Summary: Mr D complained the Council failed to properly consider his application for a blue badge under the Department of Transport’s hidden disabilities eligibility criteria guidance. He said the Council did not consider his medical conditions in line with the guidance and as a result he is left without a blue badge. He also complained that the Council did not offer him the right to have its decision on his application reviewed in line with the guidance. We found fault in the way the Council reviewed Mr D’s application for a blue badge. The Council has since issued Mr D with a blue badge and improved so we did not make recommendations.

The complaint

1. The complainant, who I shall refer to as Mr D, complained the Council failed to properly consider his application for a blue badge under the Department of Transport’s hidden disabilities eligibility criteria guidance. He said the Council did not consider his medical conditions in line with the guidance and as a result he is left without a blue badge. He also said the Council did not offer him a right of review in line with the guidance. To put things right Mr D says the Council should review its policy and establish an independent review stage for refused applications. He also wanted the Council to issue him with a blue badge.

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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 have considered information provided by the complainant in writing which includes his blue badge application and supporting information. I have also considered information provided by the Council including its responses to the complainant. All parties have been given an opportunity to respond to a draft of this decision.

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What I found

Law and guidance relevant to this complaint

5. The Blue Badge scheme was introduced by the Chronically Sick and Disabled Persons Act 1970.
6. The Department for Transport (DfT) has issued revised guidance (August 2019) to councils when providing Blue Badges to disabled people with severe mobility problems. The guidance provides a structured functional mobility assessment. The guidance is non-statutory meaning that councils are not legally obliged to adopt it. In practice, however, most councils do follow it.
7. The 2019 guidance replaces the previous guidance issued in 2014.  The main change was the introduction of assessment criteria to help people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
8. It is up to the relevant council to decide if an applicant meets the eligibility criteria for a Blue Badge. Applicants who are refused a Blue Badge may believe that their application has been wrongly refused and wish to query that decision.

DfT recommends that in such situations there should be provision for the dissatisfied applicant’s case to be reviewed by the issuing authority, preferably by someone who was not directly involved in the initial decision.

9. The DfT strongly recommends that councils establish an internal appeals procedure for unsuccessful applicants and clearly signpost this in their decision letters. Councils should also provide unsuccessful applicants with a detailed written explanation.
10. The Council’s Blue Badge Team decides eligibility for a blue badge based on the DfT’s guidance.
11. The Council says its Blue Badge section review procedure for declined applications was updated in February 2020. The process requires three levels of staff with the section to manage the processing of application. Blue Badge Officer, Senior Blue Badge Officer and Team Leader.
• A Blue Badge Officer will complete initial decisions relating to eligibility.
• A Blue Badge Officer or Senior Blue Badge officer who was not involved in an initial decision to refuse an application to complete a review.
• Second review requests / general complaint to be undertaken by the Senior Blue Badge Officer or Team Leader.
• Refusal letters detail reasons for refusal, the applicant’s rights to review and how to discuss the application further.
• Refusal letters on completing a review detail the reasons for refusal, applicant’s rights and signpost how to complain to the Local Authority about the manner a case was handled as well as the right to / how to request the Ombudsman to investigate a case.

Background

12. Mr D applied to the Council for a blue badge in November 2019. The medical conditions listed in his application included chronic fatigue syndrome (CFS), myalgic encephalomyelitis (ME) and fibromyalgia. Mr D referred to acute periods of extreme physical exhaustion including muscular pain and mental distress. He also said he felt unsafe when out in the community and at times had to cancel activities. These factors made travel on public transport almost impossible.
13. Mr D recorded his view of his ability to walk in the application and said, it was difficult to say how far he could walk due to his changeable condition. Under the heading pain description he said, extreme and vastly changeable physical fatigue linked with associated mental distress. Periods of not being able to get out of bed.
14. The Council replied to Mr D in writing in November and confirmed it had considered his application for a blue badge under the DfT’s hidden disabilities criteria. It said, “In order to qualify for a Blue Badge under the Hidden Disabilities criteria you are required to provide adequate proof such as a letter or report from a specialist consultant or assessor, clearly indicating that the individual concerned has an enduring and substantial disability that causes them to experience considerable psychological distress or have no self-awareness of danger when walking.” The Council allowed Mr D 28 days to provide more information to support his application.
15. Mr D replied to the Council and said the following:
• he did not believe the Council had formed an accurate assessment of his application based on the information he had provided;
• he did not have a specialist consultant or assessor but provided the details of the consultant who diagnosed his CFS/ME;
• he was not applying on the grounds of permanent disability and it would be a waste of resources to arrange a mobility assessment;
• his conditions were interlinked and interchangeable which meant he met the criteria under the hidden disabilities’ guidelines; and
• he requested reconsideration of his application.
16. To support his application, Mr D sent the Council a copy of a report from a psychologist. The report confirmed he had been referred to an NHS team that specialised in CFS. He also provided information from his general practitioner.
17. The Council replied to Mr D again in December. It told Mr D his conditions, both in isolation, and in combination with other conditions did not entitle him to a blue badge under the hidden disabilities criteria. It said, it considered the overall impact when walking caused by the effects of multiple conditions. It accepted the evidence he had provided confirmed his health conditions (referred to in its letter). However, it decided all the information he provided did not confirm he suffered from “severe psychological distress which prevented him from being able to walk short distances such as would be expected for a person leaving their home address to a vehicle parked on their street.” The Council concluded Mr D was not eligible for a blue badge and closed his application.
18. Following further correspondence from Mr D expressing his disagreement the Council wrote to him in January 2020 setting out its final review of his blue badge application. It said it had decided to reject his application for a blue badge based on the information he provided. This information did not show his conditions prevented him or caused him to suffer severe difficulty to walk any short distance. It confirmed his application had been closed.

Findings

19. It is not the Ombudsman’s role to decide whether Mr D should have a Blue Badge; that is the Council’s job. Our role is to assess whether the Council made its decision properly.
20. The DfT expects councils to review all the information submitted by a blue badge applicant. The DfT’s guidance says councils should compare all the insights received from across the application form, supplementary information provided by the applicant, and statements from medical and social care professionals familiar with the application which confirm how the applicant’s disability manifests. Councils are then expected to weigh the evidence of risk of harm or difficulty whilst walking during a journey arising from a substantial and enduring non-visible (‘hidden’) disability.
21. The Council considered Mr D’s blue badge application and allowed him to provide more information to support his application. The information he provided confirmed his medical conditions and the statements from health professionals referred to some treatment he had received.
22. When reviewing Mr D’s case, the Council noted some of the effects he experienced because of his conditions such as depression and anxiety. Mr D also recorded the effects of his conditions when submitting his application such as physical fatigue. It is likely, on balance, that because of his health conditions Mr D experiences some difficulty when walking during a journey.
23. The Council’s role is to assess and weigh the evidence of risk of harm or difficulty Mr D has when walking and decide whether this entitles him to a blue badge. The evidence available shows the Council considered the DfT’s guidance and all the information Mr D provided. It documented how it had arrived at its decision in the letters sent to Mr D. The Council decided the effects of the conditions on Mr D’s ability to walk short distances did not entitle him to a blue badge under the hidden disabilities criteria.
24. The Council said Mr D had the opportunity to have his case reviewed. It said it had several conversations with him via phone and email and advised him of his rights to request a review and details of how to complain to the Council and the Ombudsman. The letters the Council sent to Mr D do not contain information setting out his right to have the outcome of his application reviewed.
25. Guidance states councils should ensure there is a clear appeals procedure in place for unsuccessful Blue Badge applicants. Councils should signpost this process in its decision letters. The Council now acknowledges that information detailing an applicant’s right to review, complaint to the Council and Ombudsman was not detailed within the letters it sent to Mr D. This is fault. As a result of the Council’s fault Mr D did not have the opportunity to have his case properly reviewed in line with the DfT’s guidance by someone who was not involved in the initial blue badge eligibility decision.
26. The Council has since acted to improve its procedures as of February 2020. This was after it considered Mr D’s application. Nevertheless, the Council’s updated procedure is more in line with the DfT’s guidance. Therefore, it is not necessary to make a recommendation for service improvement.

Mr D’s reapplication for a blue badge

27. Mr D reapplied for a blue badge in September 2020 under the automatic eligibility criteria. The Council accepted the application and issued him with a blue badge in the same month. The Council previously apologised to Mr D and it is therefore not necessary to make recommendations.

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Final decision

28. I have reconsidered all the information provided and found fault by the Council. Mr D’s injustice been remedied and so I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman