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London Borough of Merton (20 010 884)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 10 Aug 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to properly assess her application for a blue badge and wrongly determined she was not eligible. There is no evidence of fault in the way the Council assessed Mrs X’s application for a blue badge.

The complaint

  1. The complainant, whom I shall refer to as Mrs X complains the Council failed to properly assess her application for a blue badge and wrongly determined she was not eligible.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mrs X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mrs X;
    • 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

  1. The Department for Transport (DfT) has issued guidance to councils for providing Blue Badges. The Blue Badge scheme entitles drivers or passengers with mobility problems to park nearer to their destination.
  2. To qualify for a Blue Badge, an applicant must be assessed by their council as either automatically 'eligible without further assessment' or 'eligible subject to further assessment'.
  3. Adults who receive Personal Independence Payments (PIP) and are awarded a certain number of points in the appropriate PIP category, are automatically entitled to a Blue Badge without further assessment.
  4. Other people who do not have the necessary points are classed 'eligible subject to further assessment'. This means the council will assess them to decide if they meet the requirements for a Blue Badge.
  5. From 30 August 2019, people with hidden disabilities such as anxiety disorders or brain injuries can apply for a Blue Badge.
  6. It is up to the relevant council to decide if an applicant meets the eligibility criteria for a Blue Badge.
  7. The DfT strongly recommends that councils establish an internal appeals procedure for unsuccessful applicants and clearly signpost this in their decision letters. Councils should also provide unsuccessful applicants with a detailed written explanation.

What happened here

  1. Mrs X applied for a blue badge in August 2020. She had previously had a blue badge following an accident many years ago but had not renewed this once she had recovered. Mrs X stated her health had deteriorated over the last five or six years and she now felt she needed a blue badge again to be able to park near to where she was going. This would not only mean she did not have to walk a long distance but would also help with her anxiety about journeys and parking.
  2. In support of her application, Mrs X provided an undated assessment for disability living allowance, evidence of treatments for post-traumatic stress disorder (PTSD), medical reports from 2015 in relation to injuries sustained in an accident and details of her Personal Independence Payment (PIP). Mrs X received a PIP as she scored 4 points under the moving around activity of the mobility component and 4 points under the planning and following journeys activity.
  3. The Council assessed Mrs X’s application and informed her in December 2020 that she did not meet the qualifying criteria for a blue badge. It confirmed it would only issue a blue badge if she met one of the following conditions:
  • received the higher rate of the mobility component of the Disability Living Allowance
  • received a Personal Independence Payment (scoring of 8 points or more under the ‘moving around’ activity of the mobility component)
  • received the mobility component of PIP and have obtained 10 points specifically for Descriptor E under the ‘planning and following journeys’ activity, on the grounds that you are unable to undertake any journey because it would cause you overwhelming psychological distress
  • you are registered blind (severely sight impaired)
  • receive a War Pensioner’s Mobility Supplement
  • you have received a lump sum benefit within tariff levels 1-8 of the Armed Forces and Reserve Forces (Compensation) Scheme and have been certified as having a permanent and substantial disability which causes inability to walk or very considerable difficulty in walking
  • have an enduring and substantial disability that prevents you from walking, or makes walking very difficult
  • drive a motor vehicle regularly, have a severe disability in both arms, and are unable to operate all or some types of parking meters, or would find it very difficult to operate them
  • experience considerable difficulty whilst walking which may include considerable psychological distress (hidden disabilities)
  • are at serious risk of harm when walking or pose, when walking, a risk of serious harm to any other person (hidden disabilities)
  1. The Council did not consider there was sufficient evidence that either Mrs X’s ability to mobilise or her mental health were severely impaired to the required level to issue a blue badge.
  2. Mrs X did not agree with the Council’s decision. She requested a review and provided copies of her medical records. The Council reviewed Mrs X’s application and upheld its decision not to issue a blue badge. It stated there was no evidence Mrs X automatically qualified and there was no reason to award a blue badge on discretionary grounds. It would normally have referred her application to an independent mobility assessment. Unfortunately, this could not happen due to the COVID-19 lockdown.
  3. The Council stated that to be eligible applicants must demonstrate 'inability or very considerable difficulty' walking due to excessive discomfort, that is, pain, breathlessness or other factors affecting balance, movement, or posture. Applicants would be eligible if they were unable to walk more than 30m in total. Applicants were likely to be eligible if they could walk between 30-80m without discomfort but there were other factors such as very slow pace, reduced balance, and standing.
  4. Having reviewed Mrs X’s paperwork, the Council was not satisfied she would fall into any of the qualifying criteria. It recognised Mrs X had a disability/ mobility issue but did not consider the severity was so bad as to meet the qualifying criteria. In reaching this decision the Council noted a lack of evidence of any medication to control Mrs X’s arthritis, limited reference to her fibromyalgia, and a consultant’s report which stated she could walk in excess of 60 metres per minute. It also noted that some of the evidence related to injuries she had sustained, rather than disabilities.
  5. Mrs X asked to appeal the decision as she felt the Council had not considered her hidden disabilities. The Council advised there was no further right to review. It also confirmed it had considered Mrs X’s hidden disabilities in both the original decision and the review. The Council did not consider Mrs X’s medical files supported issuing a blue badge based on hidden disabilities. It stated that any PTSD was as a result of the accident and not because she had considerable difficulty walking which may include considerable psychological distress. The Council had not noted any other hidden disabilities.
  6. As Mrs X remains unhappy with the Council’s decision she has asked the Ombudsman to investigate. She states she submitted over 250 pages of medical evidence which clearly demonstrates the amount of pain and difficulties she has had for over a decade. Mrs X states her pain levels vary, but she is in pain all the time. She is also unhappy that the decision did not recognise that in addition to treatment for PTSD, she has also suffered from panic attacks, anxiety and clinical depression for over a decade. Mrs X asserts the Council should have consulted her GP who could have confirmed her medical conditions.
  7. In response to my enquiries the Council has confirmed it no longer holds a copy of Mrs X’s medical evidence as she asked the Council to delete it. The Council has reiterated it refused Mrs X’s original application as there was no evidence she automatically qualified and there was no reason to award a blue badge on discretionary grounds. The Council was not satisfied Mrs X would fall into any of the qualifying criteria.
  8. The Council states assessors and decision makers do not need to be medical or healthcare professionals. It also notes that DfT guidance discourages councils from basing decisions purely on GP statements. The Council states that both officers involved in considering Mrs X’s application have extensive knowledge and experience in applying the blue badge scheme over the last ten years.
  9. The Council states there was an error in the review response. The letter said the Council would normally have referred her application to an independent mobility assessment but unfortunately, this could not happen due to the COVID-19 lockdown. The Council states this was not accurate, and it should have said: it could refer Mrs X’s application to an independent mobility assessor where ambiguity exists.
  10. Although the Council could not make referrals for mobility assessments during the lockdowns, it states that supplementary guidance issued by the DfT during the pandemic allowed councils to award a temporary blue badge. These would be granted for a one year period to allow councils time to return to face to face mobility assessments where there was ambiguity over entitlement. The Council states there was no ambiguity in Mrs X’s case.

Analysis

  1. The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to decide whether Mrs X should have a Blue Badge; that is the Council’s job. We can only consider whether the Council assessed her application correctly. We cannot criticise a council where officers have followed the correct procedures and reached a reasoned decision.
  2. Mrs X does not meet the criteria of being eligible without further assessment. The Council has therefore considered whether she meets the criteria for eligible subject to further assessment. The DfT guidance states that if it is not self-evident whether the applicant meets the criteria, based on the information provided by the applicant and health and social care practitioners, the council should make a referral to an expert assessor (previously an independent mobility assessor).
  3. The guidance states most applicants would be expected to demonstrate a health/ social care history that is consistent with having an enduring and substantial disability that causes them very considerable difficulty when walking between a vehicle and their destination. It anticipates appointing an expert assessor would be by exception.
  4. The Council assessed Mrs X’s application and determined she was not eligible for a blue badge. This was a decision it was entitled to make. Mrs X disagrees with this decision, but there is no evidence of fault in the way it was taken. The Council considered the medical evidence provided in support of her application and explained why it did not consider Mrs X met the qualifying criteria. It did not consider there was any ambiguity regarding Mrs X’s entitlement, so it was not necessary to make a referral to an expert assessor, or to issue a temporary blue badge.
  5. We would normally expect the Council to retain the documentation it relied on in reaching its decision for a reasonable period afterwards. However, this was not possible or appropriate in this case as Mrs X asked the Council to delete her medical records.

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Final decision

  1. There is no evidence of fault in the way the Council assessed Mrs X’s application for a blue badge.

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Investigator's decision on behalf of the Ombudsman

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