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London Borough of Wandsworth (20 011 410)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 20 Aug 2021

The Ombudsman's final decision:

Summary: The Council failed to seek advice from a suitably qualified expert when considering Mr X’s application for a blue badge. This calls into question the reliability of the decision.

The complaint

  1. Mr X complains the Council failed to properly consider her application for a blue badge.

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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. I have:
  • considered the complaint and supporting information submitted by Mr X
  • considered the correspondence between Mr X and the Council, including the Council’s response to the complaint
  • made enquiries of the Council and considered the responses
  • taken account of relevant legislation;
  • offered Mr X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

  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. The DfT updated its guidance in August 2019 to ensure that difficulties experienced by people with non-visible disabilities are considered by councils when determining the eligibility for blue badges. The revisions to the eligibility criteria mean that councils can now consider a person’s difficulty whilst walking, and during the course of a journey, rather than solely their ability to walk or difficulties caused only by the physical act of walking.
  3. To qualify for a blue badge, an applicant must be assessed by their council as either ‘eligible without further assessment’, previously known as automatic eligibility, or ‘eligible subject to further assessment’, previously known as discretionary.
  4. The guidance says that people may be issued with a badge, following further assessment, if they are:
  • “certified by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, experience very considerable difficulty whilst walking, which may include very considerable psychological distress”
  • “in addition, they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person”
  1. If the Council cannot determine whether the applicant falls into the category as described above, it can make a referral to an expert assessor for ‘certification’. The Council is not required to seek expert assessment in all cases.
  2. If the Council decides not to issue a blue badge, the regulations say it must notify the applicant, in writing, of the reasons for refusal. The DfT ‘strongly recommends’ that every applicant is given a ‘detailed explanation’ of the grounds for refusal. Councils should not simply state in their refusal letter that the applicant did not meet the eligibility criteria.

Key facts

  1. Mr X applied for a blue badge in October 2019 and cited his mental health as the reason. He is in receipt of the higher rate care component of PIP and had been awarded 10 points for the PIP mobility component.
  2. Th Council refused Mr X’s application and wrote to him on 26 March 2020 setting out the reasons for its decision. It said the information Mr X submitted had been considered by its expert assessor, an Occupational Therapist, who concluded there was no evidence that showed Mr X experienced considerable difficulty when walking, which may include very considerable psychological distress or that he was at risk of serious harm when walking; or pose a risk of serious harm to any other person. The assessor concluded Mr X did not meet the relevant criteria for a badge to be issued under the new hidden disability criteria.
  3. Mr X submitted two appeals to the Council, which it rejected. It wrote to Mr X in November 2020 to say its expert assessor had reviewed Mr X’s application again along with supporting information he submitted, but its decision not to issue a blue badge remained unchanged. It went onto say “that the EA is a specialist and has been specifically trained in mobility and to carry out assessments independently on the applicant’s current state of mobility regardless of previous assessments being undertaken. It is also the EA’s responsibility to gain an overall indication of psychological distress when taking a journey/walking, or risk of harm to themselves or others”.

Analysis

  1. It is not the Ombudsman’s role to decide if Mr X is entitled to a blue badge, that is the Council’s role, The Ombudsman considers how the Council made the decision and whether it took all relevant information, including the law and guidance, into account.
  2. The DfT Guidance says that in the case of hidden disabilities, there may well be less of a role for an OT but rather the council should seek evidence from an expert assessor. In this case this would be a clinical psychologist. Mr X presented complex reports from a clinical psychologist, but the reports were diagnostic and not designed to comment on eligibility for badge
  3. Therefore, I find the Council decision to be flawed. It decided Mr X was not eligible for a Blue Badge without obtaining advice from a suitably qualified expert, and without due regard to the DfT guidance. This calls into question the reliability of the decision and is an injustice to Mr X.

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Agreed action

  1. The Council should within four weeks of the final decision:
  • provide Mr X with a written apology for the error in assessing his application
  • make a payment of £150 in acknowledgement of the time and trouble he has been put to pursuing the complaint
  • conduct a fresh assessment of Mr X’s application and obtain expert advice from a clinical psychologist
  1. Within eight weeks of the final decision, the Council should:
  • consider training for its blue badge decision makers regarding the requirements of the DfT guidance, particularly regarding the assessment of those with ‘hidden’ disabilities
  • provide evidence of all the above to this office.

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Final decision

  1. The Council failed to seek advice from a suitably qualified expert when considering Mr X’s application for a blue badge. This calls into question the reliability of the decision and is an injustice to Mr X.
  2. The above recommendations are a suitable way to remedy the complaint.
  3. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman

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