Summary: Ms B complained about the way in which the Council dealt with her application to renew her blue badge. She does not believe the Council properly considered her condition or the information she provided. We found fault with Council and it has agreed to arrange a mobility assessment for Ms B.

The complaint

1. Ms B complained that Staffordshire County Council (the Council) in respect of her application for a Blue Badge failed to properly consider her difficulty with walking, and failed to give an adequate explanation for discounting her evidence of pain, variability of the condition and the fact she had been awarded a blue badge for the previous 12 years. This has caused her distress, inconvenience and frustration

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The Ombudsman’s role and powers

2. 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)
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 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. Ms B and the organisation 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 Sscheme

5. 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.
6. The guidance says councils must make sure they only issue badges to residents who satisfy one or more of the criteria set out in legislation.
7. There are two types of eligibility criteria:
• where a person is eligible without further assessment, they will receive a Blue Badge;
• where a person is eligible subject to further assessment, they have to fulfil one of two criteria to qualify for a badge. They must:
1. 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
2. have a permanent and substantial physical or hidden disability that causes inability to walk or very considerable difficulty in walking.
8. If it is not self-evident to a local authority on the basis of the information available to them, from the applicant and health or social care practitioners, whether the applicant falls within these descriptors, then a referral should be made to an expert assessor for certification.
9. The applicant will need to show that, as a result of their enduring and substantial disability, they are unable to walk very far without experiencing severe difficulty; and that their inability to walk is affected to the extent that they would be unable to access goods and services unless allowed to park close to shops, public buildings, and other facilities. Several factors may be relevant to determining this including:

Excessive pain reported by the applicant whilst walking

10. Pain is subjective, and some people have higher pain thresholds than others. Consideration may need to be given to cross-referencing an applicant’s reported experience of pain with information they provide about their enduring and substantial disability, details of medication they take, coping strategies they have adopted, and any courses of treatment designed to help them manage their pain.

Distance/speed/manner

11. Applicants who can walk more than 80 metres and do not display very considerable difficulty walking for any other reason would not be eligible.
12. If an applicant cannot walk 40 metres in a minute (a pace of less than 0.67 metres/second), including any stops to rest, then this is an extremely slow pace which is likely to make walking very difficult when considered in isolation.
13. If an applicant can walk 40 metres in less than a minute (a pace of 0.67 metres/second or more), including any stops to rest, then the speed at which they walk is not likely to make walking very difficult when considered in isolation. The applicant may still be considered eligible if they demonstrate very considerable difficulty walking through any other factors.
14. The applicant’s posture, rhythm, coordination, balance, and stride should be considered in terms of the degree of effect they have on their ability to walk.

Variable conditions

15. The guidance says when considering variable conditions affecting an applicant’s ability to walk, the frequency with which an applicant experiences very considerable difficulty whilst walking during the course of a journey, should be ‘more often than not’ when determining eligibility for a Blue Badge.

What happened

16. Ms B has had a chronic congenital knee condition since she was a child. She has had eight operations on her right knee and recent surgery on her left knee as the condition had developed there as well and caused grade 2 arthritis in her left knee.
17. She has had a Blue Badge for the past nine years (in her maiden name). In January 2022 she applied to renew the badge. In her application she said:

‘Every day is different depending on pain threshold and environmental factors such as temperature/weather – cold and damp causes more issues. I can walk from home to the local shop on a good day which would take 15/20 mins. On a bad day I wouldn’t be walking there.’

18. She also said on a bad day she can limp and take small steps but that is not always daily. In terms of pain, she said the level of pain is inconsistent:

‘…some days are horrendous which is excruciating and others more manageable - every day is different. Bone pain, tenderness, swelling, cracking/popping joints/sharp pain. The pain can make me feel sick.’

19. In the section about balance and co-ordination she said that she sometimes loses balance due to the levels of pain and the vulnerability of her knees. She also said in terms of duration she could walk for five to ten minutes.
20. She enclosed a letter from her consultant who said her left knee pain was a sharp pain with an accompanying clicking sensation.
21. In February 2022 the Council refused her claim, saying she did not meet the eligibility criteria. It did not provide any reasons for the decision. Ms B requested a review.
22. In March 2022 the Council upheld its original decision. It said it had considered each aspect of her walking difficulties in isolation and then in combination to reach a holistic decision as to whether they combine to mean she has an enduring and substantial disability which causes her to experience considerable difficulty while walking.
23. It concluded that she did not meet the criteria because her condition was grade 2 which indicated that it causes Ms B constant aches and occasional severe pain. It explained:

‘The constant ache would not meet the threshold of creating a ‘considerable difficulty while walking’. As the severe pain is occasional this would not meet the’ enduring’ part of the criteria.’

24. Ms B then complained to us.
25. In response to my enquiries the Council said it had not carried out a mobility assessment because it had sufficient information from the application to reach a decision that Ms B was clearly not eligible. It said pain is subjective, so the Council had a process for assessing pain based on the pain-relief medication they had been prescribed, and Ms B did not qualify when considering the medication she took.
26. In terms of distance and speed it said based on her own account of a journey she could walk 800 metres in 15 to 20 minutes, which was a slow pace 40 to 53 metres per minute) but it did not indicate considerable difficulty with walking.
27. It accepted it had not provided any reasons for its initial decision and said it had changed its procedures for the future in this respect.
28. Ms B said that she only had grade 2 in her left knee; her right knee was much worse and she had had so much surgery to try and avoid a total knee replacement at her age. She has been prescribed more painkilling medication since the recent operation.

Analysis

29. In its initial decision letter, the Council gave no reasons for why it considered Ms B did not meet the eligibility criteria. This was fault because Ms B could not understand why the decision had been made. I welcome the Council’s acknowledgement of this and its action to improve the procedure in future.
30. In its review decision it said it had adopted a holistic approach, considering each aspect of Ms B’s walking difficulties. However, the decision focussed mainly on its own process for assessing pain: it only considered the prescribed medication and ignored Ms B’s own description and the information from her consultant.
31. I accept that the assessment of pain is subjective but to only take into account four generic descriptors of levels of pain based on medication alone with no reference to any of Ms B’s doctors, seems fairly restrictive and I would not describe it as a holistic approach. It does not take account of the fact that Ms B’s condition is not just arthritis but is the result of a congenital issue, involving a significant amount of surgery with more to come or that there may be reasons why her doctors had not prescribed different or stronger medication on a long-term basis.
32. I also consider the Council has failed to consider the variable nature of Ms B’s condition and has assumed her walking ability is always as she describes on a good day without making any enquiry as to how she often has good days and whether this amounts to good days ‘more often than not’.
33. Neither has the Council considered the manner of her walking even though Ms B says on bad days she limps and has to take small steps. Again, the key unanswered questions here are how often does that occur and how much does this limit her walking ability?
34. Given that Ms B has qualified for the blue badge on three previous occasions, it seems relevant to question whether her condition had improved since the last award. The fact it has now spread to her left knee suggests at least a progression of the condition.
35. Without considering all the points Ms B raised in her application, I do not understand how the Council can have properly reached the view that it was self-evident she did not qualify. This was fault which caused Ms B distress, frustration and difficulty in doing her job as she is no longer able to park near her destination.

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Agreed action

36. In recognition of the injustice caused to Ms B I recommended the Council, within one month of the date of my final decision:
• arranges a mobility assessment by an expert assessor who will consider all the difficulties with walking that Ms B has raised in her application, in particular the variability of the problems, the manner of her walking and the pain she experiences; and
• reminds staff processing blue badge applications of the need to address all the issues raised in an application and explain why it has discounted evidence provided by the applicant.
37. The Council has agreed to my recommendations.

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Final decision

38. I consider this is a proportionate way of putting right the injustice caused to Ms B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman