Summary: The Ombudsman does not find fault with the way the Council considered Mr B’s application for a Blue Badge or his subsequent appeal.

The complaint

1. Mr B complains about the way the Council assessed his Blue Badge application. He also complains about the way it considered his appeal.

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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 considered the information Mr B provided with his complaint. I made enquiries with the Council and considered all the information it provided and the law and guidance referred to below.
5. Mr B and the Council had an opportunity to comment on my draft decision and I carefully considered the comments I recieved.

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What I found

Guidance and council policy

Department for Transport Blue Badge Scheme Local Authority guidance

6. The Blue Badge (Disabled Persons’ Parking) Scheme was introduced in 1971 under Section 21 of the Chronically Sick and Disabled Persons Act 1970 (‘the 1970 Act’)1.
7. The aim of the scheme is to help disabled people with severe mobility problems to access goods and services, by allowing them to park close to their destination. The scheme is open to eligible disabled people irrespective of whether they are travelling as a driver or as a passenger.
8. In August 2019 the guidance changed to include a new category of non-visible ‘hidden’ disabilities. The new criteria extends eligibility to people who:
• Cannot undertake a journey without there being a risk of serious harm to their health or safety or that of any other person (such as young children with autism).
• Cannot undertake a journey without it causing them very considerable psychological distress.
• Have very considerable difficulty when walking (both the physical act and experience of walking).
9. An individual's eligibility for a Blue Badge is considered in terms of being ‘eligible without further assessment’ (previously known as ‘automatic’) or ‘eligible subject to further assessment’ (previously known as ‘discretionary’).
10. Under regulation 8 of the 2000 Regulations a local authority may refuse to issue a Blue Badge if the applicant fails to provide the local authority with adequate evidence of their eligibility, either as an individual or as an eligible organisation.
11. Regulation 8(3) of the 2000 Regulations states that where a local authority receives an application for a badge and refuses to issue one, it must let the applicant know in writing why their application was refused.
12. Local authorities are strongly recommended to establish an internal procedure to deal with appeals against an authority’s decision not to issue a badge. This process needs to be clear, straightforward, and fair, and not in itself a deterrent to applying for a badge. In addition, it is important that this appeal procedure is clearly signposted to unsuccessful applicants in their decision letter.

Northamptonshire County Council appeal policy

13. If an applicant wishes to appeal the decision they should notify the Council in writing within one month of the refusal notification. The applicant should provide additional medical or supporting evidence not available with the initial application.
14. The Council policy says:
• Where a recommendation is that the applicants condition does not appear to meet the required criteria, it will further review the case based on the eligibility criteria outlined by the Department of Transport, the information on the initial form, the assessment, and any evidence supplied to support the appeal.
• It will normally let the applicant have a decision within one month of receiving an appeal, but this may be longer if the council needs further evidence of the condition.
• As a result of the appeal, it will let the applicant know the outcome of the assessment.
• If it does not hear from the applicant within one month the application will stay declined. If the appeal is unsuccessful or not needed, the applicant may apply again within a six month period if their personal circumstances change with regard to their disability or they become eligible under the automatic criteria for the scheme.

What happened

15. Mr B applied for a Blue Badge at the beginning of August 2019 under the automatic eligibility criteria.
16. The application was declined because it did not meet the criteria.
17. Mr B appealed the decision, but this was not upheld by the Council.
18. Mr B remained dissatisfied with the Council’s response and complained to the Ombudsman.
19. In response to my enquiries the Council said:
• When assessing Mr B’s appeal it was decided that the decline definition was in-between “did not meet government eligibility criteria” and “further information required to assess eligibility”. This was due to Officer A understanding Mr B was trying to apply under the new non-visible criteria which had since gone live but would not have been applied at the time.
• Officer A sent a response advising Mr B that due to scoring zero for ‘moving around’ on his Personal Independence Payment (PIP) he would not be automatically eligible for a Blue Badge. However, this does not affect his right to make another application under the new non-visible criteria. It advised if Mr B felt he fit one or more of the criteria then to apply as a non-visible applicant where we could fully assess his eligibility.
• The reason for asking Mr B to reapply and not provide further documentation via email was due to the drastic difference between an automatically eligible application and a further assessment application.
• When applying under the automatic criteria the customer would only be asked to provide proof of supporting documents to prove eligibility.
• When applying under the further assessment criteria we require a proof of diagnosis letter and an application form to be completed. This enable us to assess each customer fairly and ensure we have gathered the correct information.
• The Council displayed information throughout the website and via the customer service centre to communicate the transition of criteria. It ensured this was clear for customers like Mr B, who applied online, by displaying the below information above the “Apply for or renew a Blue Badge” tab:

‘Northamptonshire have received the Local Authority guidance regarding hidden disabilities and are reviewing this in anticipation of the legislation changes that will come into effect on the 30 August. There will be no changes in application processes until this date. Applicants who would like to apply under this new criteria will need to wait until this change comes into effect’.

• This is the reason why the new guidance would not have been applied when Mr B applied before the 30 August, which was warned when applying. Mr B’s appeal was then received and at this time the new criteria was live. Due to the criteria being live and Mr B stating in his appeal email he would like to apply as a non-visible applicant. We advised Mr B to apply under the new criteria.
• The information provided by Mr B at the appeal stage was not enough to assess his eligibility against the new criteria.
• The Council is yet to receive a non-visible application from Mr B and would be happy to support him applying and reassess under the new criteria to be able to determine his eligibility for a non-visible blue badge.

Analysis

20. The key issue in this case is the timing of Mr B’s application. Mr B says he applied for a Blue Badge under the new non-visible disability category. The new guidance, which included this new category, came into effect on 30 August 2019. Mr B submitted his application on 07 August 2019 and the Council sent its decision on 14 August 2019.
21. Mr B’s appeal and the Councils decision were made in September 2019. The appeal was considered under the old guidance because of when the application was made.
22. I considered whether it would have been reasonable for the Council to exercise discretion and consider Mr B’s appeal under the new guidance, which included the non- visible disability category.
23. The Council provided a detailed explanation of why it did not do this (paragraph 19).
24. In its decision it explained to Mr B if he wanted to apply under the non-visible disability category he would need to submit a new application. It provided him with information about how to do this.
25. The Council also provided evidence of the information it published on its website about the proposed changes and application process for those applying under the new guidance. This made it clear that applications under the new guidance would need to be made after 30 August 2019.
26. I do not find fault with the way the Council considered Mr B’s application for a Blue Badge. It considered his application in line with the guidance which was in place at the time of Mr B’s application. It informed Mr B that although he did not qualify for a Blue Badge automatically he could reapply and provide additional information to be considered for a Blue Badge under the non-visible disability category introduced in the new guidance.
27. The Council says it will support Mr B to apply under the new criteria and will reassess to determine his eligibility. This option remains open to Mr B.

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Final decision

28. I do not find fault with the way the Council assessed Mr B’s Blue Badge application or considered his appeal.

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Investigator's decision on behalf of the Ombudsman