Summary: Mr X complains the Council failed to properly assess his application for a Blue Badge. He says the Council’s handling of his application caused him distress and inconvenience. The Ombudsman finds the Council at fault for the way it explained its decision to Mr X and for failing to have an appeals process. To remedy the injustice this caused Mr X, the Council has agreed to apologise and make Mr X a payment for the distress and uncertainty. It has also introduced service improvements, including a Blue Badge review process.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains that the Council:
1. has incorrectly refused his Blue Badge (BB) application;
2. has failed to consider properly his eligibility based on living with a hidden disability;
3. has failed to obtain relevant medical evidence to support his application; and
4. incorrectly advised him to return a valid BB to his previous Council.
2. Mr X says the BB refusal has left him isolated and affected his ability to leave his home or attend medical appointments. He also says the handling of his application has caused him distress and inconvenience, and impacted his mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.
8. I have considered the relevant legislation and statutory guidance, set out below.

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What I found

Blue Badge Scheme guidance

9. The Blue Badge (Disabled Persons’ Parking) Scheme was introduced in 1971 under Section 21 of the Chronically Sick and Disabled Persons Act 1970 (‘the 1970 Act’).
10. The aim of the scheme is to help disabled people with severe mobility problems to access goods and services, by allowing them to park close to their destination. The scheme is open to eligible disabled people irrespective of whether they are travelling as a driver or as a passenger.
11. In August 2019, the Department for Transport issued new Blue Badge scheme local authority guidance (‘the Guidance’). This introduced new eligibility criteria for people with non-visible (‘hidden’) disabilities. The new criteria extends eligibility to people who:

• cannot undertake a journey without there being a risk of serious harm to their health or safety or that of any other person (such as young children with autism);
• cannot undertake a journey without it causing them very considerable psychological distress; and
• have very considerable difficulty when walking (both the physical act and experience of walking).

12. An individual’s eligibility for a Blue Badge is considered in terms of being ‘eligible without further assessment’ (previously known as ‘automatic’) or ‘eligible subject to further assessment’ (previously known as ‘discretionary’).
13. The criteria for being eligible subject to further assessment applies to those who may be described as:

• “a person who drives 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;
• 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. ‘Enduring’ means the disability is expected to last three years as most Blue Badges must be issued for three years; and
• in addition, they may be at risk of serious harm when walking – or pose when walking, a risk of serious harm to another person”.

14. If it is not self-evident to a council based on the information available whether the applicant falls within these descriptors, then a referral should be made to an expert assessor for certification. The Guidance anticipates that appointing an expert assessor would be by exception. This is because most applicants would reasonably be expected to demonstrate a health or social care history that is consistent with having an enduring and substantial disability that causes them very considerable difficulty when walking between a vehicle and their destination.
15. When making its decision on eligibility, 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 extent of the impact experienced by the applicant must be such that it results in ‘very considerable difficulties’ or a ‘risk of serious harm’ to the applicant or other people 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. (paragraph 4.85 of the Guidance)
16. In deciding the severity of the impact, councils may consider how often an applicant experiences the difficulty. The Guidance suggests a reasonable test to apply is whether the difficulty occurs ‘more often than not’. (paragraph 4.86 of the Guidance)
17. A local authority may refuse to issue a Blue Badge if the applicant fails to provide the local authority with adequate evidence of their eligibility, either as an individual or as an eligible organisation. It may also refuse to issue a Blue Badge if the applicant already holds a valid badge issued by another issuing authority. The Guidance recommends councils provide clear and detailed feedback to applicants on the reasons for its refusal.
18. The Guidance strongly recommends councils establish an internal procedure to deal with appeals against an authority’s decision not to issue a badge. It says the process needs to be clear, straightforward, and fair, and not a deterrent to applying for a badge. It says the appeals procedure should be clearly signposted to unsuccessful applicants in their decision letter. (paragraph 6.12 of the Guidance)
19. The Guidance also says the Ombudsman considers that failure to put in place a proper appeal mechanism would likely result in an adverse finding in the event of a complaint being made to them.

