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West Sussex County Council (21 010 375)

Category : Adult care services > Transport

Decision : Not upheld

Decision date : 28 Feb 2022

The Ombudsman's final decision:

Summary: Mrs H has complained the Council has not awarded her with a Blue Badge despite her disabilities. We have found no evidence of fault by the Council in how it considered Mrs H’s application. This is because the evidence suggests the Council properly considered the eligibility requirements and supporting guidance governing the assessment for issuing a Blue Badge. Absent a finding of fault, we cannot by law question the merits of the Council’s decision to refuse a Blue Badge. That said, the Council has offered to undertake a further review of Mrs H’s application. Further investigation would not lead to a different or improved outcome.

The complaint

  1. The complainant, who I refer to as Mrs H, is making a complaint in relation to West Sussex County Council (the Council) refusing her application for a Blue Badge. She says the Council failed to take account of her disability and the challenges this presents when walking during the course of a journey.
  2. As a desired outcome, Mrs H wants the Council to acknowledge her medical evidence and provide her with a disabled parking badge.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. 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).
  3. 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 have reviewed Mrs H’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents (including medical evidence) and applicable legislation and supporting guidance. I also invited both Mrs H and the Council to comment on a draft of my decision.

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What I found

Background and legislative framework

Blue badge scheme

  1. The Blue Badge (Disabled Persons’ Parking) Scheme was introduced in 1971 under Section 21 of the Chronically Sick and Disabled Persons Act 1970.
  2. The aim of the scheme is to help people with severe mobility problems caused by visible and non-visible (‘hidden’) disabilities to access goods and services, by allowing them to park close to their destination. The scheme is open to eligible people irrespective of whether they are travelling as a driver or as a passenger.
  3. Local authorities are responsible for the day-to-day administration and enforcement of the scheme. They are responsible for determining and implementing administrative, assessment and enforcement procedures which they believe are in accordance with the governing legislation. Whatever the local arrangements, it is important that there is effective communication between the teams that issue Blue Badges and those that conduct on-street enforcement.
  4. It is the responsibility of each local authority to ensure that badges are only issued to residents who satisfy one or more of the eligibility criteria set out in the legislation that governs the scheme. Under no circumstances should anyone who does not satisfy at least one of the criteria receive a badge.

Assessment criteria

  1. The Department for Transport has issued guidance to help local authorities in making a decision about an applicant’s eligibility for a Blue Badge. This can be found here (Guidance Blue Badge Scheme Local Authority Guidance (England)).
  2. An individual’s eligibility for a Blue Badge is considered in terms of being ‘eligible without further assessment’ (previously known as ‘automatic’) or ‘eligible subject to further assessment’ (previously known as ‘discretionary’).
  3. People who may be issued with a badge after further assessment (‘discretionary’) may be described as over the age of two and being one or more of the following:
      1. a person who drives a vehicle regularly, has a severe disability in both arms and is unable to operate, or has considerable difficulty in operating, all, or some types of parking meter; or
      2. a person who has 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.
  4. Eligibility under the Blue Badge scheme criteria should be carefully assessed to maximise the fairness and consistency of badge issue across England. Local authorities should also keep a detailed written record of the procedures used and the outcome of the assessment process.

Chronology of events

  1. Mrs H suffers from a number of complex health conditions which, on the face of it, are likely to be considered a disability for the purposes of the Equality Act 2010.
  2. In early 2021, Mrs H submitted an application to the Council for a Blue Badge. Her application was subsequently assessed by the Council which had regard to the eligibility criteria, government guidance and the need for evidence to support an application. In particular, the Council noted that Mrs H primarily suffers from a hidden disability. However, it evaluated that the existence of this disability alone does not satisfy the requirements to be deemed eligible for a Blue Badge. The Council therefore concluded that it needed to be provided with sufficient clinical evidence to support that there exists "any enduring and substantial disability that causes very considerable psychological distress and/or difficulties when walking.” On that basis, the Council rejected the application, though invited Mrs H to provide evidence which met the identified eligibility criteria.
  3. In mid-2021, Mrs H submitted an appeal against the decision and provided additional medical evidence to support her case. The evidence she submitted included a list of prescribed medications, confirmation she undergoes frequent blood testing and a doctors letter confirming she has difficulties walking when parking. Further, Mrs H provided information relating to her Personal Independence Payment.
  4. In September 2021, the Council wrote to Mrs H to inform her appeal was unsuccessful. The Council acknowledged the disability presented by Mrs H, though felt there remained insufficient evidence of any enduring and substantial disability which causes “considerable difficulty whilst walking”. The Council invited Mrs H to complain to the Ombudsman should she remain dissatisfied.
  5. Subsequently, Mrs H had obtained further medical evidence relating to her disability which does specifically address the eligibility criteria requested by the Council. However, this has only been obtained after Mrs H’s unsuccessful appeal.

My assessment

  1. Importantly, I cannot by law question the merits of the Council’s decision in the absence of fault. This means that regardless of what I make of the decision in terms of being right or wrong, if the Council followed the established procedure and made all material and relevant considerations, I cannot question it by law.
  2. In my view, the Council properly attached the same weight in its assessment to hidden disabilities as it would physical disabilities. I have also seen evidence the Council properly considered the eligibility requirements and supporting guidance governing the assessment of issuing a Blue Badge. In the first instance, it had regard to Mrs H’s medical condition, though noted that in accordance with the eligibility criterion, this was not enough alone to justify issuing a Blue Badge. This is because Mrs H was required to provide evidence that her condition causes her to experience very considerable difficulty whilst walking, which may include very considerable psychological distress. The Council therefore invited Mrs H to submit further information on this point and I consider this both reasonable and justified in the circumstances.
  3. With respect to Mrs H’s appeal and the additional evidence she provided (see Paragraph 17), the Council said there remains insufficient evidence of any enduring and substantial disability which causes “considerable difficulty whilst walking”. I have reviewed the evidence Mrs H submitted and I am inclined to agree with the Council. The evidence does appear to show a disability, though it does not demonstrate this causes Mrs H very considerable difficulty whilst walking. Again, this decision was reached by the Council while having due regard to the eligibility requirements and supporting guidance.
  4. In my view, it may very well be the case that Mrs H is eligible for a Blue Badge. However, she has not provided the Council with the necessary information to form that judgement. The Council followed the correct procedure and I cannot question its decision to not award Mrs H a Blue Badge. That said, Mrs H has subsequently acquired evidence which I do consider relevant to the eligibility criteria. Further, and despite there being no evidence of fault by the Council, it has offered to undertake a further review of Mrs H’s application. The Council has also confirmed it is happy for Mrs H to submit further medical evidence so that this can be fully considered. Had I found fault by the Council (which I have not), this would have been my recommended remedy. Further investigation of the issues therefore would not lead to a different or improved outcome for Mrs H.

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Final decision

  1. The Council properly considered the eligibility requirements and supporting guidance governing the assessment for issuing a Blue Badge. I have not identified any finding of fault by the Council with how it considered Mrs H’s application. Absent a finding of fault, I cannot by law question the merits of the Council’s decision to refuse a Blue Badge. The Council has however offered to undertake a further review of Mrs H’s application. Further investigation would not lead to a different or improved outcome.

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Investigator's decision on behalf of the Ombudsman

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