Summary: The Council has failed to provide evidence that it properly assessed Ms B’s application to renew her blue badge. To remedy the injustice caused, it agreed to re-assess Ms B’s application, apologise and make her a payment.

The complaint

1. Ms B complains that the Council refused to renew her blue badge and that, in assessing her application, it failed to consider all relevant information including her mental health conditions.

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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’. 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)
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 considered all the information provided by Ms B together with comments made by the Council in response to our initial enquiries.
5. I have written to Ms B and the Council with my draft decision and given them an opportunity to comment.

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What I found

The Blue Badge scheme

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. In 2014 the Department for Transport (DfT) issued guidance (‘the guidance’) to councils for providing blue badges to disabled people with severe mobility problems. The guidance is non-statutory which means 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 that, where an applicant is eligible subject to further assessment, an independent mobility assessor should undertake a face-to-face assessment of their mobility. 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 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.
12. 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.
13. 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.
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.
15. New Regulations came into force on 30 August 2019 and new guidance was published by the DfT in September 2019. The new Regulations introduced new eligibility criteria for people with non-visible (‘hidden’) disabilities.

Key facts

16. Ms B’s blue badge expired on 1 August 2018. She delivered her renewal application to the Council on 20 July 2018 and it asked her to attend an assessment.
17. Ms B attended the assessment on 4 September 2018 and took with her supporting medical evidence. She says she answered all the questions put to her but the assessor who said she needed more information and asked whether Ms B would be willing to be assessed by an independent NHS physiotherapist. Ms B agreed. She offered the assessor her medical evidence but was told that, if she submitted this, she would be deemed to have foregone the assessment by the physiotherapist and moved to the final stage where her hospital specialist would be consulted and she would not be able to request a physiotherapist assessment at a later date. Ms B decided to attend an assessment with a physiotherapist.
18. Ms B attended the physiotherapist’s assessment on 22 November 2018. She says the physiotherapist observed that her mental health impacted greatly on her physical health and vice versa. The physiotherapist said she could not assess Ms B’s mental health but would include her observations in her report.
19. The Council wrote to Ms B explaining that the outcome of the assessment was inconclusive and it could not support her application for a blue badge without further information from her consultant. Ms B completed a consent form for the Council to contact her consultant.
20. In February 2019 Ms B’s consultant told her he had provided information to the Council and ticked a box stating she should receive a blue badge.
21. On 21 February 2019 Ms B received a letter from the Council declining her application. It said the information provided by her consultant did not state that she met the criteria set out by the DfT.
22. Ms B submitted a complaint to the Council on 16 April 2019 but received no response.

Analysis

23. Ms B says the Council’s assessment process is not transparent and it failed to inform her of the procedure. She says the Council told her she had completed all stages of the procedure, including the appeal stage, when she was unaware that she had appealed. Ms B also says the Council failed to take into account her mental conditions and how they impact on her mobility and did not accept the evidence provided by her consultant.
24. The Council’s procedure at the time was that, if a negative decision was made on the basis of the application form alone, an applicant could appeal within 21 days of the date of the letter notifying them of the decision. In such cases, the applicant would be referred to a physiotherapist for further assessment. If the applicant received a negative decision following the physiotherapy assessment, they could make a complaint. This would be treated as a complaint rather than an appeal because the Council would not question the merits of the medical assessment made by the physiotherapist. However, the onus was on the complainant to provide alternative compelling medical evidence including a declaration showing how they meet the mobility criteria from an appropriate medical practitioner such as a consultant. The Council’s policy states it will aim to provide a full answer to blue badge complaints within 28 days.
25. The Council is currently reviewing its policy and procedures in light of the new Regulations which came into force in August 2019 and introduced new eligibility criteria for people with non-visible (‘hidden’) disabilities.
26. The Ombudsman asked the Council to provide a copy of its decision on Ms B’s blue badge application, the mobility assessment document and any appeal papers. The Council has not been able to provide any of these documents. This is fault.
27. In view of the lack of documentation, there is not enough information for me to reach a view on whether the Council properly considered Ms B’s application and took into account all relevant evidence. This causes Ms B a significant injustice because she will never know whether her application was properly assessed.
28. The Council’s failure to respond to Ms B’s complaint was also fault and put her to time and trouble in having to complain to the Ombudsman.

Agreed action

29. To remedy the injustice caused, the Council has re-considered Ms B’s application under the new Regulations and issued a replacement blue badge. It has also agreed to:
• apologise to Ms B for the failure to retain the documents relating to her application and the failure to respond her complaint; and
• pay her £250 for the time and trouble it has put her to.

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Final decision

30. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman