Summary: Mrs Y complains about the Council’s failure to properly consider the impact of her hidden disabilities when assessing eligibility for a blue badge. We find fault in the Council’s assessment because it did not comply with the Department for Transport’s guidance. Since making her complaint, Mrs Y has received a blue badge so there is no requirement for the Council to arrange a re-assessment. However, the Council will apologise to Mrs Y for the time and trouble caused and arrange training for officers who make blue badge decisions.

The complaint

1. The complainant, whom I will call Mrs Y, says the Council did not follow the relevant legislation and supporting guidance when assessing her eligibility for a blue badge. In particular, she says the Council has only considered the physical act of walking rather than the impact of her hidden disability, which is of an enduring nature.
2. Mrs Y says she has suffered injustice because the Council has refused to issue a blue badge, which she considers she is entitled to. As a result, Mrs Y says she is prevented from leaving the house which further worsens her anxiety and social isolation.

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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 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. During my investigation, I:
• Contacted Mrs Y to discuss her complaint. I also considered the information she provided;
• Considered Mrs Y’s application for a blue badge, the Council’s refusal letter and the subsequent written appeal and response;
• Consulted the relevant law and guidance around blue badge applications and eligibility criteria; and
• Issued a draft decision and invited comments from Mrs Y and the Council. I received no comments from Mrs Y. The Council responded and I considered their comments before making a final decision.

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What I found

What should happen

6. The Department for Transport (DfT) has issued guidance to councils for providing ‘blue badges’. The Blue Badge scheme entitles drivers or passengers with mobility problems to park nearer to their destination.
7. The DfT updated its guidance in August 2019 to ensure that difficulties experienced by people with non-visible disabilities are considered by councils when determining the eligibility for blue badges. The revisions to the eligibility criteria mean that councils can now consider a person’s difficulty whilst walking, and during the course of a journey, rather than solely their ability to walk or difficulties caused only by the physical act of walking.
8. To qualify for a blue badge, an applicant must be assessed by their council as either ‘eligible without further assessment’, previously known as automatic eligibility, or ‘eligible subject to further assessment’, previously known as discretionary.
9. The guidance says that people may be issued with a badge, following further assessment, if they are:
• “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”
• “in addition, they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person”
10. If the Council cannot determine whether the applicant falls into the category as described above, it can make a referral to an expert assessor for ‘certification’. The Council is not required to seek expert assessment in all cases.
11. If the Council decides not to issue a blue badge, the regulations say it must notify the applicant, in writing, of the reasons for refusal. The DfT ‘strongly recommends’ that every applicant is given a ‘detailed explanation’ of the grounds for refusal. Councils should not simply state in their refusal letter that the applicant did not meet the eligibility criteria.
12. The guidance goes on to say: “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”. When reviewing applications, the Ombudsman expects councils to adhere to our guidance, ‘the Principles of Good Administrative Practice’ which says that councils should keep proper and accurate records and give reasons for their decisions. They should have clear and accessible appeal routes and provide timely advice on how and when to appeal or complain.

What happened

13. Mrs Y applied to the Council in May 2020 for a blue badge. In her application, Mrs Y explained the difficulties she encounters because of her ‘hidden disabilities’, namely Obsessive-Compulsive Disorder (OCD) and severe anxiety. Mrs Y said she needed a blue badge because:
• She is in a constant state of ‘hypervigilance’ and is very vulnerable to her surroundings, making it impossible for her to walk a reasonable distance without overwhelming mental distress and panic.
• Even short walks to and from her car can create ‘triggers’, causing Mrs Y to lose control of her senses and balance. She is a risk to herself and others because she sometimes steps into the road to avoid contaminated pavements. Recently, a car was forced to swerve to avoid hitting her and a cyclist knocked her to the ground.
• She takes anti-depressant medication and is undergoing a second round of Cognitive Behaviour Therapy (CBT) to help overcome her increasing suicidal thoughts resulting from anxiety and social isolation.
• She needs to be able to park close to her GP surgery otherwise she will avoid attending appointments due to the fear of having to walk to and from her car. This is having a wider impact on her health and causing social isolation.
• Her car is a ‘safe place’ free of germs. Mrs Y sometimes needs to retreat to her car quickly if she experiences an anxiety induced panic attack.
14. Mrs Y also submitted a recent letter from her CBT therapist which confirmed her ongoing therapy sessions for her ‘severe’ OCD. The therapist said that Mrs Y has not yet shown any signs of improvement and is experiencing ‘severe low mood and anxiety’. The letter also confirmed that:
• Mrs Y has daily suicidal thoughts
• Mrs Y reports walking into roads without looking and continues to do so, despite therapy
• Mrs Y avoids attending her GP surgery for appointments and to collect prescriptions because she fears not being able to park nearby. Mrs Y therefore runs out of her anti-depressant and anti-anxiety medication.
15. The Council considered Mrs Y’s application. On 4 May 2020 the Council wrote to Mrs Y, confirming that she was not eligible for a blue badge. The Council said: “Based on the information and supporting documentation provided, we believe that you would be able to walk more than 50 metres unaided. This is because you have no problems with walking. As such, your application does not show you as having a permanent or substantial disability which causes you an inability to walk or considerable difficulty in walking”
16. The unsigned letter made no reference to Mrs Y’s specific circumstances or her hidden disabilities.
17. Mrs Y appealed the decision and provided further evidence of her CBT sessions. In her letter, she pointed out that the Council had failed, without good reason, to have regard to the 2019 DfT guidance about hidden disabilities. She said the Council’s assessment of her application was based solely on her physical abilities and showed no consideration of the “considerable psychological distress” and “risk of serious harm” which Mrs Y experiences when walking.
18. Mrs Y also said the Council had misunderstood the eligibility criteria because it said any disability must be permanent, whereas the guidance says it must only be “enduring and substantial”
19. The Council responded on 2 June 2020. The unsigned letter explained the Council had decided not to uphold Mrs Y’s appeal because she needed to contact a consultant or specialist to request a ‘fresh assessment’ of needs to evidence that she has a “permanent and substantial impairment which causes inability to walk or very considerable difficulty in walking”. The Council reiterated the eligibility criteria in its response.
20. Mrs Y wrote to the Council again with another supporting letter from her GP, dated June 2020. Mrs Y told the Council that her therapist is a specialist, and so the evidence provided from the therapist should be treated as such.
21. On 16 June 2020, the Council responded with an unsigned letter. It reiterated some of the same wording as before, stating that, “Based on the evidence provided, you do not qualify, as you do not meet the walking difficulties criteria. Even though your GP has made recommendation [sic], the supporting documents does [sic] not illustrate that you have a long term injury, a permanent and substantial impairment, which causes inability to walk or very considerable difficulty in walking. People with a psychological disorder will not normally qualify unless their impairment causes very considerable and not intermittent difficulty in walking. Your condition can be treated and improved. Your condition shows no physical problems with walking. As such, your application does not show you as having a permanent or substantial disability causes [sic] you an inability to walk or considerable difficulty in walking”
22. In response to my draft decision, the Council explained that since complaining to the Ombudsman Mrs Y has been granted a blue badge. This is because she is now eligible under the ‘Personal Independent Payments' (PIP) criteria.

Was there fault in the Council’s actions causing injustice to Mrs Y?

23. It is not for the Ombudsman to decide whether a person is eligible for a blue badge; that is a matter for the Council to determine. Instead, we look at the procedure followed by the Council when reaching its decision to conclude whether it is in line with any law, guidance, or policies. If we find fault in the decision-making process, we may ask the Council to reconsider its decision. However, this does not always result in the granting of a blue badge.
24. In this case, there is no requirement to request a re-assessment because Mrs Y has recently received a blue badge.
25. After considering the information available to me, I have made a finding of fault causing injustice. This is because:
• The Council’s refusal letter is not sufficiently detailed. It says that Mrs Y does not meet the criteria for a blue badge but does not adequately explain how it reached this decision and how it assessed the supporting evidence Mrs Y provided. I am also concerned the Council appears to use template letters, or large sections of ‘copied and pasted’ information, rather than providing a detailed and individualised response to applications. This goes against the principles of the DfT guidance.
• The Council’s decision focuses only on the physical act of walking. It does not show how it considered Mrs Y’s statement or the supporting evidence about the harm she often causes to herself, and others, when walking alongside roads. Nor does the decision letter show how the Council considered Mrs Y’s point about needing to be close to her car for a ‘safe space’, especially after experiencing a panic attack.
• The Council applied the wrong eligibility test. The old guidance refers to “permanent and substantial disability”, but the 2019 guidance recognises that some hidden disabilities may be enduring but vary, for example in response to treatment. The Council should therefore have considered whether Mrs Y has an “enduring and substantial disability”.
• The Council wrongly concluded that applicants with physiological disorders will “not normally qualify unless their impairment causes very considerable and not intermittent difficulty in walking”. The guidance makes no reference to difficulties being ‘intermittent’ and instead suggests the Council needs to consider difficulties during the whole course of a journey. This includes ‘very considerable’ psychological distress and the risk of harm to the applicant’s self and others.
• The Council’s refusal letter and appeal letter are not signed. This creates doubt about whether the reviewing officer was directly involved in the first decision to refuse Mrs Y’s application. This goes against the principles of open and transparent decision-making.
• The Council’s final response does not refer Mrs Y to the Local Government and Social Care Ombudsman.
26. The Council will remedy the injustice caused by fault with the actions listed in the following section of this statement.

Agreed action

27. Within four weeks of my final decision, the Council will:
• Apologise to Mrs Y for the avoidable time and trouble caused by its failure to properly assess her May 2020 application.
28. Within eight weeks of my final decision, the Council will also:
• Arrange training for its blue badge decision makers regarding the requirements of the DfT guidance, particularly regarding the assessment of those with ‘hidden’ disabilities.
• Remind officers about transparent decision-making; ensuring that decision letters are signed by the officer who made the decision. The Council should also ensure its final response letters include signposting to the LGSCO.

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Final decision

29. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman