Summary: Mr X complained about the Council’s decision not to issue him a blue badge. He also said this decision discriminated against him as a disabled person. There was no fault in how the Council considered Mr X’s blue badge application. It also had due regard to its duties under the Equality Act 2010 when considering Mr X’s blue badge application.

The complaint

1. Mr X complains about the Council’s decision from May 2021 not to issue him a blue badge. Specifically, he complains about how the Council decided he was not eligible for a blue badge despite admitting he experiences high levels of anxiety because of his condition.
2. He says the decision not to issue a blue badge means he is anxious about leaving his home and sometimes he struggles to go where he wants to. He additionally says the Council’s decision not to issue him a blue badge discriminates against him as a disabled person.
3. Mr X would like to Council to consider his individual circumstances and re-assess his eligibility for a blue badge.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered the information provided by Mr X and the Council. This included a copy of the Council’s correspondence with Mr X.
7. I referred to the Blue Badge Scheme Local Authority Guidance (England) June 2019 and the Disabled Person’s Parking Badges Act 2013.
8. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Blue Badge scheme

9. The Blue Badge scheme is to help disabled people with severe mobility problems access goods and services by allowing them to park near their destination. The scheme provides parking concessions for blue badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing whether people are eligible for a badge.
10. In 2014 the Department for Transport issued guidance (‘the guidance’) to councils for providing blue badges to disabled people with severe mobility problems. That guidance was updated in 2019. The guidance is non-statutory which means that councils are not legally obliged to adopt it. In practice, however, most councils do follow it. The guidance says councils must only issue badges to people who satisfy one or more of the criteria set out in legislation.
11. A person is eligible without further assessment if they receive:
• the higher rate of the mobility component of Disability Living Allowance; or
• eight points or more under the ‘moving around’ activity of the mobility component of Personal Independence Payment; or
• ten points specifically for Descriptor E under the ‘planning and following journeys’ activity, on the grounds that they cannot undertake any journey because it could cause them overwhelming psychological distress.
12. People eligible after assessment includes those who have been 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; or
• be at risk of serious harm when walking; or pose when walking, a risk of serious harm to another person.
13. The guidance also says that “very considerable difficulty whilst walking” and “serious harm” during the course of a journey are high thresholds that should be applied to all applicants equally, whether their disability is visible or non-visible (‘hidden’).
14. The Council asks applicants to provide proof of entitlement together with their blue badge application. The documents the applicants have to provide depends on which criteria they apply under. For applicants applying under the discretionary criteria for non-visible (hidden) disabilities, the Councils asks proof of the applicant’s disability and how it affects them during the course of a journey.
15. The Council also asks the applicants to provide a mandatory BBNV2 form which must be completed by a social, educational or healthcare professional involved with their care.
16. The applicant can also provide a letter of diagnosis, confirmation of ongoing treatment, clinic attendance or referrals, experience and coping strategies.
17. The Council’s blue badge appeal process explains that as part of a ‘non-visible’ disability appeal the Council may require the applicant to ask a professional regularly involved in their care to fill out a BBNV2 professional form.
18. If the applicant has already supplied a professional form as part of their application prior to the appeal, then the original information provided will be reviewed by an independent member of staff.

Equality Act 2010

19. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
20. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
21. The ‘protected characteristics’ referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief
• sex; and
• sexual orientation.
22. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
23. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

24. Mr X has had a blue badge for the last nine years. In 2019 he applied to the Council to renew his blue badge. The Council sometimes commissions a private company to carry out assessments on its behalf.
25. In August 2019 Mr X complained to the Ombudsman about the Council’s decision to refuse his blue badge renewal application.
26. In October 2019 we closed this complaint and suggested Mr X could reapply for a blue badge under the new regulations that allowed applications under “hidden disabilities”. Mr X did just that.
27. In March 2021 the Council carried out a telephone assessment of Mr X’s disability. The following month the Council conducted a telephone assessment for Mr X’s hidden disability and asked him to provide the BBNV2 form of professional corroboration.
28. In May 2021 Mr X sent his supporting evidence to the Council. This included a letter from his GP, who said that when Mr X struggles to access toilets this results in “significant social, psychological and emotional problems for him”. In the same month Mr X completed a self-assessment form. In it he said that he suffered with depression and took medication daily to manage his incontinence. Mr X said he could not effectively manage his condition and he still soiled himself three to four times per week. Mr X explained that despite being able to follow a similar journey, this is not without difficulties. The Council sent his blue badge application form for assessment to its contractor.
29. The independent expert at the company assessed Mr X’s application and at the end of May 2021 the Council told Mr X it decided he was not eligible for a blue badge. The independent assessor said they decided this because they did not have any evidence to support Mr X experienced difficulties more often than not, or that he experienced very considerable psychological distress. The Council told Mr X that he could reapply in six months, or he could appeal the eligibility decision.
30. In June 2021 Mr X appealed the Council’s decision not to issue him a blue badge. He said that since not having a blue badge his anxiety about travelling had greatly increased. He also said that his heart condition made walking long distances uncomfortable, and his breathlessness had increased over the last two years. In July Mr X provided supporting documents for his appeal. In the same month the independent expert assessor considered Mr X’s appeal.
31. The independent reviewer noted that Mr X had provided another BBNV2 form, which was not part of the consideration during his application in May 2021. The reviewer said that:
• they accepted Mr X experienced considerable anxiety when in public spaces;
• Mr X did not require any assistance when travelling; and
• Mr X did not report any pain, shortness of breath or problems with balance and coordination.
32. The independent reviewer noted Mr X had an enduring condition which meant that he had significant difficulty managing his bowels and incontinence. However they said this did not meet the eligibility criteria for the provision of a blue badge. The reviewer decided that “(…) there was insufficient information to suggest very considerable psychological distress, very considerable difficulty with walking, or serious risk of harm when walking.
33. Mr X complained to the Ombudsman.

Analysis

34. The decisions of the Council’s blue badge assessors are within our remit, but we are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome may have been different.
35. Mr X complained about the Council’s decision not to renew his blue badge because he was not eligible.
36. The guidance requires the Council to provide a detailed written response explaining why it has refused an applicant a blue badge. The Council’s records show it could not decide if Mr X was eligible for a blue badge and enlisted an independent expert assessor.
37. The independent expert assessor rejected Mr X’s application because he did not provide enough medical evidence supporting it. The Council explained why it rejected his application and how to appeal.
38. Mr X provided a letter from his GP who supported his application and said Mr X was experiencing considerable anxiety due to the difficulties in managing his incontinence. The Council explained to Mr X it considered the GP’s letter was not enough evidence of his anxiety to meet the high threshold of “very considerable distress” described in paragraph 13. The Council was entitled to make this decision, and this was not fault.
39. Mr X said the Council’s decision not to issue his blue badge discriminated against him as a disabled person. We consider the Council had due regard to the Equality Act because it considered the impact of its decision on Mr X and gave Mr X an opportunity to challenge that decision.

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Investigator's decision on behalf of the Ombudsman