The Ombudsman's final decision:
Summary: Mr F complains about the Council’s decision to refuse his application for a blue badge. Following contact from the Ombudsman the Council reviewed Mr F’s case and has now issued him with a badge. We are satisfied this remedies the injustice he was caused.
- Mr F complains about the Council’s decision to refuse his application for a blue badge. He says as a result he does not have the support he needs, causing him significant distress.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the Council’s response to my enquiries.
- Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The blue badge scheme
- The Department for Transport's (DfT) blue badge scheme entitles drivers or passengers with severe mobility problems to park nearer to their destination by giving parking concessions to blue badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing applicants and deciding if they meet the eligibility criteria for a blue badge. Councils appoint independent expert assessors to help them decide an application.
- Councils must only issue badges to residents who satisfy one or more of the criteria set out in legislation. The criteria include having a permanent and substantial physical disability that causes inability to walk or very considerable difficulty in walking. Applicants who can walk more than 80 metres and do not display very considerable difficulty walking would not be eligible.
- In 2019 the Government introduced new eligibility criteria for people with severe mobility problems caused by non-visible (“hidden”) disabilities. The new criteria extend eligibility to people who “experience very considerable difficulty whilst walking, which may include very considerable psychological distress”. The Council’s website says people who think they may be eligible should apply under these criteria.
- The 2019 government guidance refers to an independent research study in relation to hidden disabilities which says: “individuals who experience especially severe inflammatory bowel disease [and/or] in conjunction with disabling physical impairments…” and “individuals who experience physical impairments in conjunction with conditions such as Chron's Disease … may qualify for a Blue Badge … due to the combined effect of the impairments upon their ability to walk.”
- Councils should provide unsuccessful applicants with a detailed written explanation for the decision. There is no legal right to an appeal if someone disagrees with their application being rejected on the grounds of eligibility. However they may ask the council to review the decision.
- Mr F has health conditions, including Chrons and colitis which cause bowel problems and continence issues. In January 2021 he applied for a blue badge after fracturing his leg. He said the fracture caused him excessive pain and he could only take a few steps with a frame. He also listed his other health conditions.
- The Council referred the application to its expert assessor. The assessor found:
- The fracture was not a permanent condition.
- Mr F could rise and then move for at least 80 metres on the majority of the days.
- He did not use pads for his continence issues.
- There was no evidence of overwhelming psychological distress in relation to travel.
- My role is to consider how the Council carried out its assessment of Mr F’s application; it is not to decide if Mr F is eligible for a blue badge. If I find the Council acted with fault, I must consider the impact that had on Mr F and whether I should recommend a remedy.
- The Council acted in line with its usual practice by referring the application to its expert assessor and then inviting Mr F to provide further information. However it was unclear how the Council had considered the impact of Mr F’s “hidden disability” on his ability to walk and the anxiety it may cause whilst walking.
- The guidance says professionals involved in ongoing support and treatment are likely to be more familiar with an applicant’s experience of their condition and that frequency of symptoms could also be considered.
- The Council initially refused Mr F’s application on the basis of an assessment by a physiotherapist with no specialist knowledge of Crohns or colitis. The assessor noted Mr F does not use pads but neither pads nor referral to an incontinence clinic are recommended as treatment for Crohns by the NHS. Following the consultant’s medical declaration, the Council’s rejection letter did not say how Mr F’s medical conditions and the frequency of his symptoms had been considered. This was fault.
- In response to my enquiries, the Council said Mr F had applied for a blue badge under the mobility criteria, which he did not qualify for. However, it had reviewed the case and considered he may be eligible under the hidden disabilities criteria. It therefore asked Mr F’s consultant to re-submit his declaration under those criteria. As a result Mr F’s application was approved and the Council has issued a blue badge. I am satisfied this remedies any injustice Mr F was caused.
- There was fault by the Council. I am satisfied the actions it has now taken remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman