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West Sussex County Council (21 004 687)

Category : Adult care services > Transport

Decision : Upheld

Decision date : 11 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to refuse his application to renew his blue badge. The Ombudsman found fault causing injustice because the Council failed to properly consider Mr X’s appeal. The Council agreed to arrange a mobility assessment for Mr X.

The complaint

  1. Mr X complained about the Council’s decision to refuse his application to renew his blue badge. He said his disability has not changed so he should still be entitled to a blue badge.
  2. Mr X said he cannot walk far. The Council’s decision makes it difficult for him to go shopping.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  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 following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • Blue Badge Scheme Local Authority Guidance
  2. Mr 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’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.
  2. The DfT 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.
  3. 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.
  4. There are two types of eligibility criteria:
      1. Where a person is eligible without further assessment, they will receive a Blue Badge;
      2. 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.
  5. Applicants who can walk more than 80 metres and do not display very considerable difficulty walking for any other reason, including very considerable psychological distress, or serious risk to themselves or others, would not be eligible. If an applicant is unhappy with the outcome of an assessment, they may ask the council to review the decision.
  6. It is important local authorities ask applicants to provide, at the initial stage, detailed information about their condition and how it causes them to:
    • be unable to walk.
    • experience very considerable difficulty whilst walking, which may include very considerable psychological distress.
    • be at risk of serious harm when walking; or pose, when walking, a risk of serious harm to any other person. (3.7 Blue Badge Scheme Local Authority Guidance)
  7. Providing this information enables local authorities to make more informed and quicker decisions, especially in circumstances where an applicant is clearly eligible under the automatic criteria, or clearly ineligible for a Blue Badge. Detailed information provided at the point of application can also avoid the need for the applicant to undergo an impartial mobility assessment, or for the local authority team to seek additional expert insight into how the applicant’s condition affects their mobility. (3.8 Blue Badge Scheme Local Authority Guidance)
  8. If it is not self-evident to a local authority, based on the information available to them from the applicant and health or social care practitioners, whether the applicant falls within these descriptors, then a referral should be made to an expert assessor for certification. (4.27 Blue Badge Scheme Local Authority Guidance)
  9. In respect of physical disabilities and/or non-visible (‘hidden’) conditions, only where a local authority cannot satisfy itself that an applicant meets, or does not meet, the eligibility criteria, based on the evidence provided by the applicant would it be expected to appoint an ‘expert assessor’. Most applicants would reasonably 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, therefore it is anticipated that appointing an expert assessor would be by exception. (4.36 Blue Badge Scheme Local Authority Guidance)
  10. An applicant must have an enduring (lasting for at least three years) and substantial disability that means they have, during the course of a journey, very considerable difficulty whilst walking, which may include very considerable psychological distress. (4.45 Blue Badge Scheme Local Authority Guidance)
  11. An applicant’s reported breathlessness may need to be cross-referenced with details of diagnosed medical conditions known to cause breathlessness and any observations of the applicant’s respiratory rate during a mobility assessment. (4.46 Blue Badge Scheme Local Authority Guidance)
  12. 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. (4.52 Blue Badge Scheme Local Authority Guidance)

The Council’s blue badge procedure

  1. The Council asks blue badge applicants to provide:
    • Details of their current blue badge, if they have one.
    • Details of any medication they take, including dosage.
    • Recent medical evidence of their disability.
    • A copy of their award letter for any disability related benefits they receive.
  2. The Council’s procedure warns that applications submitted without supporting documentation are unlikely to be successful.

The Council’s blue badge appeals procedure

  1. Upon receiving an appeal, a manager not directly involved in the original decision will complete a clinical review. This will include any further evidence provided by the applicant.
  2. The review findings will then be checked by a member of the Council’s blue badge strategic client team, to ensure the decision maker followed the correct process.
  3. As part of the appeal, the Council may send an applicant for an independent mobility assessment if they did not originally have one.

What happened

  1. Mr X has a long-term medical condition affecting his mobility. The Council granted him a blue badge in 2018, which expired in June 2021.
  2. Mr X applied to renew his blue badge in April 2021. In his application, Mr X said he suffered from severe Asthma and Chronic obstructive pulmonary disease (COPD). On his mobility, Mr X said he could walk from his home to another house on his street in five minutes.
  3. A Council assessor considered it was “unclear” whether Mr X was eligible. Their notes state Mr X can walk from his home to another house on his street, 175 metres away, and this exceeds the distances set by the DfT. The assessor considered there was a lack of evidence to suggest the severity of the condition Mr X reported.
  4. The Council wrote to Mr X with its decision on 13 April 2021. It said he was not eligible because, while he may have an enduring condition, there is not enough evidence about its severity.
  5. The Council told Mr X he could appeal. It said to review his application and complete a comprehensive assessment, Mr X must provide further medical evidence about his condition and its impact on him.
  6. Mr X wrote to the Council providing his medical records, including copies of hospital letters about his condition, details of previous chest infections, and details of the medication he takes. Mr X told the Council he made a mistake on his application as he can only walk to the house next door in five minutes, not to a house further down the street.
  7. The Council responded to Mr X’s appeal on 16 June. It said the review panel upheld the original decision. Although Asthma and COPD are enduring conditions, the Council said there is not enough supporting evidence to suggest Mr X has severe symptoms significantly limiting the distance he can walk.

Response to enquiries

  1. The Council told me it has a team of assessors, who are healthcare professionals, that recommend outcomes based on their professional medical opinion.
  2. The professional medical opinion of the assessor who assessed Mr X is that he did not show he met the eligibility criteria. That was upheld at appeal.
  3. The Council said it must re-assess people every three years because their mobility may change. Applicants need to provide up-to-date evidence. The Council is not saying the previous grounds no longer apply, but the information Mr X gave this time was not enough, in the assessor’s view, to show eligibility.
  4. The Council said while the assessor recognised Mr X may have a permanent and substantial disability, there was not enough medical evidence provided to support this.
  5. The Council said there was not enough consistency between the medical evidence Mr X gave and his self-reported description about how far he could walk to conclude he walked at an extremely slow pace.
  6. The Council’s occupational therapists considered Mr X’s self-reported issues are not consistent with the presented evidence from his health and social care history. The Council’s view therefore is that Mr X is clearly not eligible, and it would be too burdensome to need further assessment.

Analysis

  1. It is not for me to say whether the Council should have awarded Mr X a Blue Badge. My role is to decide whether the Council followed the DfT guidance and considered relevant information when making its decision.
  2. When Mr X reapplied for a blue badge he only told the Council he suffers from Asthma and COPD, and how far he can walk in five minutes. He did not provide any supporting evidence. The Council therefore refused his application.
  3. Mr X appealed because he considers he is entitled to a blue badge. He provided medical evidence that the same reasons the Council awarded him a blue badge in 2018 still apply.
  4. Mr X’s medical evidence confirms he suffers from Asthma and COPD, that he needs medication to manage those conditions, and that he suffers from breathlessness. However, it does not detail the impact on his ability to walk. The only supporting evidence about that was Mr X’s own account.
  5. The Council accepted Mr X has an enduring condition. Both Asthma and COPD are progressive conditions, but there is not enough evidence the Council properly considered that. Instead the Council gave too much weight to what Mr X said was an error about how far he can walk.
  6. The Council’s desktop assessment considered Mr X could walk 175 metres, exceeding the DfT guidance criteria. In his appeal, Mr X explained he made an error and could walk less than 70 metres in five minutes. Under DfT guidance that would be considered an extremely slow pace and would display very considerable difficulty walking. There is no evidence the Council considered this at the appeal stage.
  7. If a council cannot make a clear decision on whether a person is eligible for a blue badge, it should refer them to an expert assessor.
  8. I note the Council’s appeals procedure states it may arrange an independent mobility assessment if an applicant did not originally have one. It also refers to DfT research which found there was strong support for offering a mobility assessment at the appeal stage if an applicant had not had one earlier.
  9. The Council told me it did not do this, because Mr X was clearly ineligible.
  10. However, on the evidence seen, there was doubt. The Council’s desktop assessment specifically said it was “unclear” whether Mr X met the eligibility criteria. When the Council refused Mr X’s appeal it said there was “not enough supporting professional evidence to suggest any very severe symptoms which are significantly limiting the distance you are able to walk”.
  11. In circumstances where the evidence is unclear, or where the severity of an applicant’s medical condition is not clear, we would expect councils to arrange an expert assessment.
  12. On the evidence seen, the Council failed to properly consider the evidence it had to hand at the appeal stage and there was doubt about Mr X’s eligibility. In those circumstances, I consider the Council was at fault for not arranging an independent mobility assessment. That fault caused Mr X injustice in the form of distress.

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Agreed action

  1. Within four weeks of my final decision, the Council agreed to:
    • Apologise to Mr X for the difficulty he experienced trying to demonstrate his eligibility.
    • Undertake a mobility assessment for Mr X with a different assessor.

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Final decision

  1. I have completed my investigation. The Ombudsman found there was fault causing injustice because the Council failed to properly consider Mr X’s appeal. The Council agreed to arrange a mobility assessment for Mr X.

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Investigator's decision on behalf of the Ombudsman

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