Summary: The Council was not at fault for its refusal of Mrs B’s blue badge application. It followed correct procedure and considered all the information she provided, so we cannot question its decision. Although occupational therapists may not have been the most suitable assessors for Mrs B’s health conditions, they were not so obviously unsuitable as to raise questions about the soundness of the decision.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that the Council refused her application for a disabled parking permit (a ‘blue badge’). She says it did not assess her application in line with guidance from the Department for Transport (DfT). She says it also failed to properly consider medical evidence she had provided, or her own description of the difficulties she faced with her non-visible (‘hidden’) disabilities.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

4. I considered information from Mrs B and the Council. Both parties 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

What should have happened?

5. The DfT provides non-statutory guidance to councils on how to deal with blue badge applications. Under this guidance there are two type of eligibility criteria: ‘eligible without further assessment’ and ‘eligible subject to further assessment’.
6. Someone who is eligible subject to further assessment must meet one of three criteria. One of these criteria is that they have been certified by an expert assessor as having a disability which causes them considerable difficulty walking.
7. ‘Difficulty walking’ under the guidance includes people with hidden disabilities, for whom problems may occur during a journey, rather than because of the physical act of walking. Such problems may include psychological distress or being at risk of serious harm.
8. ‘Expert assessor’ is a term which can apply to a range of healthcare professionals who can consider an applicant’s hidden disabilities and certify their eligibility. Such an assessor does not have to be completely independent of the applicant: a council can, if necessary, use a professional with knowledge of an applicant’s case history (except their GP).
9. An expert assessor must be someone who, among other things, is qualified to diagnose, treat, or provide specialised therapeutic services for the applicant’s disability.
10. There is a table in the guidance which suggests professionals who may be suitable for assessing different conditions (although it is up to councils to decide whether an assessor is qualified). These include clinical psychologists (for autism), gastroenterologists (for bowel diseases) or neurologists (for mental health conditions).
11. The table suggests that occupational therapists could be suitable for assessing a “Wide range of conditions, most commonly difficulties due to mental health illness, physical or learning difficulties”.

What happened?

Mrs B’s application

12. In August 2020 Mrs B applied for a blue badge. She said she had autism, fibromyalgia, dyspraxia, dyslexia and anxiety. She also said she had a learning disability which means she could not read maps. She provided documents confirming her autism diagnosis and her personal independence payment (PIP) award.
13. The Council referred Mrs B’s application to a private company for an expert assessment. The assessment was conducted by an occupational therapist.
14. The assessment document refers to Mrs B’s conditions and her PIP award. The assessor then considered her ability to take a journey under four criteria:
• Communication skills
• Cognitive ability / memory / hazard awareness
• Behavioural
• Ability to travel independently
15. For the first two criteria the assessor scored Mrs B zero, meaning she has no difficulties. The document says Mrs B “is able to understand simple instructions”, and there is “No evidence of any issues with hazard perception or memory”.
16. For the third criterion the assessor scored Mrs B three, meaning she has regular difficulties. The document says Mrs B has “Anxiety if she is unable to see her wife e.g. in a supermarket. Unable to follow an unfamiliar route without another person”.
17. For the fourth criterion the assessor scored Mrs B one, meaning she has occasional difficulties. The document says this score was based on the information in her PIP award letter.
18. This gave Mrs B a total score of 4. Under the system used by the private company, a score of 0-11 results in an application being declined.
19. The document also has a separate physical mobility section. If an applicant scores 3-5 on this section, they will be referred for a mobility assessment. The assessor scored Mrs B zero, saying this score was based on the information in her PIP award letter.
20. The assessor concluded:

Having carefully considered the application and the PIP award letter there is not any evidence of issues with understanding basic instructions, hazard perception, memory or behavioural challenges … There is not any evidence that [Mrs B] is at risk of serious harm to herself or others when walking or undertaking a journey and although there is reference to anxiety there is not any evidence that this constitutes very considerable psychological distress when walking or undertaking a journey more often than not.

21. The Council wrote to Mrs B and said her application had been unsuccessful.

Mrs B’s appeal

22. Mrs B appealed, and said there had been no consideration of how her autism affected her application. She added that she suffers from stress incontinence and irritable bowel syndrome, which means she needs to park close to public conveniences. She also said she suffers from obsessive compulsive disorder (OCD). She provided medical letters confirming her diagnoses.
23. The Council followed the same procedure for Mrs B’s appeal as it had for her application. The expert assessment was, again, conducted by an occupational therapist.
24. The assessor increased Mrs B’s score for the second criterion of the assessment document (as set out in paragraph 14, above) from zero to one, saying, “At times she may be able to follow written instructions but at other times she may become disorientated and anxious whilst attempting to follow an unfamiliar route”.
25. However, the assessor reduced Mrs B’s score for the third criterion from three to one, saying, “She reports no anxiety when taking public transport or walking, provided that the route is familiar”.
26. With scores for the first and fourth criteria remaining at zero and one respectively, this meant Mrs B’s overall score reduced to three.
27. The assessor concluded:

[Mrs B] is not eligible for a blue badge because … although she has autism and OCD which are enduring and substantial conditions … she reports no difficulties when following a familiar route including taking public transport … [and] she does not have difficulties more often than not as is required by the guidance.

28. The Council wrote to Mrs B and said her appeal had been unsuccessful.

My findings

29. The Council followed the correct procedure in assessing Mrs B’s application and appeal, as set out in the guidance. It referred her application for an expert assessment, considered the evidence she provided, and considered the application under a specific tool designed for people with hidden disabilities – such as Mrs B. It then followed the same process for her appeal. On neither occasion did Mrs B come close to being eligible for a blue badge.
30. There is a question about the Council’s use of expert assessors. The guidance allows for a more specialised assessment of an application, including by a health professional who is familiar with the applicant’s case. This did not happen in
    Mrs B’s case, and occupational therapists conducted both assessments.
31. It is not for me to say who the most appropriate professional would have been in Mrs B’s case. However, using the table set out in the guidance, I can consider whether the choice of an occupational therapist (twice) was so unsuitable that it raises questions about the soundness of the Council’s decision.
32. The difficulty here is that Mrs B did not name a single condition in her application and appeal – she named nine. It is unlikely the Council would have been able to find an assessor who could be considered an ‘expert’ in all these conditions. For example, choosing a clinical psychologist to assess Mrs B’s autism could have meant no expert analysis of her gastrointestinal difficulties.
33. The guidance says occupational therapists can be expert assessors for a wide range of conditions, including mental health or learning difficulties. Although this does not cover all the conditions Mrs B named in her application and appeal, it does cover several of them.
34. Because of this, while occupational therapists may not have been the most suitable professionals to assess Mrs B’s application, I do not have grounds to say the Council was at fault for choosing them. And, as the Council followed correct procedure over the course of Mrs B’s application and appeal, took account of medical information, and explained its reasoning, I have no power to question its decision to refuse Mrs B’s application.
35. For these reasons, I have not found fault with the Council.

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Final decision

36. The Council was not at fault for its refusal of Mrs B’s blue badge application. It followed correct procedure and considered all the information Mrs B provided, so I cannot question its decision.

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Investigator's decision on behalf of the Ombudsman