Summary: The Council failed to consider relevant information before refusing to issue a Blue Badge to Mrs X. This is fault. The Council has agreed to apologise, conduct a fresh assessment of Mrs X’s application, and take action to improve its services.

The complaint

1. Mrs X complains the Council failed to properly consider the impact of her health conditions on her mobility before refusing her application for a Blue Badge.
2. As a result, Mrs X says she cannot access the community in all the ways she needs to.

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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. 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)
5. 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

6. I spoke to Mrs X about the complaint.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Mrs 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

10. The Department for Transport’s (DfT) Blue Badge Scheme is to help disabled people with severe mobility problems access goods and services by allowing them or a carer to park near their destination. The scheme provides parking concessions for Blue Badge holders. Local authorities are responsible for the day to day administration and enforcement of the scheme. This includes assessing whether people are eligible for the badge.
11. The DfT issues Guidance to councils for providing Blue Badges to disabled people with severe mobility problems. The guidance says that councils must ensure they only issue badges to residents who satisfy one or more of the criteria set out in legislation. There are two types of eligibility criteria. One is where a person is eligible without further assessment. The other is where the person is eligible subject to further assessment.
12. In 2019, the DfT issued new guidance for councils. The main change from previous guidance was the introduction of assessment criteria to help people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
13. To be eligible for a badge, those people who are eligible subject to further assessment must be more than two years old and fall within one or more of the following descriptions:

• drives a vehicle regularly, has a severe disability in both arms and is unable to operate, or has considerable difficulty in operating, all or some types of parking meter; or
• has been certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to:
1. Be unable to walk;
2. Experience very considerable difficulty whilst walking, which may include very considerable psychological distress; or
3. Be at risk of serious harm when walking; or pose, when walking, a risk of serious harm to any other person. (The Disabled Persons (Badges for Motor Vehicles) Regulations, 4(2)(f))

14. The disability experienced by the applicant must have endured, or be expected to endure, for at least three years.
15. In respect of both physical disabilities and non-visible conditions, where a council cannot reach a view based on the applicants evidence, it would be expected to appoint an expert assessor. (The Blue Badge Scheme Local Authority Guidance, 4.27)
16. If applicants are unhappy with the outcome of an assessment, they may appeal by asking the Council to review the decision.

What happened

17. Mrs X applied for a Blue Badge in August 2020 having recently had surgery on her spine. She has difficulty walking and uses a mobility aid called a rollator.
18. The Council assessed the application in October. It refused the application. In its letter to Mrs X the Council said “your condition does not impact your mobility to the required level to make you eligible under the subject to further assessment criteria.”
19. Mrs X asked for a review of the decision in November. The Council considered the extra information she provided but refused the application. The email to Mrs X does not give any reasons for the decision.

My Findings

20. The Ombudsman cannot question the merits of a decision made without fault. We can consider how the Council made the decision and whether it took all relevant information, including the law and guidance, into account.
21. In refusing Mrs X’s application, the Council decided she did not experience very considerable difficulty whilst walking. It says Mrs X said she could walk the 150 metres from her home to her car and, on occasion, the 700 metres to her nearest supermarket.
22. However, in her application Mrs X said it takes her four minutes to walk the 150 metres to her car. This is a speed of 37.5 metres a minute. The DfT Guidance says anything below 40 metres a minute “is an extremely slow pace which is likely to make walking very difficult”.
23. There is no evidence the Council took this into account before refusing the application. This is fault.
24. The Council also failed to consider whether Mrs X’s pain means she experiences considerable difficulty when walking. In her application, Mrs X said she is “frequently in so much pain that walking for more than 2 minutes is unbearable: every minute hurts when walking”. She provided evidence of the various pain medications she takes. Failure to take this into account is fault.
25. In response to my enquiries, the Council says it did take these factors into account. However, this is not reflected in the record of the assessment or the decision. Although a matter of professional judgement, the record of that judgement must contain sufficient detail to demonstrate that the decision maker took all relevant information into account.
26. Therefore, I find the Council decided Mrs X was not eligible for a Blue Badge without considering relevant information and without due regard to the DfT guidance. This calls into question the reliability of the decision and is an injustice to Mrs X.
27. The Council’s decision letters to Mrs X do not set out the reasons it refused her application. This is fault. Regulation 8(3) of The Disabled Persons (Badges for Motor Vehicles) Regulations says councils must let the applicant know in writing why their application was refused. The DfT Guidance “strongly recommends that every applicant who is refused a badge should be given a detailed explanation of the grounds for refusal.”
28. In response to a draft of this decision, the Council accepted that its decision letters do not give sufficient reasons for the decision and agreed to amend the letter template. However, the Council says it does not consider that this fault affected the outcome in Mrs X’s case.
29. The Council says that Mrs X does not qualify for a Blue Badge because it expects her condition will improve. This is despite Mrs X indicating on her request for a review of the decision that she did not expect to improve.
30. Mrs X says her consultant told her in November 2020 that her existing nerve damage is permanent. She also says she has been discharged from physiotherapy because she has no prospect of improving. Had the Council’s decision explained that anticipated improvement was one of the reasons Mrs X did not qualify for a Blue Badge, Mrs X would have provided additional evidence about the likelihood of her condition improving.
31. By not telling her the basis for its decision, the Council denied Mrs X the opportunity to make an informed review request. This is an injustice to Mrs X.
32. In its decision letter, the Council says to qualify for a Blue Badge, an applicant must have a “permanent and substantial disability”. This is incorrect and is fault. The Regulations were amended in 2019 and now say that a disability must be “enduring and substantial.” The DfT Guidance says “Blue Badges may therefore be awarded to an individual with a disability that is expected to endure in some way for the three-year badge issue period.”
33. Because of this inaccuracy, Mrs X cannot be certain the Council assessed her application against the proper criteria. This is an injustice to Mrs X.

Agreed action

34. To remedy the injustice to Mrs X from the faults I have identified, the Council has agreed to:
• Apologise to Mrs X in writing;
• Pay Mrs X £250; and
• Conduct a fresh assessment of Mrs X’s application with a new assessor. The Council has agreed that the Team Leader will conduct the assessment, with oversight from the Council’s Principal Occupational Therapist.
35. The Council should take this action within four weeks of my final decision.
36. The Council has also agreed to take the following action to improve its services:
• Ensure letters refusing Blue Badge applications contain enough detail for the applicant to understand why their application was unsuccessful.
• Remind relevant staff of the need to consider time and pain as well as distance when assessing an applicant’s ability to walk.
• Remind relevant staff that records of decisions must contain sufficient detail to demonstrate that the relevant DfT guidance and criteria were considered.
• Remind staff that the relevant test is whether a disability is “enduring and substantial” not “permanent and substantial” and amend any templates and internal guidance accordingly.
37. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

38. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman