Summary: Mr X complains the Council did not assess him properly before it rejected his application and appeal for the renewal of his blue badge. He says its decision has stopped him leaving the house and has made him feel depressed. He wants it to reconsider his application and reinstate his badge. The Ombudsman has found the Council was not at fault because it considered Mr X’s application and appeal in line with the guidance issued by the Department for Transport.

The complaint

1. The complainant, who I shall refer to as Mr X, complains the Council did not assess him properly before it rejected his application and appeal for the renewal of his blue badge. He says its decision has stopped him leaving the house and has made him feel depressed. He wants it to reconsider his application and reinstate his badge.

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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)

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How I considered this complaint

4. I have:
• Read Mr X’s complaint and the documents he submitted in support of it. I have also discussed the matter with his daughter.
• Considered the Council’s comments about the complaint and the supporting documents it provided.
• Provided both parties with an opportunity to comment on the draft decision.

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What I found

5. The Department for Transport’s (DfT) blue badge scheme is designed to help disabled people with severe mobility problems access goods and services by allowing them or a carer to park near their destination. Local authorities are responsible for the day-to-day administration of the scheme, including assessing whether people are eligible for the badge. They may outsource these tasks to a private company, although they are still ultimately responsible for the actions of that company.
6. In 2012, the DfT issued guidance to councils to help them administer the scheme. In 2014, it updated this guidance.
7. The guidance says that councils must ensure they only issue badges to residents who satisfy one or more of the criteria set out in legislation. There are two types of eligibility criteria. One is where a person is eligible without further assessment. The other is where the person is eligible subject to further assessment.
8. Individuals are eligible without further assessment if they fulfil certain criteria, such as being registered blind.
9. Those people who are eligible subject to further assessment must fulfil one of two criteria to qualify for a badge. These apply if the applicant:
• 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.
10. When assessing an individual’s walking ability, the guidance states that “applicants who can walk more than 80 metres (87.5 yards) and do not demonstrate very considerable difficulty in walking through any other factors would not be deemed as eligible”.
11. It should be noted that an applicant’s eligibility is not determined merely 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 criteria in the regulations.
12. Regarding the format of assessments, the guidance states it is up to each local authority to decide how it will assess applicants.
13. After 30 August 2019, new guidance introduced by the DfT will come into effect. This guidance contains new eligibility criteria for people with non-physical or ‘hidden’ disabilities.

What happened

14. In mid-January 2019, Mr X submitted an application to the Council to renew his blue badge. In his application, he ticked the box which indicated he was not registered as severely sight impaired or blind, but said elsewhere in the form that he was blind in his right eye. He noted he had no disability in both arms but suffered from depression. Regarding his walking ability, he said he could walk about 50 yards and this would take him 10 to 15 minutes. He also said he experienced shortness of breath when walking and had fallen on three occasions in the past 12 months. He submitted a letter from his GP in support of his application.
15. In mid-February 2019, the Council screened Mr X’s application and decided he was not eligible without further assessment. It subsequently scheduled a date for a face-to-face assessment to take place.
16. At the beginning of March 2019, an occupational therapist assessed Mr X. In her notes, she listed his medical conditions and highlighted she had reviewed the letter written by his GP. She noted he had full range of movement in both arms and possessed fine motor control in his hands. Regarding his walking ability, she assessed several factors, including his speed, the distance he walked, the effort required, pain levels, breathing, gait, and his ability to manage stairs. She scored him points in each area and gave him a total score of 18, which was below the required level of 24 or more. She also noted he had been able to walk 90 metres in 3 minutes and 58 seconds.
17. After completing her assessment, the therapist decided Mr X was not eligible. In her summary, she noted he had walked over 80 metres using a stick at a slow speed using small steps. However, she stated she observed no signs of significant fatigue, substantial pain, impaired balance, shortness of breath, or any substantial mobility impairment which would make him eligible.
18. A few days later, the Council wrote to Mr X to notify him of the outcome of his application. It also told him how he could appeal the decision.
19. In the middle of the month, Mr X submitted an appeal to the Council. On his appeal form, he said he was registered blind/severely sight impaired. He noted he had suffered from a retinal detachment and listed his various medical conditions.
20. At the beginning of April 2019, the Council wrote to Mr X to notify him his appeal had been unsuccessful. It noted he had not submitted any new information in support of his appeal and detailed his initial application. It then outlined the responses he gave to an assessor that had called him to discuss his appeal and noted several discrepancies in the information he had submitted. In conclusion, it said he had exhausted the appeal process but could reapply within nine months if his circumstances changed.
21. Approximately a week later, Mr X complained to the Ombudsman about the matter. He notes he held his blue badge for over 10 years and his health had deteriorated in the intervening period, not improved. In addition, he says he has difficulty understanding complex conversations and states the telephone assessment during the appeal stage was conducted without any prior notice being given.

Analysis

22. I have reviewed the DfT guidance and checked whether the Council properly applied it when considering Mr X’s application and appeal. In the former, I note he said he was not registered blind, but later in his appeal said he was registered blind. If he is registered blind then he might be eligible for a blue badge. However, the DfT guidance states formal registration takes place when a consultant ophthalmologist signs a Certificate of Vision Impairment (CVI). In this case, Mr X did not provide the Council with a copy of a CVI therefore it was correct not to consider him eligible under this criteria. Similarly, I have not found any evidence that he fulfilled any of the other criteria for eligibility without further assessment.
23. Regarding the face-to-face assessment, I see the occupational therapist conducted a range of movement test and concluded Mr X had full range of movement in both arms and possessed fine motor control in his hands. The assessor who conducted the appeal also reasoned he was able to use a parking meter. Consequently, the Council was right not to consider him eligible under the first part of the further assessment criteria.
24. The second part of the further assessment criteria states applicants may be eligible if they have “a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking”. It also states those “who can walk more than 80 metres (87.5 yards) and do not demonstrate very considerable difficulty in walking through any other factors would not be deemed as eligible”.
25. The occupational therapist noted Mr X was able to walk 90 metres, albeit at a very slow speed. She also noted he displayed no signs of significant fatigue, substantial pain, impaired balance, shortness of breath, or any substantial mobility impairment which would make him eligible. I have not identified any errors in the way the assessment was carried out and the information I have seen indicates the occupational therapist followed the DfT guidance.
26. Considering all of these points, I have found the Council was not at fault for the way it considered Mr X’s application and appeal. I note he was not given any prior notice of the telephone assessment at the appeal stage and he says he struggles to understand complex conversations. However, there is nothing in the DfT guidance which states applicants should be given notice before a telephone call, nor is there any evidence that suggests the Council should not have called Mr X.
27. I also note Mr X’s GP wrote a letter in support of his application and listed his various medical conditions. However, the DfT guidance states GPs must remain outside the decision-making process, although any evidence they do submit can be taken into consideration. Similarly, the guidance says:

“… eligibility is not determined merely 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 criteria in the regulations.”

28. The DfT guidance recommends that councils give applicants a detailed explanation why their application is refused. Similarly, it says they should not just state an applicant failed to meet the eligibility criteria. In this case, the contractor acting on behalf of the Council did not tailor the refusal letter it sent to Mr X at the beginning of March 2019. Rather, it quoted sections of the DFT guidance and did not mention, in any detail, why Mr X was not eligible. I do not consider this issue, in isolation, is so serious as to merit a formal finding of fault against the Council. However, it should consider whether it needs to take any action to resolve this matter.
29. Despite my findings, it is possible that Mr X may be eligible if he submits additional evidence to the Council for consideration. I understand he is under the care of a consultant ophthalmologist. Therefore, he could consider speaking to this individual to see if he can obtain a CVI to support his case, if he is registered blind. If he obtains this, he could consider submitting a new application to the Council.
30. Likewise, the new guidance issued by the DfT comes into effect after 30 August 2019. Under the new criteria, a person may be eligible if they have been:

“… certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to experience very considerable difficulty whilst walking, which may include very considerable psychological distress…”

31. I note Mr X suffers from depression and has done so for a long time. Therefore, he may want to speak to a psychologist to check whether he fulfils this new criteria. If he does, he could consider submitting a new application to the Council.

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Final decision

32. The Council was not at fault because it considered Mr X’s application and appeal in line with the guidance issued by the DfT.

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Investigator's decision on behalf of the Ombudsman