Peterborough City Council (20 001 375)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 17 Nov 2020

The Ombudsman's final decision:

Summary: There was fault by the Council in failing to seek sufficient evidence, including from an expert assessor, before determining a blue badge application. This casts doubt on the decision reached. The Council will refer Ms X to an expert assessor and reassess her application. The Council will also review its application process to avoid similar problems arising in future.

The complaint

  1. Ms X complains the Council refused her application for a blue badge.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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

  1. I have considered the complaint documentation including the blue badge application and supporting evidence and the Council’s decision and response to Ms X’s appeal.
  2. I have considered the relevant legislation, Regulations and non-statutory guidance.
  3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Blue Badge Scheme

  1. The Blue Badge scheme is to help disabled people with severe mobility problems caused by visible and non-visible (‘hidden’) disabilities to access goods and services by allowing them to park close to their destination. 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 Department for Transport issues non-statutory guidance for local authorities to share good practice (‘The Guidance’). The Department cannot provide authorities with individual legal advice on the interpretation of the Chronically Sick and Disabled Persons Act 1970 (‘The Act’) which governs the Scheme. When such advice is needed Councils should consult their own legal departments.
  3. The Guidance says Councils must ensure badges are only issued to residents who meet one or more of the eligibility criteria set out in the Act.
  4. Applicants may be eligible if they have a qualifying condition or receive a qualifying disability benefit or if they have 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 or
    • experience very considerable difficulty whilst walking, which may include psychological distress and,
    • may be a risk to themselves or others.
  5. Any of the above types of difficulty whilst walking could potentially be caused by a physical disability, or by a non-visible (‘hidden’) disability. The disability experienced by the applicant must endure for at least three years.
  6. The Government extended eligibility for the Scheme to people with ‘hidden’ disabilities in August 2019. The criteria of ‘very considerable difficulty whilst walking’ reflects that, for some people with non-visible disabilities, problems occur when they are walking during the course of a journey, rather than as a direct result of the physical act of walking. The Guidance says that the words ‘very considerable difficulty’ may be understood as suggesting that the purpose of issuing a Badge should be to enable the applicant to undertake journeys that would not otherwise be possible, or which are only possible with very considerable difficulty. The kind of difficulty that may be experienced when walking may be psychological distress rather than a physical inability to walk.
  7. The Guidance says where it is not self-evident that a person meets the criteria on information from the applicant and health or social care practitioners a referral should be made to an expert assessor for certification (paragraph 4.27).
  8. The Guidance provides a table of examples of the disciplines and specialisms of expert assessor Councils may need to draw on to determine eligibility. The table includes gastroenterologists who specialise in Chron’s Disease, Ulcerative Colitis and Inflammatory Bowel Disease. This suggests the Government considers it is possible applicants with these conditions may be eligible for a blue badge.

What happened

  1. Ms X has had ulcerative colitis for over fifteen years and applied for a blue badge in October 2019. Ms X’s application said her condition meant she often needed urgent access to a toilet up to thirty times a day and so:
    • she was a risk to herself (of not making to a toilet in time)
    • she struggled to plan or follow a journey
    • she found it difficult or impossible to control her actions and,
    • she suffered extreme anxiety on journeys (due to not knowing if she could access toilet facilities in time).
  2. The Council acknowledged it could award blue badges where an applicant had considerable difficulty whilst walking, which could include psychological distress. It said councils are instructed only to issue badges when it is clearly beneficial and a journey would not otherwise be possible or would only be possible with very considerable difficulty. The Council said Ms X had provided insufficient evidence demonstrating the impact of her ‘hidden’ disability upon her ability to walk during the course of a journey or the impact on her mobility.
  3. Ms X appealed explaining she had to plan journeys considering where parking and toilet facilities were in conjunction with each other and a blue badge would mean she could park nearer to facilities.
  4. The Council refused to allow the appeal on the basis Ms X had not provided additional evidence which would lead it to overturn the original decision. It provided Ms X with a further form for her to provide to her ‘professional carer’ for them to complete on her behalf, or a tick sheet to complete setting out the category of healthcare and nature of treatment she received. Ms X completed the form stating she did not have a carer and was under the care of a Consultant. At the same time Ms X complained to the Ombudsman.

Analysis

  1. It is not the role of the Ombudsman to decide whether Ms X is eligible for a blue badge or to interpret the extent to which Ms X’s ‘hidden’ disability meets the criteria. We consider whether the Council has followed the correct process in coming to a decision.
  2. The Guidance says that it is important that applicants are asked at the initial application stage for detailed information about their condition and how it causes them to be unable to walk or have considerable difficulty walking, which may include very considerable psychological distress.
  3. Ms X provided some information on the initial form about her medical condition including the details of three healthcare professionals involved in her care and appointment letters. The Council did not contact any of the healthcare professionals.
  4. On receipt of the application the Council had to decide whether Ms X automatically met the criteria (for example because she had a qualifying benefit or medical condition), or, whether her application needed to be considered under the ‘eligibility subject to further assessment’ criteria.
  5. The Council’s application form did not ask for details of qualifying benefits and the Council told us it does not know if Ms X receives a mobility benefit. The Council therefore assessed Ms X’s application under the ‘subject to further assessment’ criteria.
  6. The Council found the information Ms X provided was insufficient for it to reach a decision as to how her ability to undertake a journey was affected. The further form the Council provided to Ms X after her appeal was also unlikely to elicit the detailed information the Council would need to determine her application. In Ms X’s case she simply confirmed, as she had stated previously, she was under the care of a Consultant. The Council was seeking more detailed evidence than this, but this was not apparent from the form.
  7. The Guidance says where it is not self-evident that a person meets the criteria from information provided, a referral should be made to an expert assessor for certification. This did not happen and is fault. The Guidance says a referral to an expert assessor is only not necessary when it is self-evident the applicant does or does not meet the eligibility subject to further assessment criteria. As the Council did not have enough evidence to make a decision a referral should have been made.

Agreed action

  1. As soon as is reasonably practicable, the Council will make a referral to an expert assessor and reassess Ms X’s application, including consideration of all relevant medical information.
  2. Within six weeks of my final decision the Council will review its application process to ensure it seeks sufficient information about benefits and medical conditions at the start of the process.

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Final decision

  1. I have completed my investigation. There was fault by the Council in failing to seek sufficient evidence, including if necessary from an expert assessor, before determining a blue badge application. This casts doubt on the decision reached. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman

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