The Ombudsman's final decision:
Summary: Miss B complained that the Council had failed to properly consider her health conditions and the impact on her ability to walk, when refusing her application for a blue badge. We found fault in the way the Council considered her application. The Council has agreed to invite a new application and reconsider the information Miss B provides using an assessor with knowledge of her condition.
- Miss B complains that Sheffield City Council (the Council) has failed to properly consider the full extent of her health conditions which impact on her physical ability to walk and cause her significant psychological distress. She has been caused distress and frustration by the lack of explanation for the decision, the insensitive attitude displayed towards her and ignorance of her condition by the decision-maker.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Blue Badge Scheme local authority guidance (August 2019)
- This guidance was updated to include consideration of ‘hidden disabilities’. It says people may be eligible who ‘experience very considerable difficulty whilst walking, which may include very considerable psychological distress’.
- This guidance states … that it could be reasonable for local authorities to consider that the frequency with which an applicant experiences very considerable difficulty whilst walking during the course of a journey… should be ‘more often than not’ when determining eligibility for a Blue Badge.
- It also says that local authorities will recognise that professionals involved in the on-going treatment and support of an individual whose experience of non-visible (‘hidden’) disability may qualify them for a Blue Badge are more likely to be familiar with the applicant’s lived- experience of the condition.
- The updated guidance explains that the new expert assessor role (previously carried out by independent mobility assessors) will continue to allow for impartial mobility assessments typically undertaken by occupational therapists and physiotherapists, to help them determine the eligibility of applicants whose difficulty whilst walking relates primarily to physical factors.
- However, it states that these kinds of mobility assessments may be less appropriate for some people with non-visible (‘hidden’) conditions, who may be able to walk, but who experience, during the course of a journey, another very considerable difficulty whilst walking. So, the broadened title of ‘expert assessor’ was intended to enable local authorities to draw upon a wider range of professionals with closer knowledge of the applicant’s case history to certify eligibility when required.
- Miss B has Crohns’ disease, a chronic condition which affects her physically and mentally. One symptom is an urgent and uncontrollable need for the toilet. She can also experience severe pain on walking. Her condition is variable. Some days she can walk without difficulty and then have two weeks of bad days in a row.
- She has a 25-minute walk from her car to her place of work. She works five days a week and experiences severe anxiety about the possibility of soiling herself during this walk.
- In July 2020 Miss B applied for a blue badge to enable her to park close to her place of work. In the application form she described her condition and the symptoms. She said she has frequently soiled herself and had to go home to change. She said a badge would make her less anxious and worried about accidents. She said she uses a stick and takes spare clothes. She said she experiences severe pain in her feet and hips and walking for more than 2 minutes was unbearable. The pain was under investigation and was possibly underlying arthritis linked to the Crohns.
- She provided recent hospital letters detailing a variety of symptoms, including extreme tiredness, opening her bowels up to 20 times a day, and spinal and neurological foot pain. It confirmed medication for pain.
- In August 2020 she had a telephone assessment with an expert assessor (a physiotherapist). The record of the assessment notes her condition, that she is under a specialist and has bowel accidents. However, it says she does not use pads, has not been referred to the continence nurse and is able to get to the toilet on time at work. It notes she is not on anxiety medication and uses CBT methods effectively. She drives alone to work every day and there is no evidence of overwhelming psychological distress. The notes also consider her physical ability to walk: as she could walk a kilometre in 25 minutes the physiotherapist considered she was not eligible for a badge.
- The Council sent a refusal letter detailing the above view of the assessor. It invited Miss B to provide extra evidence from a consultant or specialist.
- In December 2020 her consultant provided a letter which said:
- But the consultant did not complete the section which asked whether or not she met the criteria for a blue badge.
- The Council sent a further refusal letter saying:
The information provided by your Consultant does not state that you meet the criteria set out by the Department of Transport and therefore cannot be used to support your application for a Disabled Person’s Blue Badge.
- Miss B then complained to us.
- The guidance states that professionals involved in ongoing support and treatment are likely to be more familiar with an applicant’s experience of their condition and that frequency of symptoms could also be considered. I do not consider the Council has properly considered this guidance in reaching its decision.
- Miss B has explained she experiences frequent and uncontrollable bouts of diarrhoea which have resulted in her soiling herself and makes her 25-minute walk from her car to work very difficult. This has been confirmed by her specialist consultant with her application (her bowels can open more than 20 times a day) and with her review request (urgent diarrhoea makes a 15-minute walk difficult). It appears self-explanatory why she might experience anxiety when faced with this scenario. She has also explained she can experience severe pain when walking and has provided specialist evidence to support this from her consultant.
- The Council has discounted this specialist evidence on the basis of a telephone call with an assessor (a physiotherapist) with no specialist knowledge of Crohn’s disease. The assessor placed significant weight on the fact Miss B does not use pads, has not seen an incontinence nurse and manages at work, to conclude her symptoms are controlled. Miss B has specifically and repeatedly stated her symptoms are not controlled and has provided specialist evidence in support of this. The assessor did not question Miss B on how far away the toilet is at work, but I do not think it is a comparable distance to the 25-minute walk from her car, so is unlikely to be relevant. The assessor has also not considered the appropriateness or practicalities of suggesting a woman under the age of 40 should wear pads for faecal incontinence. I also note that neither pads nor referral to the incontinence clinic are recommended as treatment for Crohn’s disease by either the NHS or Crohn’s and Colitis UK.
- The assessor said Miss B walks to work five days a week without difficulty. Yet Miss B said to me that her condition is very variable and some days she is fine, but she also experiences flare-ups of her condition which can last for two weeks. There is no evidence from the notes that the assessor questioned Miss B on the variability of her condition or considered the issue of variability in reaching their conclusions.
- The decision reached by the Council does not follow from the evidence provided and it is difficult for Miss B to understand the reasons for it. This is fault which has caused Miss B injustice as she is confused and uncertain about what else she can provide to support her application.
- I asked the Council, within one month of the date of my final decision:
- to invite Miss B to submit a new application along with any other evidence she wishes to provide; and
- on receipt of the information, within a further month, determine the application. If the Council wishes to use an expert assessor, it should ensure they have an understanding of Crohn’s disease.
- I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman