Summary: The Council failed to properly consider Mrs X’s medical conditions when assessing her application for a blue badge. It also failed to undertake a mobility assessment.

The complaint

1. Mrs X complains about the way the Council dealt with her application for 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 all the information provided by Mrs X together with the Council’s response to the complaint and information provided by the Council in response to our initial enquiries. Both Mrs X and the Council have had the opportunity to comment on a draft of this document.

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What I found

The Blue Badge scheme

5. The Blue Badge scheme is to help disabled people with severe mobility problems access goods and services by allowing them to park near their destination. The scheme provides parking concessions for blue badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing whether people are eligible for a badge.
6. In 2014 the Department for Transport (DfT) issued guidance (‘the guidance’) to councils for providing blue badges to disabled people with severe mobility problems. The guidance is non-statutory which means that councils are not legally obliged to adopt it. In practice, however, most councils do follow it.
7. The guidance says councils must only issue badges to people who satisfy one or more of the criteria set out in legislation. A person is eligible without further assessment if they receive:

• the higher rate of the mobility component of Disability Living Allowance; or
• eight points or more under the ‘moving around’ activity of the mobility component of Personal Independence Payment.

8. A person is eligible subject to further assessment if they:

• drive a vehicle regularly, have a severe disability in both arms and cannot operate, or have considerable difficulty in operating all or some types of parking metres; or
• have a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking.

9. The guidance says that, where an applicant is eligible subject to further assessment, an independent mobility assessor should undertake a face-to-face assessment of their mobility. The person completing the assessment should have a professional qualification giving them expertise in assessing walking ability. Councils typically employ occupational therapists and physiotherapists to undertake the assessments. The assessor must be independent of the applicant and their treatment and care.
10. The guidance says applicants who can walk more than 80 metres and do not demonstrate very considerable difficulty in walking through any other factors would not be deemed eligible for a badge.
11. Having a certain medical condition does not in itself qualify an applicant for a badge. Rather, it is the effect of the condition or disability on the applicant’s ability to walk that is assessed.
12. The guidance sets out several factors that are relevant in deciding whether an applicant meets the criteria for a blue badge. These include: speed of walking; distance walked; excessive pain; and breathlessness.
13. The guidance recommends a council should have a review mechanism, which preferably does not involve someone directly involved in the original decision. The Council has an appeal process for applicants who are unhappy with its decision.
14. New rules came into force on 30 August 2019. These are designed to make it easier for people with problems that are not exclusively linked to the physical act of walking to qualify for a badge.

Key Facts

15. Mrs X has diagnosed medical issues which affects her ability to regulate her body temperature. Even in relatively mild conditions she can develop hypothermia very quickly when outdoors. She also experiences fatigue and breathlessness. Mrs X also has a diagnosis of Fibromyalgia. This causes pain, which is exacerbated by walking any distance.
16. From 2002, Mrs X received the higher rate mobility component of disability living allowance (DLA). She was therefore entitled to a blue badge.
17. Like all other recipients of DLA, the benefit ended, and Mrs X had to apply for the new benefit PIP, personal independence payment. Mrs X’s application was unsuccessful.
18. Mrs X’s automatic entitlement for a blue badge ended and she submitted a new application to the Council in September 2019.
19. The Council already had information about Mrs X’s medical issues from previous blue badge applications. It undertook a desk-based assessment based on the information in the application form. It concluded Mrs X did not meet the eligibility criteria and wrote to her in October 2020 to inform her of its decision.
20. Mrs X submitted an appeal to the Council and provided additional evidence, including information from her GP. Amongst other information, the GP confirmed, Mrs X’s medical issues were “particularly bad in the cold weather and her exercise tolerance is usually limited to probably 30-40 yards”.
21. The Council’s appeal panel reconsidered the “desk based assessment” and upheld the original decision to refuse a blue badge. It said the “supporting evidence provided was not sufficient to indicate that the applicant meets the criteria in which she has applied under. Applicant has not provided any evidence of pain medication to support her description of being in severe pain when walking”.
22. The Council wrote to Mrs X in January 2020 and to say her appeal had been refused, and the reason for this.
23. Mrs X was dissatisfied and brought her complaint to the Ombudsman.

Analysis

24. It is not my role to decide whether Mrs X is eligible for a blue badge or give a view about the degree to which she meets the relevant criteria. My role is to consider whether the Council followed the correct process in coming to a decision. In this case I find the Council failed to do so.
25. Since Mrs X stopped receiving high rate mobility DLA and her application for PIP was unsuccessful, she is no longer automatically eligible for a blue badge. However, she may still be eligible under the discretionary criteria if she has a permanent and substantial disability causing an inability to walk or very considerable difficulty walking.
26. Those who are not automatically eligible for a badge, may qualify after further assessment.
27. The Guidance says mobility assessments are good practice where decisions on eligibility may be unclear. It says

“… whilst desk-based assessments have a role as a filtering mechanism to identify applicants who are clearly eligible or clearly ineligible for a badge, they cannot be successfully used as the sole means of determining all applicants' eligibility for a badge”.

28. The Guidance says when considering whether someone has very considerable difficulty in walking several factors may be relevant: excessive pain; breathlessness; distance walked; speed; use of walking aids; outdoor walking ability; and whether walking presents a danger to the applicant’s life or would be likely to lead to a serious deterioration in their health, and “If it is not self-evident to a local authority on the basis of the information available to them, from the applicant and health or social care practitioners, whether the applicant falls within these descriptors, then a referral should be made to an expert assessor for certification”.
29. I have seen no evidence the Council properly considered Mrs X’s long standing complex medical issues, the Council should have sought the view of an ‘expert assessor’. It should have also arranged an assessment of Mrs X’s mobility. It did not do so. This is fault.
30. The assessment is flawed.
31. The Council’s fault caused Mrs X an injustice because she was denied the opportunity of having her application for a blue badge properly considered. She has also been put to time and trouble pursuing the complaint.

Agreed action

32. The Council will within four weeks of the final decision:

• apologise to Mrs X for the faults highlighted above, and
• undertake a reassessment of Mr X’s application for a blue badge. It should seek an ‘expert assessors’ view and undertake a mobility assessment

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Final decision

33. The Council failed to properly consider Mrs X’s medical conditions when assessing her application for a blue badge. It also failed to undertake a mobility assessment.
34. The above recommendations are a suitable way to settle the complaint.
35. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman