Summary: Mrs B has complained that the Council did not properly consider her difficulty walking when refusing a Blue Badge. The Ombudsman has found fault in that the Council did not take all relevant factors into account when conducting a telephone assessment and review. However, the Council has since carried out a face-to-face assessment which the Ombudsman considers a suitable remedy for any injustice from the earlier assessments.

The complaint

1. Mrs B complains that, in refusing her a Blue Badge, the Council has failed to properly consider her difficulty walking.

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The Ombudsman’s role and powers

2. 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)
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 have considered Mrs B’s written complaint and supporting papers and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have had regard to government guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and Administrative Background

The Blue Badge Scheme

5. The Department for Transport’s (DfT) Blue Badge Scheme helps people with severe physical mobility problems, or other conditions affecting their mobility, to access goods and services by allowing them or a carer to park near their destination. The scheme gives parking concessions to Blue Badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing applicants’ eligibility for the badge.
6. The DfT issued new guidance (the Guidance) to councils in August 2019, replacing the 2014 guidance: (Blue Badge scheme local authority guidance (England)). The main change was the introduction of assessment criteria for people with severe mobility problems caused by non-visible (“hidden”) disabilities.
7. The Guidance sets out what assessors may wish to consider when assessing a person’s mobility. The Guidance is non-statutory, so councils are not legally obliged to follow it, but most councils do.
8. The Guidance says councils must make sure 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:
• Where a person is eligible without further assessment, they will receive a Blue Badge.
• Where a person is eligible subject to further assessment, they have to fulfil one of two criteria to qualify for a badge. They must:
• drive a vehicle regularly, have a severe disability in both arms and be unable to operate, or have considerable difficulty operating, all or some types of parking meter; or
• have a permanent and substantial physical or hidden disability that causes inability to walk or very considerable difficulty in walking.
9. The Guidance explains that:

“in the context of walking disabilities that are predominantly physical in nature, very considerable difficulty whilst walking is likely to manifest through one or more of the following:

• the level of pain experienced by an individual when they are walking, or as a consequence of walking
• the degree of breathlessness they incur when, or as a result of, walking
• the distance over which an individual is able to walk
• the speed at which an individual is able to walk
• the length of time that an individual is able to walk for
• the manner in which the applicant [walks]
• an applicant’s use of walking aids
• the applicant’s outdoor walking ability
• whether the effort of walking presents a danger to the applicant’s life or would be likely to lead to a serious deterioration in their health…
1. An applicant might also meet this criterion if they experience very considerable psychological distress whilst walking as part of a journey.”
2. In respect of walking speed, the Guidance states:

“applicants who can walk more than 80 metres (87.5 yards) and do not demonstrate very considerable difficulty in walking through any other factors would not be deemed as eligible…

If an applicant cannot walk 40 metres (44 yards) in a minute (a pace of less than 0.67 metres/second), including any stops to rest, then this is an extremely slow pace which is likely to make walking very difficult when considered in isolation…

If an applicant can walk 40 metres (44 yards) in less than a minute (a pace of 0.67 metres/second or more), including any stops to rest, then the speed at which they walk is not likely to make walking very difficult when considered in isolation. The applicant may still be considered eligible if they demonstrate very considerable difficulty walking through any other factors…

12. The Guidance also refers to the manner in which the applicant walks:

“...The applicant’s posture, rhythm, coordination, balance, and stride should be considered in terms of the degree of effect they have on their ability to walk.”

13. Councils usually carry out face-to-face mobility assessments to assess someone’s ability to walk. However, many councils suspended face-to-face assessments, due to COVID-19, and instead carried out telephone assessments.

The Council’s assessment process

14. When the Council receives an application for a Blue Badge, its mobility team first considers whether a person meets the criteria to be “eligible without further assessment”. If not, and if the mobility team is unable to make a decision, it will refer the application to the Council’s independent assessor to consider whether the applicant meets the criteria to be “eligible subject to further assessment”.
15. The independent assessor undertakes assessments using a scoring system which it has developed with regard to the Guidance. The assessor considers the applicant’s information under 5 categories:
• Health/Disability;
• Travel/Transport;
• Mobility;
• Activities of Daily Living; and
• Medication/Discretionary.
16. The assessor score guide assigns a score of between zero and three (zero being no problem, three being major issue/problem/condition etc) to each of the above five categories. Where the scores total 10 points or more this is considered to be “very considerable difficulty walking” and a blue badge is awarded.
17. The Council has explained that its independent assessor does not make available the reference document on which it bases its scoring. This is both because it is considered commercially sensitive and because publication could potentially influence an applicant’s responses and lead to abuse of the Blue Badge Scheme. However, the Council considers its assessment scheme to be robust and it is based on and has been marked against other local authorities.
18. The Council has explained that the scoring system is one factor in the decision-making. However, there can be scenarios where an applicant scores under 10 but other factors such as a person’s age and stability may mean that a badge is still awarded.
19. The Council has explained that if an application is turned down, the applicant may request a review of the decision. However, the review would only look at new medical evidence or whether a mistake was made in the original decision. Where an applicant is unsuccessful, they may re-apply after 12 months.

What happened

20. Mrs B has significant mobility problems following a fall in 2013. She has arthritis, severe tissue scarring and damage to her ankle, and bone spurs which have required multiple surgeries. The damage to her ankle affects her mobility, the movement in her ankle and causes her significant pain.
21. In January 2021, Mrs B applied for a Blue Badge. She provided copies of letters from her consultant orthopaedic surgeon regarding her condition. She explained in her application that she could walk to the end of her road on a good day, and that this took around 10 minutes.
22. Mrs B was not considered eligible under the automatic criteria, so the Council referred her application to its independent assessor. Due to the COVID-19 pandemic, the Council was not conducting face-to-face assessments, so the assessor conducted a telephone assessment with Mrs B.
23. The assessment involved completing a form including: Mrs B’s personal circumstances; travel arrangements; medical situation and medication; any services and disability-related equipment used; the impact on Mrs B’s daily living; any history of falls; psychological impact; and risk of serious harm. Mrs B said she could walk for 20 minutes on a good day and for 10 minutes on a bad day.
24. The assessor awarded a score of seven points to Mrs B’s application, which did not meet the 10-point threshold for a Blue Badge. The Council therefore wrote to Mrs B to explain that her application had been unsuccessful.
25. Mrs B appealed the decision. She also obtained a letter from her consultant explaining that her ankle condition was unlikely to improve significantly in the near future, and that she may require and ankle fusion or replacement in the future.
26. She explained that:
• she can currently walk without the need for walking aids but only for about 10 minutes before the pain becomes too much and she needs to rest;
• she gets worried when away from home in case she trips or her leg swells; and
• she will need to have a full ankle replacement or fusion in the future – she wants a Blue Badge to avoid the need for these steps for as long as possible.
27. The Council reviewed Mrs B’s appeal and considered the further evidence. However, it did not consider that the original assessment was flawed or that there was fresh evidence to warrant changing the decision. It again assigned a score of seven points to Mrs B’s application and refused her appeal.
28. Mrs B complained to the Ombudsman. During the course of the Ombudsman’s investigation, the Council resumed face-to-face assessments. Mrs B was seen for a face-to-face assessment at which her mobility was observed. However, the original decision not to award a badge was upheld. Mrs B is unhappy with the way in which the face-to-face assessment was carried out.

My assessment

Assessment

29. It is clear that Mrs B has significant problems with her ankle which both affects her mobility and causes her pain when walking. However, Mrs B is not unable to walk. It is therefore for the Council to decide whether Mrs B’s condition meets the threshold of “very considerable difficulty in walking”.
30. We would normally expect applicants to have the opportunity to have a face-to-face assessment. In the case of Mrs B’s application, this was not possible due to the COVID-19 pandemic restrictions. Given the prevailing circumstances, I do not consider that the lack of a face-to-face assessment constituted fault.
31. That said, when conducting a telephone assessment, we would still expect the Council to have regard to the Guidance, and any factors indicated in the Guidance which might indicate very considerable difficulty walking.
32. The assessment form and appeal form indicate that the assessor and then the reviewing officer took into consideration the evidence provided in Mrs B’s application, her supporting evidence, the telephone conversation with the assessor and her appeal.
33. However, Mrs B has explained in her application that she can walk to the end of her road, but this may take 10 minutes and that she needs to stop. But there is nothing in the assessment or review to indicate that the assessment took into consideration Mrs B’s walking speed and/or the manner of her walking. I can see no evidence that the Council properly considered these factors when assessing Mrs B’s application. This was fault.
34. Where we have found fault in the way an assessment was conducted which might affect its outcome, we would normally recommend that the Council undertake a fresh assessment. In this case, however, the Council has now undertaken a new face-to-face assessment, so it has already provided the remedy which we would have recommended.
35. I appreciate that Mrs B has concerns about the way that this new assessment has been conducted. However, we would expect the Council to first have the chance to consider and address any concerns that Mrs B may have about this new assessment before the Ombudsman would consider a complaint about this.

Decision letter

36. The Ombudsman would generally expect decisions to contain enough information for applicants to understand why each score has been assigned.
37. The Council has explained why it does not wish to make public the specific details of the scoring system. However, it considers that its decision letters contain enough information for applicants to understand the reasons for a decision, as they list the Blue Badge Criteria and set out for a detailed assessor report. The Council also offers applicants a phone call and/or a copy of the assessment on request to explain the decision.
38. Although the Council’s decision letter does not set out how it has assigned each individual score, on balance, I consider that the decision in this case contains sufficient information to understand the reasons for the decision.

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Final decision

39. I have closed my investigation on the basis that the actions that the Council has already taken represent a suitable remedy for the injustice to Mrs B.

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Investigator's decision on behalf of the Ombudsman