The Ombudsman's final decision:
Summary: Mr B complained that the Council unreasonably refused his application for a blue badge. We did not find fault with the actions of the Council.
- Mr B complained that Brighton and Hove City Council (the Council) unreasonably refused his application for a blue badge. He said it did not properly consider the extent of his disabilities and how they affect his ability to walk. It also misrepresented the distance he walked at the face-to-face assessment and failed to consider the fact he uses a mobility scooter most of the time. This has caused and continues to cause him, distress and inconvenience.
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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B 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
Blue Badge Scheme
- 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.
- The DfT issued new guidance to councils in August 2019, to include consideration of ‘hidden disabilities’. It says people may be eligible who ‘experience very considerable difficulty whilst walking, which may include very considerable psychological distress’.
- If a person does not qualify on one of the automatic grounds, the Council has to decide whether they qualify for another reason, including whether they have a permanent and substantial physical or hidden 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 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.
- Mr B has a number of health conditions which he says affect his ability to walk. He says walking for more than two minutes causes him unbearable pain and he uses an electric scooter all the time.
- He applied for a blue badge in March 2021. He enclosed a letter from his doctor who confirmed he had arthritis which causes joint pain and restricts his mobility. He sent a further letter from his doctor which included two more conditions. He also sent a letter from a therapist who confirmed they had treated Mr B for many years for severe joint pain.
- The Council first carried out a telephone assessment. The notes of the telephone assessment say he said he was able to walk short distances of 80 metres at a slow pace but was always in pain when walking. The assessor did not consider he was eligible for the badge as he did not experience very considerable difficulty when walking.
- Given the fact his symptoms were variable the Council invited him to a face-to-face assessment. The notes of the assessment say he had applied for a blue badge to help him to park near to his home, where parking is very difficult. He said his symptoms were variable and he can have flare-ups. That day his pain was worse because he had not slept well.
- The assessor observed that Mr B could walk 140 metres with mild difficulty at a slow pace and with one stop after 70 metres. He walked with an upright posture, normal length stride and a slight limp. His balance and coordination were satisfactory. The assessor observed signs of moderate pain (facial expression and need to stop after 70 metres) and mild breathlessness. But they noted Mr B had been able to hold a conversation during the assessment.
- At the end of May 2021 the Council refused his application saying that while it accepted he had a condition which affected his mobility, it was not currently severe enough to qualify for a blue badge.
- Mr B requested a review in August 2021. He said he had to stop walking after just 8 metres, not 70 metres as noted in the assessment. He said the assessor had underestimated the pain he experienced when walking and disputed that his balance and co-ordination were satisfactory. He said the assessor turned her back on him and pressured him to walk faster than he could. He also mentioned a mental health condition and a physical condition which caused him pain and meant he needed to go to the toilet urgently.
- The Council replied in September 2021 upholding the refusal. In support of its decision, it detailed evidence from Mr B’s application and the two assessments. In respect of the additional condition which required Mr B to use the toilet urgently it said this was not considered by the guidance as it did not impact on an applicant’s ability to walk.
- Mr B complained to us.
- In response to my enquiries the assessor has provided a statement explaining what she did and what she observed and providing her contemporaneous notes. She only noted a stop at the halfway point (70 metres). She noted Mr B assessed his pain at 7/10 whereas she observed a level of 5/10. In respect of the other conditions the Council noted that Mr B did not mention psychological distress on the application form or say how it affected his ability to walk. When requested to provide additional information in respect of how the mental health condition affected his ability to walk, he did not respond.
- I have not identified any fault in the way the Council dealt with Mr B’s application for a blue badge. It considered the information provided in his application, during the telephone assessment and the face-to face assessment. On the basis of these documents, conversations and observations it concluded he did not meet the criteria for a badge because he did not demonstrate he had very considerable difficulty when walking.
- I understand Mr B disputes the assessor’s observations at the face-to-face assessment and insists he stopped at a much earlier point. The Council has provided the assessor’s contemporaneous notes in addition to her report, which adds weight to the assessor’s view. I have no reason to conclude these notes are inaccurate and so I cannot prefer Mr B’s view over that of the assessor.
- I also consider the Council carried out a thorough review asking Mr B to provide information to support his points but concluded he did not meet the criteria for a blue badge. While it is possible to qualify for a blue badge due to severe psychological distress while walking, Mr B did not provide evidence to show he was eligible for this reason.
- I accept Mr B considers the Council’s decision is wrong, but I have not found evidence of fault in the way the decision was made and so I cannot recommend it is changed. I note Mr B can make a fresh application for a blue badge after six months has elapsed from his previous application.
- I have completed my investigation into this complaint as I have not found fault causing injustice in the actions of the Council towards Mr B.
Investigator's decision on behalf of the Ombudsman