Summary: Mr X complains about the Council’s decision to refuse his application for a Blue Badge. The Ombudsman has found fault by the Council. To remedy its fault, and the injustice caused, the Council has now reviewed its decision not to grant Mr X a Blue Badge.

The complaint

1. The complainant, who I am calling Mr X, complains about the Council’s decision to refuse his application for a Blue Badge. He says his mobility assessment was not completed correctly, his medical evidence not taken into account, and the Council failed to consider his application properly.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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

5. I have spoken to Mr X and read what he has told us about his complaint, together with the Council’s responses and information.
6. I invited Mr X and the Council to comment on a draft version of this decision and took account of the responses received.

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What I found

The Blue Badge scheme

7. The Blue Badge scheme helps disabled people with severe mobility problems access goods and services by allowing them to park near their destination. Local councils are responsible for administering the scheme, including the assessment of eligibility.
8. The Council has a contract with Access Independent (AI), an independent company of health professionals, under which AI administers all aspects of the application process on the Council’s behalf. But the Council remains accountable for Blue Badge eligibility criteria and assessments.
9. The Council’s website confirms when an existing Blue Badge holder applies for a renewal, their circumstances will be re-assessed to determine whether they are still eligible for the badge.

Assessment of eligibility for a Blue Badge

10. The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations set out which people are entitled to Blue Badges. The rules changed on 1 September 2019 to include people who cannot walk, as part of a journey, without considerable psychological distress, or the risk of serious harm, due to “hidden disabilities”.
11. Under these regulations some people are automatically eligible for Blue Badges. Others are eligible subject to further assessment, including those who have been certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to experience very considerable difficulty whilst walking.
12. The Department for Transport (DofT) published an updated version of the Blue Badge Scheme Local Authority Guidance on 30 August 2019, taking account of the expanded eligibility criteria. The Guidance is not statutory but the Council follows it. Many of the recommendations are included in its Eligibility Criteria Statement.
13. The Guidance says:
• applicants may be eligible if they can walk 30-80 metres without pain or breathlessness but demonstrate very considerable difficulty in walking through a combination of other factors such as speed and, or, manner of walking.
• applicants who cannot walk 40 metres in a minute (including stops) are walking at an extremely slow pace which is likely to make walking very difficult, when considered in isolation.
• pain is subjective. Consideration may need to be given to cross-referencing an applicant’s reported experience of pain with information they provide about their enduring and substantial disability including details of medication they take.
• eligibility is not solely determined by the presence or absence of any particular diagnosis or condition. It is the effect of any enduring or substantial disability on their ability to walk which is assessed.

What happened

14. In August 2019 Mr X applied to the Council for a Blue Badge. He had held a Blue Badge since 2006 and was applying for its renewal. His application was dealt with by AI on the Council’s behalf.
15. His eligibility was subject to further assessment. In October 2019 one of AI’s expert assessors carried out a mobility assessment. Mr X provided the assessor with a printout of his medical history with his GP surgery.
16. The assessor recorded the following about Mr X’s mobility:

• Distance walked; observed walking 70 m in 3.27min, continuously up to 80 m with considerable signs of distress.
• Walking speed; observed walking at a pace of less than 0.67m/sec including stops, which is deemed extremely slow.
• Effort of walking; observed discomfort, walking considered adequate, stiff
• Managing steps/stairs; reported climbs placing both feet on tread
• Level of pain; observed as more consistent
• Manner of walking; observed to be unconfident – reported fallen in last 3-6 months but no medical intervention
• Breathing; observed no evidence of breathlessness

17. The assessor recorded a score of 22 for Mr X using the Council’s scoring system for the above categories, below the Council’s minimum eligible score for a Blue Badge of 24.
18. The assessor recorded Mr X as not being eligible for a Blue Badge and declined his application. In the summary at the end of the assessment form the assessor said:

“Although applicant reports severe back, neck & left knee pain and walks at a very slow pace he provides no medical evidence as to why he has had this pain. A spinal MRI shows “very minor degeneration” is seen in inferior L5 (lumbar spine) endplate and Xray of ..neck and knee are both reported “normal”. Comparing evidence to observed projected mobility issues there is nothing to support his claim for BB or what he reports as severe pain causes”

19. AI wrote to Mr X, on the Council’s behalf, telling him his application had been unsuccessful. It said the relevant criteria specified by the Department of Transport were:

“..a qualifying “permanent and substantial disability that causes inability to walk or very considerable difficulty in walking”. Applicants will need to present with a substantial level of mobility impairment and a significant degree of difficulty/inability to mobilise indoors and /or outdoors to qualify for a Blue Badge”

20. AI referred to “the attached assessment summary” which it said outlined why he was not eligible for a Blue Badge. It also referred to excerpts from the Council’s Eligibility Policy including:

“Provided that an applicant has a permanent and substantial disability, a local authority’s eligibility decision should be based on whether they are unable to walk or have very considerable difficulty walking, not on the presence or absence of any particular diagnosis or condition”

And concluded:

“Unfortunately at this time the degree of your mobility impairment is not to a qualifying level for a Blue Badge”

21. Mr X appealed. AI reviewed his appeal and recorded the following summary of the decision to decline the appeal:

“……The Assessor observed and recorded that the Applicant was able to walk adequately for over 80m showing no signs of any substantial and enduring mobility impairment to qualify for the Blue Badge renewal, consequently, the Blue Badge appeal cannot be upheld”

22. AI wrote to Mr X in December 2019 telling him his appeal had been unsuccessful. It said the level of his mobility impairment did not meet the criteria to qualify for a Blue Badge and referred to the “attached appeal summary” outlining why he was not eligible.
23. The letter also told Mr X he could re-apply 9 months from the date of the letter if his circumstances had changed.

Analysis – was there fault by the Council causing injustice?

24. The assessor recorded Mr X’s walking speed as less than 40 metres a minute. The Guidance notes this alone likely indicates very considerable difficulty in walking. The assessor also recorded observations of Mr X walking at an extremely slow pace, with considerable signs of distress, a more consistent level of pain, discomfort, and stiffness. Although the score given by the assessor is below the Council’s minimum for eligibility for a Blue Badge, my view is the assessor’s recorded observations indicate Mr X may have met the Council’s eligibility criteria of “very considerable difficulty walking”.
25. I do not consider the assessor’s summary adequately explains the reasons for declining the application. The assessor raises the issue of the medical evidence not supporting or the cause, or level of pain reported by Mr X. But, in my view, the assessor does not then go on to explain clearly enough why, notwithstanding the extremely slow walking pace and considerable signs of distress observed, the decision was made to decline the application. This is fault by AI for which the Council is responsible.
26. The October 2019 letter declining Mr X’s application said the relevant criteria were “.a qualifying “permanent and substantial disability that causes inability to walk or very considerable difficulty in walking…”.
27. But the DofT eligibility criteria in force from 1 September 2019 replaced the term “permanent” with “enduring” and makes no reference to any “qualifying” disability. The Guidance makes it clear eligibility is not solely determined by any particular diagnosis or condition, but the effect of an enduring or substantial disability on a person’s ability to walk. So I consider the letter included an incorrect summary of the relevant criteria and this is fault for which the Council is responsible.
28. In my view the October 2019 letter also failed to explain properly the reason for declining the application. The letter included the assessment summary (which I consider inadequate for the reasons set out above) and added only that the degree to which Mr X’s mobility was impaired was not to a qualifying level. There was no conclusion on the conflict between the medical evidence and the cause and level of reported pain or the effect of this on Mr X’s eligibility for a Blue Badge. This is fault for which the Council is responsible.
29. I also consider there was fault in the reasoning for the decision to decline the appeal. This wrongly said the assessor recorded Mr X as being able to “walk adequately for over 80m showing no signs of any substantial and enduring mobility impairment”. But the assessor observed and recorded Mr X walking 70 m at an extremely slow pace, with considerable signs of distress, a more consistent level of pain, discomfort, and stiffness. And the reasoning did not deal at all with the issue about the medical evidence and cause or level of reported pain. This is fault for which the Council is responsible.
30. I note the appeal decision letter gave incorrect advice about the Council’s policy for re-applications. This policy says an applicant can apply without waiting nine months, if they have a change of circumstances which affects mobility. I am not aware there has been a change of Mr X’s circumstances affecting his mobility. So I do not consider he has been caused any injustice because of the incorrect information about a re-application.
31. My view is these faults caused Mr X injustice. He was denied the opportunity of having his application for a blue badge properly considered.

Agreed action

32. The Council has now carried out a review of its decision not to grant Mr X a Blue Badge.

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Final decision

33. The Council failed to consider Mr X’s application for a blue badge properly, causing him injustice. It has remedied this injustice by reviewing its decision and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman