Oxfordshire County Council (18 020 005)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 30 Oct 2019

The Ombudsman's final decision:

Summary: the complainant applied for a Blue Badge parking permit in February 2019. The Council found him ineligible under the current guidance. The application is eligible under new government guidance which came into force in August 2019. The Council says it told the complainant to apply later in the year once the new guidance came into force. The Government issued the new guidance in June 2019. In response to the Ombudsman’s invitation in July 2019 to consider a remedy the Council granted the Blue Badge. The Ombudsman finds the Council acted without fault in issuing the Blue Badge once the Government issued the guidance.

The complaint

  1. The complainant, whom I shall refer to as Mr X, says the Council failed to properly consider his application for a Blue Badge and to exercise discretion to apply new guidance when deciding his application. Mr X says the Council recognising under new guidance his application would succeed told him to apply later in the year.
  2. Mr X says the loss of his Blue Badge severely impacted on his daily life and he wanted the Council to issue a Blue Badge. In response to my enquiries the Council decided to issue a Blue Badge. However, Mr X asked me to continue with my investigation because he felt this did not offer him a full remedy for the inconvenience and distress caused in waiting for the Blue Badge.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. In considering this complaint I have:
    • Contacted Mr X and read the information presented with his complaint;
    • Put enquiries to the Council which in response issued a Blue Badge;
    • Researched relevant law, guidance and policy;
    • Shared with Mr X and the Council a draft decision and reflected on any comments received.

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What I found

The Law, guidance and policy

  1. Councils may award Blue Badges allowing badge holders to park in restricted areas using powers under the Chronically Sick and Disabled Persons Act 1970.
  2. In 2014 the Department of Transport issued guidance to councils on how to consider applications for blue badges from disabled people with severe mobility problems. The guidance introduced functional mobility assessments.
  3. The guidance sets out two types of eligibility. The first recognises applications which have automatic entitlement to a badge (without further assessment) because they meet the eligibility criteria. One of which includes the applicant scoring over 8 points in their Personal Independence Payment assessment.
  4. Other applicants may be eligible after further assessment for example once an assessor has watched them walking. Under this second criteria (eligible subject to further assessment) an applicant must show they either:
    • Drive a vehicle regularly, has a severe disability in both arms and cannot operate or has considerable difficulty operating all or some types of parking meter; or
    • Has a permanent and substantial disability that causes inability to walk or considerable difficulty walking.
  5. The guidance recommends councils consider the distance the applicant can walk and whether they show excessive pain or breathlessness from walking a set distance and to note the speed of the applicant’s walk.
  6. The Government issued new guidance which came into force on 30 August 2019. This guidance aims to help councils decide the impact of ‘hidden disabilities’, such as autism which may have an impact on the applicant’s ability to walk.

What happened

  1. In February 2019 Mr X applied for a Blue Badge. In his application Mr X recorded that he suffered from autism, dyspraxia, obesity, thyroidism, diabetes, sleep apnoea, agoraphobia, anxiety, depression and post traumatic stress disorder. Mr X confirmed these conditions had a constant and permanent affect on his ability to walk.
  2. To support the application Mr X included information from those treating his conditions including a letter from his Consultant Clinical Psychologist.
  3. Mr X did not score above 8 points on his Personal Independent Payment (PIP) awarded by the Department for Work and Pensions (DWP) and so did not meet the automatic right to a blue badge. The Council sent a refusal letter to Mr X on 21 February 2019. The Council suggested Mr X would be more successful under the new guidance and told him to apply later in the year when it came into force.
  4. Mr X asked the Council to review its decision. It did and looked at whether Mr X had points awarded for the ‘moving around’ component in his benefits from the DWP. He does not and so the Council wrote on 28 March 2019 upholding its decision not to approve the Blue Badge. It did not consider exercising discretion to award a Blue Badge in March 2019 because the Department for Transport did not issue the new guidance criteria until June 2019. The Council did not know the exact terms of the guidance and therefore says it could not be sure Mr X’s application would succeed. The Council says had Mr X applied again in June 2019 he may have succeeded in receiving the Blue Badge a little earlier. In commenting on my draft decision Mr X says the Council still had discretion and could have awarded the Blue Badge under the former guidance.
  5. In my enquiries to the Council dated 10 July 2019 I invited the Council, as the Ombudsman does in every enquiry, to consider if it could offer a remedy for the complaint. In response the Council decided now it knew the contents of the new guidance it could with certainty consider the application and offered Mr X a Blue Badge. It says that is less than a month after the Council knew the detail of the changes in the guidance. It still acted ahead of the guidance’s implementation date of 30 August 2019. Until the implementation date it had no legal duty to issue a Blue Badge under that guidance.
  6. Mr X wanted the Council to issue a Blue Badge. Now it had, I asked Mr X if he wished to withdraw his complaint. Mr X asked me to continue with the investigation because he believes the Council could and indeed, should have exercised its discretion earlier and applied the new guidance. Mr X says that would have enabled him to have the Blue Badge in February or March 2019 instead of July 2019.
  7. The Council’s decision Mr X says prevented him from going out, improving his socialisation resulting in him continuing to experience isolation. He wants to tackle the isolation but without the Blue Badge found it difficult to park and walk any distance. Mr X believed under the new guidance he would be eligible.

Analysis – has there been fault leading to injustice?

  1. My role is to consider if the Council decided Mr X’s application with or without fault not to say whether Mr X should have a Blue Badge.
  2. There is no dispute the Council correctly applied the current Guidance to the application. The Council knew the Government’s new guidance would come into effect from August 2019. Therefore, once the Government issued the new guidance the Council could consider exercising discretion and use them to consider Mr X’s application. The Council told him to apply later in the year so it could consider the application once the Government had published the guidance. There is no dispute Mr X met the new guidance on eligibility.
  3. Until the new guidance came into force the Council had no duty to grant a Blue Badge. The Council says it could not have issued a Blue Badge earlier because the Government did not issue the guidance in its final format until June 2019. Only then did councils know the scope of the guidance and could safely consider issuing any Blue Badges ahead of time. Until then it would only exercise discretion in exceptional circumstances.
  4. I applaud the Council’s decision to exercise discretion in response to our enquiries. It issued the Blue Badge in July 2019. I find the Council acted without fault in declining to consider issuing a Blue Badge before June 2019 because it could not do so until the Government issued the detailed guidance.

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Final decision

  1. In completing my investigation, I find the Council acted without fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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