significant injustice as she did not fully understand the reasons why she was not eligible.
23. The Ombudsman expects authorities to provide a clear explanation of the reasons why an application has been refused in the decision letter. This transparency can avoid complaints being made and upheld. By providing detailed feedback for unsuccessful applicants, councils can proactively reduce the number of appeals they receive.

The review

24. the review was dealt with by the Blue Badge Lead and the OT who carried out the face to face assessment. The guidance recommends there should be provision for the applicant’s case to be reviewed by the issuing authority “preferably by someone who was not directly involved in the initial decision”. As the guidance does not prohibit the review being carried out by someone who was involved in the initial decision, there are no grounds to criticise the involvement of the OT who did the face-to-face assessment. But I consider it would be best practice for the decision to be reviewed by someone who was not involved in the initial decision.
25. I am pleased the Council has now changed its review procedure so that a desktop review is now carried out by a different OT to the one who undertook the mobility assessment and the findings are discussed with the Occupational Therapy Service Lead with a view to: providing a Blue Badge; carrying out a telephone assessment to gather further information; conducting a further face-to-face assessment; or upholding the original decision.
26. The notes of the mobility assessment review contain no details of the reasons for the decision but simply state “reject”. This is fault. The reasons for upholding the original decision should be recorded on the form.
27. The decision letter sent to Ms T following the review did not explain the reasons for the review decision. As explained above, this does not comply with the guidance and is fault. This left Ms T with uncertainty about why the Council had upheld its original decision.
28. In addition, the letter did not advise Ms T of the Council’s complaints procedure or that she could bring the matter to the Ombudsman if she remained dissatisfied.

Injustice

29. Ms T suffered a significant injustice because of the Council’s failings. In particular, she has suffered uncertainty as to whether the Council’s decision to refuse her a Blue Badge was properly taken.

Agreed action

30. The Council has agreed to complete a new face to face assessment with a different OT within one month of the Ombudsman’s final decision, subject to Ms T’s availability.
31. The Council has also agreed that, within three months of this decision, it will complete a review of the assessment part of its Blue Badge process and write a new policy and procedure document and provide a copy to the Ombudsman. The document should include the following:
• decision letters (including review decision letters) should include a detailed explanation of the reasons for the decision to refuse an application;
• review decision letters should explain the applicant’s right to complain to the Ombudsman;
• the reasons for review decisions should be recorded on the mobility assessment review form; and
• the time taken by an applicant to walk a particular distance should be recorded with a stopwatch and the time and distance walked written on the mobility assessment form.

Back to top

Final decision

32. I find the Council was at fault in failing to:
• accurately record the time taken by Ms T to walk a particular distance;
• properly explain the reasons for its initial decision to refuse Ms T’s application and the reasons for upholding the decision at review;
• inform Ms T of her right to complain to the Ombudsman; and
• record the reasons for the review decision on the mobility assessment review form.
33. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman