Summary: The Council failed to properly consider Mrs X’s medical condition when assessing her application for a blue badge.

The complaint

1. Mrs X complains about the way the Council dealt with her application for a blue badge.

Back to top

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)

Back to top

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. Mrs X and the Council had an opportunity to comment on a draft of this document.

Back to top

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 is in her fifties. She has a long-standing medical issue which causes faecal urgency/incontinence. She has had numerous operations which have not rectified the issue.
16. Mrs X has had a blue badge for the last three years. The badge expired in September 2020. She applied to the Council for a renewal in August 2020. She explained she needed to park close to a toilet because of her condition. I am unclear if Mrs X provided any supporting information from her GP.
17. The Council refused the application.
18. Mrs X submitted an appeal. She suggested the Council contact a local bowel clinic and two hospitals where she had received treatment.
19. The Council conducted a desk-based review. It refused the appeal and wrote to Mrs X on 11 August 2020 to inform her. It apologised for referring to her condition as irritable bowel in a previous email. It went onto say “we do appreciate that it is not easy to go about your day when out in public due to the Faecal Incontinence, and the need to be near a toilet…Although your condition is not specifically named in the DfT’s guidance, Faecal Incontinence would come under the same umbrella as an irritable bowel disease like condition e.g Crohn’s, Colitis etc”. It said Mrs X did not meet the criteria because “...where you specifically need to park quickly for urgent toileting, does not make you eligible for a badge”. It said it was “not permitted to contact an applicant’s GP or Healthcare Professional due to Data Protection reasons”.
20. Mrs X remained dissatisfied and brough her complaint to the Ombudsman.
21. In its response to initial enquiries from this office the Council provided the following information which it believes supports its decision to refuse Mrs X’s application.

• Irritable Bowel Diseases and urgent toileting
• The Expert Advisory Group suggested that, in many cases, the issue of needing to use a toilet at short notice is unlikely to be ameliorated through the award of a Blue Badge. They advised that many people who experience Irritable Bowel Diseases are likely to have effective coping strategies in place and, aside from periods when their disease is ‘active’, they will generally remain well during periods of remission.

Analysis

22. It is not my role to decide whether Mrs X is eligible for a blue badge or to 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.
23. 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”.
24. I have seen no evidence the Council properly considered the individual nature of Mrs X’s condition. In support of its decision it referred to information in paragraph 21. This information refers to general bowel disease and coping strategies when the disease is active. This does not apply to Mrs X. She does not have bowel disease or active/non active phases. She has an unusual and individual situation related to injury, not disease.
25. The Council should have sought the view of an ‘expert assessor’. It did not do so. This is fault.
26. The assessment is flawed.
27. 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

28. 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, and seek an ‘expert assessors’ view

Back to top

Final decision

29. The Council failed to properly consider Mrs X’s medical condition when assessing her application for a blue badge.
30. The above recommendations are a suitable way to settle the complaint.
31. It is on this basis; the complaint will be closed.

Back to top

Investigator's decision on behalf of the Ombudsman