What happened

20. In October 2019, Mr X applied to the Council for a Blue Badge (BB) based on having a non-visible (‘hidden’) disability. Due to his mental health conditions, Mr X says he can experience overwhelming psychological distress in places like car parks and shopping centres meaning he needs to be able to return quickly to his car.
21. In December 2019, the Council refused Mr X’s Blue Badge application. It said it did not consider stress and anxiety due to parking a car in a normal bay met the criteria set out in the 2019 Blue Badge scheme local authority guidance (‘the Guidance’). The Council said Mr X could re-apply should his condition change in the future.
22. On the same day, Mr X complained to the Council about its decision. He said he was not happy with the Council’s decision and explained why. He included information about his conditions and medical history that he did not think the Council had sufficiently considered. He complained about the length of time it took the Council to send him its decision and the number of times he had called to chase up a decision.
23. Mr X emailed the Council about its decision letter a few days later. He provided details of his prescribed medication and further information about how his disability affected him when walking to his destination from his car.
24. In January 2020, the Council made a second decision about Mr X’s Blue Badge application. It decided again that Mr X was not eligible for a Blue Badge. The Council considered the medical evidence provided by Mr X in support of his application. The Council decided not to contact Mr X’s GP because it did not think any useful information could be provided, which it considered to be in line with the Guidelines.
25. However, the Council did contact and consider recent evidence from an occupational therapist who Mr X had met on one occasion. It decided there was insufficient evidence from the health professionals supporting Mr X to show that he met the criterion of experiencing very considerable psychological distress more often than not when moving from his car to his destination.
26. The next day, Mr X complained to the Council. He explained why he did not think the Council had correctly applied the eligibility criteria and had failed to adequately assess the medical evidence provided. Mr X said he felt the decision discriminated against him based on his chronic illnesses and disabilities as not having a Blue Badge affected his independence, health and wellbeing.
27. In February 2020, the Council responded to Mr X’s complaint as follows:

• it explained there was insufficient evidence from the health professionals to support a finding that the distress Mr X experienced met the eligibility criteria. The Council invited Mr X to reapply if more information to support his application could be provided;
• it said, in cases where doubt remained as to eligibility, the Guidance stated a badge should not be issued without evidence from an expert assessor. In Mr X’s case, the Council said this expert assessor would be a psychiatrist, but Mr X had not provided details of one who knew him well enough;
• it said the Council did not have an appeals process for Blue Badge applications; and
• in the future, the Council said, in cases such as Mr X’s, it would provide a more detailed decision letter explaining the reasons for the Blue Badge refusal.

Analysis

The Council’s refusal of the complainant’s Blue Badge (BB) application and its consideration of eligibility based on living with a hidden disability

28. Mr X complains the Council incorrectly refused his Blue Badge application and failed to consider properly his eligibility based on the new eligibility criteria for applicants with non-visible disabilities.
29. Based on Mr X’s application, the evidence shows Mr X was given the opportunity to explain how his non-visible disability affects him while walking; identify any strategies used or action taken to improve the journey, and how effectively they work; and he was given the opportunity to provide supporting documents, details of any treatment or medication taken as well as details of relevant healthcare practitioners. I do not find the Council at fault here.
30. In the Council’s two decision letters to Mr X, it provided a brief reason why it had refused his application. However, the reasons for refusing the applications were not sufficiently detailed. For example, the letters did not explain the relevant parts of the Guidance that applied and then explain in detail, with reference to the Guidance, the reasons why it did not consider Mr X eligible. This is fault as the decision letters do not comply with the recommendations contained in the Guidance (see paragraph 17 above).
31. The Council said it recognised Mr X felt the reasons for its decision were not explained clearly and this caused him additional distress and inconvenience. It apologised to Mr X for this and took certain action to ensure this did not happen again in the future (for example, creating a letter template providing more detailed responses to applications and explaining how the decision was reached).
32. The Council provided clearer, more detailed reasons for its refusal in its complaint response to Mr X and in its response to enquiries made by the Ombudsman. It has explained how it applied the Guidance to Mr X’s application and why it did not consider the evidence showed Mr X met the eligibility criteria with specific reference to relevant parts of the Guidance. In line with paragraph four above, we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. In Mr X’s case, I have not found evidence of fault in the way the Council reached its decision so I cannot question its content.
33. The Council has stated, when Mr X applied for a Blue Badge, it did not have an appeals process for Blue Badge applications. It, instead, told Mr X that he could re-apply if his condition changed in the future. This is fault. In line with paragraphs 17 and 18 above, the Guidance strongly recommends councils establish a clear, straightforward, and fair internal appeals procedure that does not deter people from applying for a badge. Councils should signpost this procedure to unsuccessful applicants in their decision letters. Mr X has gone to a great deal of time and trouble trying to establish the reasons why his application was refused. He has experienced frustration and inconvenience associated with not having access to a clear, straightforward appeals process. On balance, it is likely the lack of detailed reasons and the lack of appeals process have affected his ability to understand what additional evidence he could provide that may support his application.

Medical evidence obtained and considered by the Council

34. Mr X complains the Council has failed to obtain relevant medical evidence to support his application and has not properly considered the evidence he has provided.
35. The evidence shows the Council considered the contact details of health professionals provided in Mr X’s application. In relation to the contact details for Mr X’s GP, the Council has explained why it did not contact his GP and made specific reference to the Guidance.
36. The Council did, however, make contact with an occupational therapist through the details Mr X provided. It has explained, due to the occupational therapist’s limited knowledge of Mr X, she was not able to provide sufficient evidence to demonstrate eligibility, but also the evidence that was provided did not support a finding that Mr X was eligible.
37. I understand that Mr X is unhappy with this decision, but this is one the Council is entitled to make. In line with paragraph 17 above, the Council has correctly explained it may refuse to issue a Blue Badge if the applicant fails to provide it with adequate evidence of their eligibility.
38. I do not find fault in the way the Council arrived at this decision and so I cannot question the content of it.
39. However, I do find the Council at fault for failing to explain to Mr X, in both its original decision letters and its complaint response, that not providing sufficient evidence of eligibility was a reason for its refusal. Had the Council informed Mr X of this and it had an established appeals procedure for refusals, this would have given Mr X the opportunity to submit any additional evidence that he thought supported his application.
40. Mr X complained he made several requests to the Council to contact other health professionals, but these were not followed up. The Council said it had no records of these requests. It does accept, however, that calls about Blue Badge applications were not recorded at the time Mr X was likely to have made these requests. This means I am not able to definitively determine which health or social care professionals Mr X requested by phone the Council contact. However, the Council followed up these requests in response to enquiries made by the Ombudsman and did not find any additional evidence to support Mr X’s application.
41. The Council has also explained that July 2018 was the last time Mr X accessed the mental health services he was accessing before moving to the Bracknell Forest area. It decided this was too long ago to provide evidence that supported his application. In line with paragraph 13 above, when assessing whether a disability is ‘enduring’, the Guidance recommends the Council decide whether the evidence supports a finding it is expected to last three years, that is to say for the future duration of the Blue Badge. I, therefore, do not find fault in the Council’s decision here.

Information given by the Council to the complainant about returning a valid BB to his previous Council.

42. Mr X complained the Council incorrectly advised him to return a valid BB to his previous council. He said he missed out on being able to use his previous BB during the application process and up until it expired in July 2020.
43. The Council said it had no record of such a conversation with Mr X, but said this would not be the Council’s usual advice. It does accept, however, that calls about Blue Badge applications were not routinely recorded at the time Mr X said he made contact. This means I am not able to definitively determine what was said during the phone call. In any case, it remains the case that, in line with paragraph 17 above, a council may refuse to issue a Blue Badge if the applicant already holds a valid badge issued by another issuing authority.
44. The Council has confirmed that, as a result of Mr X’s complaint, it will now check whether applicants already have a valid badge.
45. I find the Council at fault in Mr X’s case because it did not provide this as a reason for refusing his application and, had it made the relevant checks on this, Mr X would have been informed much sooner that he could have requested a replacement Blue Badge from his previous council. Much of the time and trouble Mr X had been put to would have been avoided if the Council had checked this ground for refusal when he first applied and advised Mr X sooner. I have factored this into the agreed payment below for the distress and uncertainty Mr X has experienced.

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Agreed action

46. I am satisfied with the service improvements the Council has put in place as a result of this complaint. These include the following:

• all Blue Badge-related communications are now recorded as standard for the Blue Badge service;
• a letter template was created providing more detailed responses to applications;
• a standard leaflet, relevant to the applicant’s particular eligibility, would be sent to all unsuccessful applicants;
• the desktop assessment criteria would include standardised checks on any contact with the applicant recorded in the adult social care information management system and on whether the applicant already had a valid existing Blue Badge; and
• it has introduced a review process that is signposted to applicants in refusal decision letters.

47. Within four weeks of my final decision, the Council has agreed to:

• apologise to Mr X in writing for failing to provide him with detailed reasons for its refusal decisions, and for failing to provide a clear and straightforward appeals procedure; and
• make a payment of £150 to Mr X to recognise the distress, inconvenience and uncertainty caused by the loss of opportunity to properly challenge its decision due to the lack of published review procedure and the failure to provide him with detailed reasons for its refusal decisions, including having an existing valid Blue Badge. This recommended payment is in line with the Ombudsman’s published guidance on remedies.

48. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

49. I have completed my investigation. I find the Council at fault for failing to have a Blue Badge appeal process at the time Mr X applied and failing to provide him with detailed reasons for its refusal decisions. I find that this fault caused injustice to Mr X and the Council has agreed to my recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman