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London Borough of Bromley (21 007 948)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 23 Feb 2022

The Ombudsman's final decision:

Summary: There is no evidence of fault in the way the Council reached its decision not to award another Blue Badge to Ms X.

The complaint

  1. Ms X (as I shall call the complainant) complains that the Council refused her request for a Blue Badge despite her considerable pain at the assessment and the impact of her hidden disabilities.

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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. I considered the information provided by Ms X and by the Council. Both Ms X and the Council had an opportunity to comment on an earlier draft of this statement and I reviewed their comments before I reached final decision.

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What I found

Relevant law and guidance

  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 issued new guidance to councils in August 2019, replacing the 2014 guidance. The main change was the introduction of assessment criteria for people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
  3. The guidance says, “very considerable difficulty whilst walking reflects that, for some people with non-visible (‘hidden’) disabilities, problems occur when they are walking during the course of a journey, rather than as a direct result of the physical act of walking. This subtle change in wording allows for such problems to be considered as reaching the level of ‘difficulty’ which qualifies them for a Blue Badge, while maintaining eligibility for people whose difficulties are more directly linked to the physical problems they have with walking itself, and/or any pain they experience whilst walking, or as a result of the effort of walking. The words ‘very considerable difficulty’ may be understood as suggesting that the purpose of issuing a Badge should be to enable the applicant to undertake journeys that would not otherwise be possible, or which are only possible with very considerable difficulty.”
  4. 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.
  5. Where a person is eligible subject to further assessment (ie like Ms X they do not qualify automatically for a badge), 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.
  1. 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.

What happened

  1. Ms X has held a Blue Badge for some years. She suffers from a range of symptoms which cause difficulty with mobility. She also has Lupus, a variable condition which she says affects her ability to walk very far; arthritis, and a degenerative knee condition.
  2. Ms X applied to renew her Blue Badge in January 2020. The Council says there was not enough supporting information in her application to enable an automatic renewal so it offered a face to face assessment. Ms X declined as she believed the previous assessor (in 2017) had recommended a permanent entitlement. The Council has provided a copy of the 2017 application which notes it could be “authorised with reassessment at renewal”. The Council says in view of the impact of the Covid 19 pandemic it issued a badge for a further year while it worked with Ms X to achieve an assessment. Ms X complained about the delay.
  3. The Occupational Therapist (OT) says despite a lot of communication with Ms X, it was not possible to reach a decision on her eligibility without a face to face assessment. She says to minimise the impact for Ms X and in view of the pandemic, she arranged for the assessment itself to be conducted outside Ms X’s home. She also conducted a telephone assessment with Ms X to minimise the personal contact.
  4. The OT discussed the impact of Ms X’s hidden disabilities with her during the telephone assessment. Ms X mentioned the impact on her of Lupus (“severe fatigue so has to manage time doing only two small things a day"), her Hypermobility (“No pain but causes stiffness. Tries to readjust her walking but due to pain of other conditions reports that it can affect her balance”); her Rheumatoid Arthritis with inflammatory arthropy (“walking inflames joints whichincreases pain”), her Sacroiliitis (“standing for more than 5 minutes and walking causes shooting and burning pains down legs”) and her Degenerative Condropathy of Right Knee (“Operation on right knee in 2005 to take outhalf of synovial joint – walking bone on bone and has regular fluid build up”) The completed assessment form states “Applicant reported that all aspects of her disability have been covered in this assessment.”
  5. The OT says it was difficult to identify specific difficulties as Ms X’s responses were not always consistent. She says that Ms X was able to say that she managed an average day through compensatory techniques, for example by trading off some activities against others or completing part of activities. Ms X reported she could walk with assistance: “Will walk to the park which is 5-10minutes and is exhausted so usually drives so that she can walk around the park for 5-10 minutes dependent of pain. Walking for longer leaves her in a lot of pain for the rest of the day.”
  6. Another OT conducted the face to face mobility assessment. She recorded: “Observed to stop due to reported pain and holding her back. She reported that she needs to take a break to recover. Observed to mobilise unaided stopped for about 20-30 seconds, no sign of shortness of breath or fatigue observed. (Ms X) reported that it’s not so much the mobilising it’s the after effect. - the distance and the pain that limits her mobility.”
  7. The OT says both assessors discussed the outcomes of the telephone and mobility assessments with another senior OT to ensure they had covered all aspects of Ms X’s mobility difficulties before concluding she did not reach the minimum eligibility criteria.
  8. Ms X appealed against the refusal of the badge.
  9. A review panel met to consider Ms X’s appeal. It upheld the original decision and said there was no new evidence to support a change. It said “Despite your medical conditions causing some difficulties, the evidence that you provided (including the telephone and mobility assessments) confirms that you are currently able to mobilise independently and access the wider community without significant problems. You do not experience considerable psychological distress, high risk of harm to yourself or others, or have a severely limiting physical disability.”
  10. Ms X complained to the Ombudsman. She said the way the Council had treated her during the application process was stressful and distressing. She said in her view the Council had failed to consider the level of pain she experienced when walking and that the removal of the Blue Badge had left her a prisoner in her own home. She disputes the record of the mobility assessment and says the assessor did not record that Ms X had to stop at least 6 times. She says she feels the Council also refused her a badge because she complained about the process.
  11. The Council says despite Ms X having hidden aspects to her mobility, the difficulties that she has are not such that her mobility is so severely affected that she would only manage 50 metres or less.

Analysis

  1. It was not fault on the part of the Council to request a face to face assessment to determine Ms X’s eligibility. Contrary to what Ms X understood from the 2017 assessment, the badge had not been granted permanently by the previous assessor.
  2. The Council took additional measures to facilitate the assessment, both by conducting large parts of it by telephone and by offering Ms X an appointment outside her home. The mobility assessment does record that Ms X had to stop due to “pain and holding her back” and that she said she needed to recover. The record of the telephone assessment includes Ms X’s report of the effects of her hidden disabilities.
  3. The Council conducted the assessment in line with the guidance and specifically considered the impact of the effects of the hidden disabilities.
  4. It is not the role of the Ombudsman to question the merits of the Council’s decision in the absence of fault in the way the decision was reached.

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Final decision

  1. I have completed the investigation as there was no fault in the way the Council reached its decision.

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Investigator's decision on behalf of the Ombudsman

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