Summary: The Council was at fault for failing to properly explain why it refused Mr B’s freedom pass application. The reason it gave (that Mr B did not live in the area) was incorrect, and it failed to explain its actual reason (that Mr B did not meet its learning disability criteria). The Council has agreed to write to Mr B’s mother and explain its decision. It has also agreed to make a payment of £150 to recognise the uncertainty its handling of Mr B’s application caused her.

The complaint

1. The complainant, whom I refer to as Mrs C, complains on behalf of her son, whom I refer to as Mr B.
2. Mr B is an adult with a diagnosis of Asperger Syndrome. In September 2019 he began a work skills placement in London, so moved from his family home to his aunt’s house in London.
3. Before Mr B moved to London, Mrs C applied for a freedom pass (which gives free travel to disabled London residents) on his behalf.
4. Mrs C complains that the Council refused to issue a pass to Mr B because he did not live permanently in London. She says this decision was not in line with the Council’s criteria. She says this placed a financial burden on her because Mr B’s placement is unpaid, so he cannot afford to pay for his own travel.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I considered information from Mrs C and the Council.
8. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened?

9. The Council’s eligibility criteria for a disabled persons freedom pass say that, to qualify for a pass, an applicant’s sole or principal residence must be in Havering.
10. The criteria say an applicant’s disability must have lasted at least 12 months (or be likely to last at least 12 months) and must have a substantial effect on their ability to carry out normal day-to-day activities.
11. The criteria also say that, when an applicant has a learning disability – which the Council defines as a state of “arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning” – they must be registered with the Council’s community learning disability team (CLDT).

What happened?

12. In mid-2019 – before Mr B’s work skills placement began – Mrs C applied for a freedom pass on his behalf. She said he has a formal diagnosis of Asperger Syndrome, has a disabled national bus pass, receives disability benefits, and would be attending a placement specifically for people with autism.
13. The Council told Mrs C that Mr B would not be eligible for a freedom pass, because he only intended to stay in London for a year, and therefore his permanent address was outside London. It said passes could not be issued for less than five years.
14. Mrs C complained, and said the Council’s eligibility criteria do not say an applicant’s residency has to be long-term – only that their sole and principal residence must be in London. She said Mr B’s placement was in central London so he needed to use trains and the Underground as well as buses (so could not use his existing national bus pass). She said the Council had provided no good reason why it could not issue a pass for less than five years.
15. Mrs C provided evidence with her complaint which confirmed Mr B’s diagnosis and his London residence.
16. The Council wrote to Mrs C and conceded that, for the purposes of freedom pass eligibility, Mr B’s address in London was his principal address while he was attending his placement. It said Mr B should be able to apply for a pass and should not be refused solely because of residency.
17. The Council also told Mrs C that there was no reason it could not issue a pass for less than five years. It said Mr B would have to return the pass at the end of his placement.
18. However, the Council said it could not approve a freedom pass application from Mr B until its CLDT had assessed him. It provided advice on how Mrs C could ask for such an assessment.
19. Mrs C referred Mr B to the Council’s CLDT for assessment in October 2019, and the CLDT considered the referral at its allocations meeting. It decided Mr B did not meet the Council’s learning disability criteria.
20. The meeting record does not set out why Mr B did not meet the criteria, and the Council did not write to Mrs C to explain. It did, however, write an email to her in November and said the reason Mr B would not get a pass was because he did not appear to live in London.
21. Although Mrs C challenged this, she did not receive a further response from the Council.

My findings

22. For applicants with “arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning”, the Council expects that – if they are to be eligible for a freedom pass – they live in Havering and are registered with the Council’s CLDT.
23. After some initial doubts, the Council told Mrs C that – while Mr B is attending his work skills placement and living with his aunt – he satisfies the residency requirement. Its CLDT then gave some consideration to his case. However, the Council then refused his application and told Mrs C that this was on grounds of residency.
24. Given that the Council had already considered Mr B’s residence and decided he lived in the area, the reason it gave for refusing his application – that he did not appear to live in the area – was a direct contradiction of what it had already agreed with Mrs C. It was also an unfair application of the Council’s criteria, which do not say someone has to be a permanent resident to be eligible for a pass.
25. This was fault by the Council.
26. The Council now says its refusal of Mr B’s application was actually because he did not meet its learning disability criteria. It is not for me to decide whether Mr B meets these criteria; however, in not properly recording its refusal reason or explaining this to Mrs C at the time (and, in fact, in giving her a different, incorrect reason) the Council fell below acceptable standards of decision-making and record-keeping. This was compounded by the fact that, when Mrs C tried to challenge the (incorrect) residency decision again in November 2019, she received no response.
27. Mr B suffered no injustice from the Council’s failings, because Mrs C paid his travel expenses. However, Mrs C experienced uncertainty from the Council’s inconsistent communications.
28. The Council should now provide Mrs C with a written explanation of its decision to refuse Mr B’s freedom pass application. Mrs C should then be able to challenge this decision through the Council’s usual channels if she wishes to.
29. The Council has also offered to make a payment to Mrs C to recognise her injustice. I consider this to be a reasonable offer, and the Council should now make a small symbolic payment to recognise the uncertainty she has experienced.

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Agreed actions

30. The Council has agreed to write to Mrs C and explain, with reference to its learning disability criteria, why it refused Mr B’s freedom pass application.
31. In its letter, the Council has agreed to advise Mrs C how she can challenge or complain about the refusal if she wishes.
32. The Council has also agreed to make a payment of £150 to Mrs C to recognise the uncertainty she experienced from its handling of Mr B’s application.
33. The Council should complete these actions within six weeks of the date of this decision statement.

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Final decision

34. The Council was at fault for failing to properly explain why it refused Mr B’s freedom pass application.

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Investigator's decision on behalf of the Ombudsman