Summary: The complainants say the Council failed to properly consider an application for a blue badge under the ‘hidden disability’ criteria. The Council says it followed government guidance and took into consideration the view of a suitably qualified healthcare professional. We find the Council acted without fault.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, complain the Council failed to properly consider their application for a blue badge to help them transport their son, Y. They say this is contrary to the government guidance on hidden disabilities issued in 2019.
2. Mr and Mrs X say the lack of a blue badge places Y at significant risk and has caused him severe distress. Mr and Mrs X want the Council to review its decision, grant a blued badge and improve its understanding and assessment of the impact of autism as a hidden disability.

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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. If 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)
5. 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)

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How I considered this complaint

6. In considering this complaint we have:
• Contacted Mr and Mrs X and studied the information presented with their complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance, and policy;
• Shared with Mr and Mrs X and the Council a draft decision giving them an opportunity to comment. We have considered their comments before making a final decision.

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What I found

Blue Badges

7. The Blue Badge scheme allows people with disabilities to park closer to their destinations.
8. In 2019, the Department for Transport issued revised guidance to councils on how to decide applications for blue badges. The guidance is non-statutory, so councils do not have to adopt it, however they should have very good reasons not to do so. The guidance gives advice on how to assess people with severe mobility problems caused by non-visible (“hidden”) disabilities.

The Guidance

9. The term “expert assessor” allows for a wide range of medical and healthcare professionals to certify eligibility due to non-visible disabilities.  The guidance allows a professional with knowledge of the applicant’s case history to certify their disability.
10. The Guidance says the usual mobility assessment involving an Occupational Therapist may not be suitable for people with ‘hidden’ disabilities. To qualify for a blue badge these applicants need to show they experience ‘very considerable difficulty’ when walking such as psychological distress or pose a risk of serious harm to themselves or others.
11. Where a council cannot decide an application using the applicants’ evidence, the council should appoint an expert assessor.
12. The final decision rests with the council. Councils must consider each application solely on its merits and on application of the scheme’s eligibility criteria.

What happened

13. In November 2019 Mr and Mrs X applied to renew Y’s blue badge. Previously Y met the criteria for an automatic grant because he received the mobility component of the DLA. From 2019 such an application no longer automatically qualified Y for a blue badge.
14. The Council refused the application in December 2019. The Council sent a booklet explaining the new guidance and advising Mr and Mrs X they could re-apply.
15. Mr and Mrs X reapplied asking the Council to consider the application as a ‘subject to further assessment’ application under the hidden disability criteria.
16. Mr and Mrs X provided evidence of Y’s hidden disability from his support worker who is also a qualified clinical psychologist. In January 2020 following discussion of the application with a social worker in the Community Team for People with Learning Difficulties the Council refused the application.
17. In an email dated 5 February 2020 the support worker presented contemporaneous evidence in support of the application addressing the ‘very considerable psychological distress’ eligibility criterion.
18. The Council says the clinical psychologist gave an opinion based on observations of Y when working with him as his support worker. The clinical psychologist had not formally assessed Y as a clinical psychologist.
19. In response to my enquiries the Council said it assessed the application using the Department for Transport’s guidance. It carried out a desk- based assessment. The Council asked a social worker in the Community Team for People with Learning Difficulties to provide their insight because Y had received long-term support from the team. The information from the team did not show any specific concerns about journeys made between a vehicle and a destination. The Council says the evidence shows Y regularly takes walks in the community with Mr X. This suggested to the Council Y had no significant difficulty in walking. However, the social care teams’ comments confirmed that if unaccompanied Y would walk into the road unaware of the hazards. Therefore, any journey needs someone accompanying Y. The social worker said the grant or absence of a blue badge would not affect that.
20. In the Council’s assessment Mr and Mrs X always accompanying Y on journeys is a reasonable and effective coping strategy. The Council says the grant of a blue badge would not further reduce the risk to Y.
21. The support workers’ evidence in the Council’s view shows occasional problems. The Council says that is not enough to meet the eligibility criteria in the guidance. In its view the evidence should show that ‘more often than not’ Y experienced considerable difficulty when walking due to his hidden disabiliity.
22. The Council says it did not need to appoint an expert assessor. The evidence given by the social care professional satisfied the Council that it was self-evident Y’s application did not meet the blue badge criteria. Although Y has diagnosed conditions these do not automatically entitle him to a blue badge.
23. In response to my enquiries the Council explained it took active steps to gather all potential evidence including from the support worker. The Council considered the support worker’s report which reflected their view as a clinical psychologist. However, the Council says it could only place limited reliance on the view expressed. The support worker was not Y’s clinical psychologist. He had not received a referral from Y’s GP or other health professional and so did not have access to all Y’s medical history or records. Therefore, the Council felt unable to see the report as a clinical assessment of Y or coming from an expert who had assessed him with access to all his records. The Council says it applied the guidance on expert assessors. Given the support worker had known the family for several years the Council says it could not consider the evidence as coming from an impartial expert assessor.
24. The Council says it could not give priority to the support worker’s view over that of Y’s social worker who had greater professional contact with Y.
25. Mr and Mrs X say Y has ‘meltdowns’ while walking. Y experiences significant difficulty getting into and out of cars in smaller spaces. This, they say raises the risk to Y and others around him because of his psychological distress. Even after successfully exiting a vehicle or getting into it the psychological impact continues and Y needs managing to reduce the risks posed. Mr and Mrs X believe that without evidence from an expert assessor reflecting the psychological impact on Y’s journeys the Council could not fully consider the impact of his ‘hidden’ disability.

Analysis – was there fault leading to an injustice?

26. Our role is to consider whether the Council followed the correct procedure and gathered and considered all relevant information when deciding Mr and Mrs X’s application for Y’s blue badge. It is not to decide if Y should be awarded a blue badge. If we find the Council acted with fault we must decide if that caused an injustice and what the Council should do to put it right.
27. Government guidance says the purpose of issuing a blue badge is to enable the applicant to undertake journeys the applicant could not otherwise undertake without considerable difficulty or psychological distress.
28. In considering Y’s application the Council must consider if it needs to gather evidence through appointing an expert assessor to decide the issue of psychological distress and risk to the applicant or others.
29. The Council says Y’s support worker’s evidence did not equate to an assessment by a regulated health care professional. The Council considered the report prepared by the support worker. However, it could not give the same weight to that view as it would to a professional appointed by the NHS as Y’s clinical psychologist with access to all Y’s NHS records. Therefore, this in the Council’s view did not represent the view of a healthcare professional. The Council considered the issue of partiality and decided it could not give the support worker’s view greater priority than the view of the social worker.
30. The social worker did not have the support worker’s direct experience of accompanying Y on regular journeys or share the support worker’s expertise in clinical psychology. The Council needed to consider the impact of a possible hidden disability including the psychological distress journeys cause Y. The Guidance allows for healthcare workers associated with the applicant to give information on psychological impact. The Guidance does not require complete professional impartiality when dealing with ‘hidden’ disabilities. That is why the Guidance allows an applicant’s GP to present evidence for example. Therefore, the Council could consider the support worker’s view and decide if that, in all the circumstances, outweighed the view of the social worker.
31. It is not for us to say whether the Council should appoint an expert assessor or treat Y’s support worker as qualifying for the role. The Council has discretion on whether to appoint one to help it decide the application. Our role is to decide if the Council properly considered whether to appoint an expert assessor to decide the impact of Y’s ‘hidden’ disability. In deciding whether it needed to appoint an expert assessor the Council had before it all relevant information. This included the views expressed by the social worker, the support worker (a qualified clinical psychologist) and Mr and Mrs X. Therefore, we find the Council acted without fault in considering the application and whether it needed to appoint a further expert assessor.

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Final decision

32. In completing this investigation, we find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman