Oxfordshire County Council (19 013 820)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 12 Oct 2020

The Ombudsman's final decision:

Summary: Mrs X complains that the Council did not properly consider her application for a blue badge. This meant she put significant time and trouble both into pursuing an application which was wasted, and her complaint about this. The Ombudsman finds the Council at fault in the way it considered her application. He recommended it pay Mrs X £250 and take action to ensure it properly considers applications in future. The Council agreed to this.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains that the Council did not properly consider her application for a blue badge.
  2. Mrs X says when she applied for a blue badge, she expected a swift and positive response, but the Council’s attitude felt condescending and unsympathetic. She felt unfairly judged and unworthy, and it caused her severe anxiety. This was only alleviated when she became automatically eligible and not regarded as a liar, by those meant to help her. She says these were “very dark days”.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision, and later, my revised draft decision, for comment. I took account of the comments I received in response.

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What I found

Background

  1. 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.
  2. The Government issued new guidance which came into force on 30 August 2019. This guidance aims to help councils decide the impact of ‘hidden disabilities’, such as autism which may have an impact on the applicant’s ability to walk.
  3. The guidance sets out two types of eligibility. The first is automatic entitlement (without further assessment). For example, being registered blind or scoring over 8 points under the “Moving around” activity of the mobility component of the Personal Independence Payment (PIP).
  4. Other applicants may be eligible after further assessment. The guidance says eligible people “may be described as”:
    • “a person who drives a vehicle regularly, has a severe disability in both arms and is unable to operate, or has considerable difficulty in operating, all, or some types of parking meter”; or
    • “a person who has been certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, experience very considerable difficulty whilst walking, which may include very considerable psychological distress”.
    • “in addition, they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person”.
  5. The guidance also says
    • “it is important that local authorities give both physical and non-visible (‘hidden’) enduring and substantial disabilities which cause walking difficulty due consideration when determining an applicant’s eligibility in relation to the ‘subject to further assessment’ criteria”.
    • “The DfT expects that, in the context of disabilities that are predominantly non-visible (‘hidden’) in nature, a risk of serious harm to self/others could manifest as one or more of the following behaviours:
        • wandering off or running away, possibly without awareness of surroundings or their associated risks (for example, nearby roads, car park environments)
        • experiencing serious harm or causing harm to others
        • avoiding some/all types of journeys due to the kinds of experiences listed above”.
    • “Local authorities should not expect applicants to ‘self-identify’ the basis upon which they may qualify for a Blue Badge under the ‘subject to further assessment’ criteria.”
    • Local authorities should “recognise that the ‘subject to further assessment’ criteria are not mutually exclusive, and that an individual’s eligibility to receive a badge may need to be assessed in relation to more than one criterion (for example, in cases where physical walking difficulties also cause or are accompanied by very considerable psychological distress and/or risk of harm to the applicant/others)”.
    • “For applicants who may qualify for a badge predominantly due to the impact that a non-visible (‘hidden’) condition has upon their ability to walk during the course of a journey, it is likely to be necessary to document an assessment approach that will be followed to determine their eligibility in relation to the relevant criteria”.

“This may differ across applicants, reflecting the information they have provided and the nature of disabilities they experience, but could include any combination of:

        • “contacting the applicant, or the person who completed the application form on their behalf for further information”
        • “cross-checking existing local authority health and social care records (such as assessments for other benefits, social care, or other support), wherever possible, to validate information they have provided about their disability and its impact on them whilst walking during the course of a journey”
        • “contacting medical, health/social care practitioners, memory clinics, schools, or others to seek further insight about the applicant’s disability and how it affects them whilst walking during the course of a journey”
        • “referring the applicant for an in-person assessment. In many cases, this approach is considered less likely to yield the required insight into how the applicant’s disability affects them whilst walking during the course of a journey, and may therefore be less appropriate for persons who, whilst walking, experience very considerable psychological distress and/or present a risk of serious harm to themselves or others”.
    • “Documenting the approach adopted for each individual applicant enables local authorities to evidence why they believe the most appropriate mechanism has been used for determining the applicant’s eligibility. This may assist in the event of any subsequent challenge received in respect of either the outcome of a Blue Badge application, or the process followed by the local authority”.

What happened

  1. Mrs X developed hidden disabilities including sight loss, in July 2019. This also caused her difficulties with mobility.
  2. Early in September 2019, Mrs X applied to the Council for a blue badge. She said she experienced:
    • severe struggles with journeys between a vehicle and her destination.
    • problems with headaches, dizziness, balance, coordination and memory which cause her to be disorientated.
    • extreme fatigue daily.
    • extreme exhaustion if gradient changes or with steps; sometimes has to sit for long periods and wait.
    • becoming too exhausted waiting for her daughter to park that she could not complete the purpose of the journey.

Mrs X said she needed someone to go with her and take her three wheeled walker in the car. She also said she was awaiting surgery which might affect her walking, and for which she had no date. A specialist occupational therapist (OT) from a specialist support organisation supported Mrs X, and sent in the application on her behalf. The Council asked Mrs X to provide more information. In fact, the surgery Mrs X referred to was to help with an intermittent condition and would not have helped with her main difficulties.

  1. The Council’s records note that Mrs X responded two weeks later but do not detail what she said. The Council returned the application to Mrs X who contacted the Council again the next day. The notes do not detail this contact either, only “additional documents requested”. Less than a week later, the records note Mrs X had responded and provided more documents. These are not identified but were probably GP records. The following day the Council assessed the application and noted the application should be refused but would await further documents which Mrs X wanted to provide. Mrs X and the specialist supporter provided further documents over the next few days.
  2. On 1 October 2019, the Council’s assessment panel considered Mrs X’s application and evidence and refused it. The panel’s checklist noted:
    • it was not sure if Mrs X’s condition was “enduring” or “substantial”.
    • that Mrs X did not present a risk to herself or others.
    • Mrs X did not wander off when moving from the car to her destination.
    • Mrs X claimed to have difficulties including “very considerable” difficulty when walking and avoided going out, but that medical evidence did not support this.

Other than the basic checklist, I saw no record of the panel’s consideration of the information. A separate note said as Mrs X’s difficulties were more a mobility issue, and she was awaiting surgery, she should reapply under the walking criteria after surgery.

  1. At the end of October, Mrs X asked the Council to review its decision. She sent in a letter from her GP and the specialist OT. Their comments included:
    • “Quite certain as a result of this she has sustained an enduring and substantial disability”.
    • Double vision and left sided neglect – often totally unaware of what is happening in the left hand side of her environment.
    • As a consequence of her injury she suffers from extensive fatigue and struggles to concentrate or retain any information.
    • “Especially dangerous…in a car park…she cannot locate moving vehicles or notice when cars are pulling in and out of spaces”.
    • Intermittent vertigo which affects her mobility.
  2. In November, the Council issued its response to the review. It upheld its earlier decision and said Mrs X did not provide enough information for it to consider she met the following eligibility criteria:
    • You experience very considerable psychological distress
    • You are at risk of serious harm
    • You pose a risk of serious harm to another person
  3. I saw no evidence of the Council’s consideration of whether Mrs X was “a person who has been certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, experience very considerable difficulty whilst walking, which may include very considerable psychological distress”. Or whether she was at risk of serious harm when walking or posed a risk of serious harm to any other person.
  4. The Council says it issued a generic response because the “non-visible” criteria were so new. It has changed this and now issues a more detailed response.
  5. Mrs X was unhappy with the outcome and brought her complaint to the Ombudsman. She told me she had to visit the library to access emails for a maximum of one hour and needed support to do this. This caused her significant difficulty in dealing with the application and complaint. Mrs X has since received a blue badge as she received 12 points under the “Moving around” activity of the Personal Independence Payment (PIP) mobility component.

Was there fault which caused injustice?

  1. It is not my role to decide whether Mrs X is eligible for a blue badge or give a view about the degree to which she meets the relevant criteria. My role is to consider whether the Council followed the correct process in coming to a decision. In this case I find the Council failed to do so.
  2. Mrs X was not automatically eligible for a blue badge at this stage so she came under “may be eligible after further assessment”. The Council should have assessed whether Mrs X experienced “very considerable difficulty whilst walking” considering all aspects of her disabilities. It should not matter whether she applied under the non-visible or walking criteria as the difficulties she described fell across both criteria.
  3. The guidance is clear the Council should have taken a more active approach rather than just ask Mrs X for more information (see paragraph 10). It should also have provided a clear record of how it decided she did not experience “very considerable difficulty whilst walking”, but it did not. This was fault and caused Mrs X injustice as she lost the opportunity of having her blue badge properly considered at the earliest opportunity. She spent significant time and trouble pursuing her complaint at an already difficult time in her life.

Agreed action

  1. To remedy the injustice identified above, I recommended the Council:
    • Apologise to Mrs X in writing.
    • Pay Mrs X £250 for the lost opportunity, time, and trouble it caused.
    • Ensure that it considers all applications in line with the guidance quoted at paragraph 11 of this decision with detailed recording of this, and its decisions.
  2. The Council should complete the apology and payment within one month of the final decision. Within two months, it should provide the Ombudsman with details of action it has taken to ensure applications are considered properly in future.

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Final decision

  1. I have completed my investigation and uphold Mrs X’s complaint that the Council did not properly consider her application for a blue badge. I am satisfied that completing these actions will remedy the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman

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