Summary: The Ombudsman will not investigate Mrs A’s complaint that the Council wrongly refused her a Blue Badge. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an investigation.

The complaint

1. Mrs A says the Council wrongly refused her a Blue Badge as she suffers with fibromyalgia which causes chronic pain and cannot walk very far. Mrs A says the Council should award her a Blue Badge.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information and documentation the Council and Mrs A provided. I sent Mrs A a copy of my draft decision.

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What I found

4. The Department for Transport issues Guidance to Councils for providing Blue Badges to disabled people with severe mobility problems. The Guidance introduced specific criteria for assessing an applicant’s eligibility which was not a feature of the previous scheme.
5. The Guidance sets out two types of eligibility criteria for issuing Blue Badges: ‘Eligible without further assessment’ and ‘Eligible subject to further assessment’. To qualify under the latter, “an applicant must have a permanent and substantial disability that means they cannot walk, or means they have very considerable difficulty walking.”
6. The Guidance identifies specific factors for Councils to consider when assessing an applicant’s eligibility for a badge:
• Excessive pain
• Breathlessness
• Distance and length of time to walk
• Pace
• Manner of walking
• Danger to life for applicants with serious chest and lung conditions.
7. The guidance says that 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 as eligible.
8. The Council assessed Mrs A for a Blue Badge. The outcome of that assessment was that she did not meet the criteria. Mrs A appealed the decision. The appeal was unsuccessful.
9. Medical conditions impacting on Mrs A’s mobility record she has Fibromyalgia and suffers with pains in her legs and groin. Mrs A says she finds it increasingly difficult to walk any distances and suffers with shortness of breath at times due to asthma. She takes medication for pain relief and inhalers for breathlessness. Mrs A does not automatically qualify for a badge under the Guidance.
10. In April 2019, an Assessor for the Council carried out a mobility assessment. The record of the assessment shows Mrs A:
• walked 80 metres at a normal pace. The assessor recorded; ‘no walking aids used, did not require rest.
11. Mrs A did not meet the criteria for a Blue Badge. The Council wrote to Mrs A confirming its decision. It said the reason for the decision is;

‘the applicant does have a disability that causes some difficulty when walking. This level of difficulty however, falls below the definition of ‘very considerable difficulty walking’ which is the criteria for a Blue Badge in accordance with the Department for transport Blue Badge guidance. The guidance clarifies that the applicant would have to demonstrate severe discomfort due to pain or breathlessness that impacted on their ability to walk and would be unable to walk 30m or only able to walk up to 80m with very considerable difficulty. Mrs A reports a history of fibromyalgia and that her symptoms can vary from day to day. On assessment today she was observed to walk 80m from the assessment room, through the centre, around the car park and back to her car. This 80m took 1m 50s at a normal pace. She did not use any walking aids, require a stop and there were no objective signs of increasing discomfort. Based on this, she therefore does not meet the criteria for a Blue Badge at present but due to the nature of the conditions the symptoms could change with time meaning she may meet criteria in the future.’

12. Mrs A appealed the Council’s decision and included a letter of her diagnosis of fibromyalgia and several medical exemptions from work notes.
13. The Council reviewed Mrs A’s assessment and considered the information she provided. It confirmed Mrs A did not meet the criteria for a Blue Badge in June 2019. The Council said:

‘ You have recently asked for a final review of your Blue Badge application. I can confirm that I have thoroughly checked that all assessment procedures have been followed correctly at every stage of the application process. I am satisfied that this is the case.

Thank you for providing your GP fit notes and the first page of a report from Dr [B].

I understand that you experience fatigue and pain should you have to walk a long distance, however the mobility assessment showed that you were able to walk the 80m with relative ease. You showed no signs of needing to rest, used no walking aids and walked at a normal pace. Those with significant difficulty in walking could walk at a very slow pace and with the assessor being able to visibly see that it is a struggle.

The medical evidence that you supplied does state that you have problems with sleep and experience fatigue, however I understand from this letter that you manage your symptoms with medication and are now under the care of your GP. The mobility assessment was conducted properly and the report shows that you were asked various questions, completed the seated exercises (showing you had full functional movement) and a walking exercise. The assessor noted your medication and that your symptoms can vary from day to day. You did state that on a good day, you have minimal restriction in your walking and on a bad day, you manage to go out but accompanied by your husband. The assessments are conducted by qualified medical professionals who would understand your diagnosis. They would also take into account that it is not only pain that you endure whilst and after walking, but also, fatigue.

I appreciate you will be disappointed but the decision to not award a Blue Badge will not be changed.

14. The Ombudsman cannot question the outcome of a Blue Badge assessment that has not been affected by an administrative fault. Nor can he substitute his own opinion for professional judgment. Having considered the assessment and appeal papers I am satisfied that the Council has considered Mrs A’s individual circumstances, taken account of the relevant factors and assessed her in line with the Guidance.

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Final decision

15. The Ombudsman will not investigate this complaint. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman