Summary: The Council has implemented its own Blue Badge policy since the time of Ms A’s application. It agrees to reassess her application based on information from her medical professionals in the light of the relevant criteria.

The complaint

1. Ms A (as I shall call her) says the Council’s failure to award a Blue Badge despite the severe impact of her hidden disability has caused her considerable distress, made it very difficult for her to plan journeys and made her loathe to leave her house.

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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 considered the information provided by Ms A and the Council. Both Ms A and the Council commented on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

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. It does this by allowing them, or their 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. Since August 2019 the guidance has included the introduction of assessment criteria for people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
7. The DfT guidance sets out what assessors may wish to consider when assessing a person’s mobility. The guidance is non-statutory. This means councils do not have to follow it, but most councils do. We expect councils to explain if they decide not to follow such guidance.
8. 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.
9. The guidance says about the inclusion of the term ‘very considerable difficulty’ in the revised guidance: “very considerable difficulty whilst walking reflects that, for some people with non-visible (‘hidden’) disabilities, problems occur when they are walking during the course of a journey, rather than as a direct result of the physical act of walking. This subtle change in wording allows for such problems to be considered as reaching the level of ‘difficulty’ which qualifies them for a Blue Badge…. The words ‘very considerable difficulty’ may be understood as suggesting that the purpose of issuing a Badge should be to enable the applicant to undertake journeys that would not otherwise be possible, or which are only possible with very considerable difficulty”.
10. The revised guidance also says, “In considering coping strategies, local authorities should consider whether existing strategies are being adopted and are effective (i.e. they may work, but they may require significant time to be invested on the part of the applicant), and whether a Blue Badge would be an effective ‘coping strategy’ in its own right. Importantly, journey avoidance should not be considered an appropriate coping strategy.”
11. The Council has recently introduced its own Blue Badge policy. The policy says, “The purpose of the desk-based assessment is to determine if an applicant is eligible for a Blue Badge. Where it is not clear, the applicant may be contacted to provide further information, or they may be referred to an expert assessor for a further assessment.” It goes on, “Applicants may be asked to nominate a medical professional known to them to complete and submit the Expert Assessor form before a final decision can be made.” The Council has created a specific questionnaire for bowel incontinence.

What happened

12. Ms A suffered traumatic injuries to her rectum during childbirth over 30 years ago. Her rectal nerves are so damaged that she has no warning of a bowel movement. She has had surgery and advice from a continence advisor and undergone several procedures in an attempt to improve her condition but without success.
13. Ms A has had a Blue Badge for many years. In April 2022 she reapplied for a badge on the grounds that her condition caused very considerable distress when walking and undertaking a journey.
14. The Council refused her application. On a desk-based assessment it awarded her one point on a scale of 1- 20 where only applications which attracted 12 or more points were deemed eligible. The assessor wrote, “I have looked at the psychological effect this situation causes for (Ms A) and while it does cause her to panic when she has a sudden and uncontrollable urge to go to the toilet, this alone does not meet the criteria for a Blue Badge”.
15. Ms A appealed against the refusal. She said her nerves were dead and she had no warning of a bowel movement. She said she started to defecate while walking to a toilet. She added, “the act of walking is distressing in itself because it encourages the bowel to start emptying itself”. She said she had to clean herself up if she decided to continue her journey, and frequently soiled her clothes. She said it was not easy to continue to drive once she had soiled herself, not easy to carry on working or to have any social life outside her home.
16. Ms A said the psychological effects were extremely difficult and distressing to cope with. She said, “I have to deal with this on a frequent basis and sometimes want to curl up and withdraw from life”. She added that the use of the Blue Badge had been a lifeline. She explained that due to the loss of the card her anxiety had worsened, and she said she was now extremely loathe to leave the house at all.
17. The Council considered the appeal. It raised her score from 1 to 5 to reflect the psychological impact. It wrote to Ms A in July and said although there was evidence she had a condition which caused distress, the desk-based assessment had taken that into consideration but her score was not high enough to qualify.
18. Ms A complained to the Ombudsman. She said she did not understand why her condition was no longer classed as a disability after 16 years, especially when the new guidance specifically catered for hidden disability conditions. She said she had stopped visiting people and travelling away from home since the loss of the Blue Badge and was now extremely depressed about the future.
19. The Council says it considered the research undertaken before the revised guidance was issued and noted the research group said “in many cases, the issue of needing to use a toilet at short notice is unlikely to be ameliorated through the award of a Blue Badge… In this case we, SCC, are attempting to determine the difference between severe and less impactful cases of urgent toileting, to help determine if a Blue Badge would assist.”
20. Ms A says the opinion of the research group is different from her experience. She says, “In my case this is totally inaccurate. I experience the total opposite. The sooner I can park up next to or near a toilet (when I had a Blue Badge!) and get out of the car and walk as short a distance as possible to get to the toilet, the better chance I have of not defecating. I haven’t even time to think about putting money in a machine. I am in, as I have said before, blind panic to get to the toilet.”
21. The Council adds that Ms A does not take painkillers or medication for depression and anxiety which would indicate that “although distressing, her symptoms are manageable”.
22. The Council says it considered three coping strategies mentioned by Ms A in her application: the use of Loperamide, Sacral Nerve Stimulator and the Blue Badge. It says “Assessing the use of coping strategies must be balanced. We must look for both effective strategies and strategies that could be employed which are not” and explains that Ms A did not cite the use of painkillers of anti-anxiety medication. It says “We agree that there are no coping strategies which will prevent Ms A from defecating while walking. It is recognised that the blue badge itself cannot aid in this either. Instead, we considered if there were compounding factors which would deem her eligible and any strategies employed.”

Analysis

23. The Council accepts Ms A suffers an enduring condition.
24. As a result of the loss of the Blue Badge Ms A has stopped going out of the house, stopped visiting people or travelling as she can no longer park close enough to a public toilet to prevent herself defecating before she reaches it. She says, “the loss of the Badge has led to a serious decline in the state of my mental health.”
25. In response to my draft decision, the Council says since the time of Ms A’s application it has created its own policy which includes the creation of an expert assessor form: it says “This will allow the doctors/medical professionals who know Ms A to provide their opinion on the Blue Badge criteria. We will use the information provided in this form to reassess Ms A, as indicated in your recommendations…. we have created a specific questionnaire for bowel incontinence to aid the team in collecting the evidence needed to assess cases such as this in a holistic way.”

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Agreed action

26. On receipt of the completed expert assessor form the Council will reassess Ms A’s application.

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Final decision

27. I have completed this investigation. I find the completion of the agreed action will remedy any injustice caused to Ms A.

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Investigator's decision on behalf of the Ombudsman