Dorset Council (19 011 950)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 11 Mar 2020

The Ombudsman's final decision:

Summary: the complainant says the Council failed to properly consider her application for a Blue Badge. The Council says it considered the information presented with the application and took advice but decided Mrs X had not passed the eligibility tests. The Ombudsman finds the Council acted without fault.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, says the Council has failed to properly consider her application for a blue badge. Mrs X says it failed to consider the impact on her well-being and mental health arising from the effects of an irritable bowel disease.
  2. Mrs X wants the Council to review it decision and grant a blue badge because her ‘hidden disability’ has a serious impact on her health making it difficult for her to access public facilities.

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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:
    • Read the information presented in Mrs X’s complaint by her representative;
    • Put enquiries to the Council and studied its response;
    • Researched the relevant law, guidance and procedure;
    • Shared with Mrs X and the Council my draft decision and reflected on the comments received from both Mrs X and the Council.

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What I found

The Blue Badge Scheme

  1. The Blue Badge scheme helps disabled people with severe mobility problems access goods and services by allowing them to park near to their destination. It aims to help people with visible and non-visible (‘hidden’) disabilities.
  2. The Department for Transport (DfT) issued Guidance in 2019 (‘the guidance’) on how to consider applications. The guidance says 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 by way of a mobility assessment.
  3. Councils should consider any conditions that affect the applicant’s mobility. The guidance says councils should consider the impact of ‘hidden disabilities’ on an applicant’s ability to walk during their journey to reach their destination. The impact should result in ‘very considerable difficulties’ or a ‘risk of serious harm’ to the applicant when walking during their journey. To qualify the applicant must show their hidden disability would prevent them accessing goods and services unless they could park close to shops and public buildings. (Blue Badge Scheme Local Authority Guidance para 4.85)
  4. The guidance recommends that when considering applicants who say they experience considerable psychological distress while walking councils should allow people to:
    • Explain in their own words how the disability affects them while walking;
    • Identify any coping strategies they use, and how effectively they work;
    • Document any treatment or medication they receive to help them manage the condition;
    • Identify the health practitioners involved in their diagnosis and continuing treatment;
    • Explain how they experience any severe or overwhelming anxiety.
  5. The guidance says councils should assess ‘hidden’ disabilities using an assessment tailored to the nature of the disability and the way it affects them while walking. (Blue Badge Scheme Local Authority Guidance para 4.92)
  6. In deciding the severity of the impact councils may consider the frequency with which an applicant experiences the impact. The guidance suggests a reasonable test to apply is whether the difficulty occurs ‘more often than not’. The presence of a named disease such as an irritable bowel disease does not of itself show eligibility. However, the severity of the impact may meet the eligibility test. (Blue Badge Scheme Local Authority Guidance para 4.86)
  7. The guidance says the primary benefit a blue badge confers on a badge holder is parking close to a destination. If this will not help an applicant with the difficulty they experience, then the council should consider this in its eligibility decision making. (Blue Badge Scheme Local Authority Guidance para 4.89, bullet point 4)
  8. The eligibility test applies to all applicants equally whether their disability is visible or non-visible (‘hidden’) (Blue Badge Scheme Local Authority Guidance para 4.80)

What happened

  1. Mrs X has an irritable bowel disease which when it flares up means she needs to park close to places where she can easily and quickly access a toilet. Mrs X says the disease causes her significant anxiety about walking to her destination and not reaching the toilet in time. That has an impact on her ability to go out and access goods and services, impacting on her mental health and well-being. Mrs X believes the Council has failed to properly consider the impact of her ‘hidden disability’ contrary to law and guidance.
  2. The Council says guidance and the research carried out for the DfT says a Blue Badge is unlikely to ameliorate the need to use a toilet at short notice. The research also said councils should consider the frequency with which the applicant experiences ‘very considerable’ difficulty in walking or presents a ‘risk of serious harm’ resulting from the disease.
  3. When it assessed Mrs X’s application the Council says she did not provide a valid reason for being eligible for a blue badge. The Council did not refer her for an independent mobility assessment because it says it had no valid reason to.
  4. The Council says Mrs X does not meet any of the eligibility criteria for automatic eligibility for a Blue Badge. Mrs X does not dispute that view. To gain a Blue Badge Mrs X needs to show she met the criteria for eligibility subject to further assessment. That means she must show she cannot walk or has very considerable difficulty while walking or is at risk of serious harm when walking.
  5. In responding to Mrs X’s appeal the Council explained the DfT advice says having an irritable bowel disease does not make someone eligible for a badge. The Council could only consider granting one if the condition resulted in a significant impact on her mobility. In commenting on my draft decision, the Council says it invites applicants to present any evidence they feel would assist their application. That means Mrs X could present medical evidence of the impact on her mobility. The Council says it did not have any evidence to support granting Mrs X a Blue Badge. Therefore, the Council refused the application.
  6. The Council says it has considered the application in line with DfT guidance and its own Blue Badge policy and procedure. The Council asked the DfT for further advice while considering Mrs X’s application. Without further evidence to support a referral for a mobility assessment the Council decided the application on the information provided by Mrs X. The Council decided Mrs X had not shown she experienced very considerable difficulty when walking because of a hidden disability.
  7. In commenting on my draft decision Mrs X says that while she manages her condition well its nature is to present her with unpredictable and unexpected flare ups. These result in severe stomach pains which make walking even several feet difficult. Mrs X says if she could not park near to a toilet during an episode Mrs X would experience extreme anxiety, psychological distress and a panic attack. The impact is therefore in her view, significant and severe.

Analysis – has there been fault leading to injustice?

  1. My role is to consider if the Council followed correct procedure and complied with the guidance when assessing Mrs X’s blue badge application. If it did, I cannot challenge the merits of the Council’s decision. If it did not, then I may ask it to review that decision.
  2. Mrs X says her medical condition makes it difficult for her to walk and keep control if the toilets are too far from her car. This causes her great anxiety and distress which may aggravate her condition. The guidance issued by the DfT recognises irritable bowel diseases may impact on an applicant’s ability to walk or avoid risk, but this is not automatic from the diagnosis. The applicant must show what coping mechanisms and medication they use and why the blue badge would help them better manage their condition. As part of the consideration the Council may consider the frequency with which Mrs X needs to access a toilet as a sign of the condition’s severity.
  3. I cannot decide whether Mrs X passes the eligibility tests for a blue badge. Only the Council may do that. My role is to consider if the Council properly considered all relevant information when deciding the application.
  4. Councils may refuse an application without referring an applicant to a mobility assessor. On the information presented the Council says Mrs X did not show her hidden disability placed her at risk of severe harm or that she had very considerable difficult walking to her destination. The information she presented with her application and on appeal did not in the Council’s view show how the Blue Badge would help her better manage her hidden disability. Therefore, it says it could not award a Blue Badge.
  5. The Council considered all relevant information presented and took advice from the DfT before refusing the application. Therefore, I find the Council acted without fault in considering the application.

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Final decision

  1. In completing my investigation, I find the Council acted without fault in considering the application for a Blue Badge.

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Investigator's decision on behalf of the Ombudsman

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