Summary: Mrs F complains about the Council’s decision to refuse her application for a blue badge. We found no fault in the way the Council made its decision.

The complaint

1. Mrs F complains about the Council’s decision to refuse her application for a blue badge. She says the Council has failed to properly consider her health condition which causes her significant psychological distress whilst walking. This has caused her undue stress and severe anxiety.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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

4. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and the Department for Transport’s Blue Badge scheme local authority guidance (England).
5. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Blue Badge Scheme

6. The Department for Transport’s Blue Badge Scheme helps people with severe physical mobility problems, or other conditions affecting their mobility, to access goods and services. It does this by allowing them, or their carer, to park near their destination. The scheme gives parking concessions to Blue Badge holders. Councils must only issue badges to residents who satisfy one or more of the criteria set out in legislation.
7. 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”. People who think they may be eligible should apply under these criteria.
8. The Government’s guidance sets out two types of eligibility criteria: people who are eligible without further assessment, and people who are eligible subject to further assessment.
9. Those who may be issued with a badge after further assessment may be described as 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 an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, or experience very considerable difficulty whilst walking, which may include very considerable psychological distress.
3. In addition, they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person.
10. To qualify, the person needs to show that, as a result of their disability, they are unable to walk very far without experiencing severe difficulty. 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.
11. The 2019 government guidance refers to an independent research study in relation to non-visible disabilities which, in relation to irritable bowel disease and urgent toileting, says: “individuals who experience … severe inflammatory bowel disease 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 therefore need to be able to make a distinction between severe and less-impactful forms of inflammatory bowel disease.
12. The Council’s blue badge scheme operational instructions say “Medical conditions such as … Crohn’s disease, incontinent conditions … do not in themselves qualify an applicant for a badge. Applicants with these conditions will only qualify if they are in receipt of the higher rate mobility component of the DLA, PIP 8 points or more under descriptor E, or cannot walk or have severe difficulty walking in addition to their condition.”

The Council’s process

13. Councils are responsible for the day-to-day administration and enforcement of the blue badge scheme. This includes assessing applicants’ eligibility for the badge. Councils may appoint independent expert assessors to help them decide an application.
14. The Council’s blue badge scheme operational instructions say if an applicant requires further assessment there will either be a telephone or independent mobility assessment. Applicants must supply as much supporting medical evidence from a doctor or consultant as possible with regard to their disability.
15. 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 if an applicant is unhappy with the outcome of an assessment, they may ask the council to review the decision.

What happened

16. Mrs F applied for a blue badge in December 2021 under the non-visible disability criterion. She said that she had recently been diagnosed with Crohn’s. She was taking medication for pain and was caused faecal distress if she could not access a toilet urgently. Mrs F enclosed a report from the hospital and a letter from her GP which said investigations were ongoing and confirmed she was suffering faecal urgency. There was also a letter from a charity which described the joint pain, fatigue and fear which the condition could cause.
17. The Council’s assessment officer, a registered nurse, assessed Mrs F’s application on 22 February. The case record says that Mrs F had not provided evidence of psychological distress whilst walking. The Council refused Mrs F’s application; its decision letter says she had not provided evidence that she “constantly experiences overwhelming psychological distress whilst walking during the course of journeys.” The letter said that any appeals without supporting up to date medical evidence would not be considered.
18. Mrs F appealed the Council’s decision, enclosing a further letter from her GP which said that urgency caused Mrs F to have overwhelming psychological distress whilst walking if she had not been able to park close to a toilet.
19. The Council did not uphold Mrs F’s appeal and refused her application. Its decision letter of 28 March 2022 said Mrs F had “… applied for toileting issues which I fully appreciate, cause you difficulty parking near to toilets and this in turn results in anxiety, however, under current Department for Transport guidelines, which all Local Authorities must follow when reviewing an application, does not include toileting issues…”.

My findings

20. It is not for me to say whether the Council should have awarded Mrs F a Blue Badge. My role is to decide whether the Council followed the guidance and considered relevant information in how it reached its decision.
21. In this case, the evidence seen shows the Council followed the correct procedure in assessing Mrs F’s application and appeal as set out in the guidance. The Council requested additional information from Mrs F. It referred her application for an expert assessment and considered the supporting evidence Mrs F provided. It did not carry out a face-to-face mobility assessment as Mr F was able to walk.
22. The assessor considered the impact of Mrs F’s non-visible disability on her ability to walk and the anxiety caused by not being able to park close to toilets but found there was no evidence that Mrs F had considerable difficulty or psychological distress whilst walking. The Council upheld this when reviewing its decision after Mrs F appealed.
23. Whilst I appreciate Mrs F suffers psychological distress whilst walking when she has urgency and has been unable to park close to a toilet, the guidance says the person needs to show that they are unable to walk very far without experiencing severe difficulty. The Council has considered this when it assessed Mrs F’s application and appeal and found no evidence Mrs F had difficulty walking.
24. I find the Council’s appeal decision letter is unclear, as the DfT’s guidance does refer to urgent toileting needs and bowel conditions. It says individuals with conditions such as Crohn's may qualify for a Blue Badge if they experience physical impairments which affect their ability to walk.
25. However, I have found no fault by the Council in the way it considered and reached its decision that Mrs F was not eligible for a Blue Badge. This was a decision the Council was entitled to make and the Ombudsman cannot question the merits of a decision which has been properly reached.

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Final decision

26. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman