Summary: Mr X complained the Council wrongly declined his application for a toll bridge fee exemption. He said the Council did not consider his application as someone with a mental health disability in the same way as it would consider an application from a person with a physical disability. Mr X said he felt the Council discriminated against him as a result. We found fault by the Council. The Council agreed to apologise to Mr X, provide a financial remedy and provide us with evidence of its service improvements.

The complaint

1. Mr X complained the Council wrongly declined his application for a toll bridge fee exemption in December 2021. He complained the Council did not consider his application as someone with a mental health disability in the same way as it would consider an application from a person with a physical disability. Mr X said the Council’s criteria is not in line with the Equality Act 2010 and said he felt the Council had discriminated against him.
2. Mr X says the Council declined his previous application for the toll bridge fee exemption in 2019.

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What I have and have not investigated

3. I have investigated Mr X’s complaint dating back to his disabled persons’ concession application in December 2021. I have not investigated Mr X’s complaint the Council declined his 2019 application because this aspect of the complaint is late.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I discussed the complaint with Mr X and considered the information he provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Personal Independence Payment

10. Personal Independence Payment (PIP) can help with extra living costs if you have both:
• a long-term physical or mental health condition or disability
• difficulty doing certain everyday tasks or getting around because of your condition
11. There are two parts to PIP:
• a daily living part – if you need help with everyday tasks
• a mobility part – if you need help with getting around
12. You might get the mobility part of PIP if you need help with planning a journey and following it, physically moving around, or leaving your home. You do not have to have a physical disability to get the mobility part; you might be eligible if you have difficulty getting around because of a cognitive or mental health condition, like anxiety.

The Hampshire Act 1983

13. The Hampshire Act 1983 states the Council may charge a toll for traffic crossing over Itchen Bridge. The charge does not apply to pedestrians.
14. The Council’s Itchen Bridge Tolls Order 2021 (the Order) sets out the terms under which the Council may apply a charge for traffic crossing the bridge. The Order also sets out the criteria under which the Council may apply concessions, including a disabled persons’ concession. Successful applicants to the disabled persons’ concession are exempt from paying the bridge toll.
15. At the time of Mr X’s application for toll exemption, the Order said applicants who were in receipt of Personal Independence Payment at 8 points or above against the ‘moving around’ activity of the mobility component qualified for the disabled persons’ concession.
16. The Council operates a SmartCities card which allows card holders to access several different services in the area. The SmartCities card can be used as a payment card for the bridge toll.

Equality Act 2010

17. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
19. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

20. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

Background

21. Mr X is disabled, receives PIP and is a Blue Badge holder. He also has a SmartCities card. Mr X applied for a disabled persons’ concession for the bridge toll in 2019. He says the Council declined his application because his PIP entitlement did not award eight points or more in the ‘moving around’ element of the mobility component.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mr X completed a renewal form for his SmartCities card in December 2021. As part of his renewal application, Mr X applied for free crossing of the Itchen Bridge. Mr X provided the Council with evidence of his PIP entitlement as part of his renewal application.
24. The Council declined Mr X’s application for fee exemption for the toll bridge.
25. Mr X complained to the Council on 17 December 2021 and said his entitlement to PIP meant he met the criteria for the disabled persons’ concession. Mr X complained the Council had discriminated against him for having mental health disabilities rather than physical disabilities.
26. The Council replied to Mr X’s complaint on 6 January 2022 and provided Mr X with a link to the Order. The Council referred to its criteria as set out in the Order, including the following:

“’Disabled Persons’ Concession’ means a Concession available to a person who is in receipt of…Personal Independence Payments at 8 points or above against the ‘moving around’ activity”

27. The Council said the evidence of Mr X’s PIP entitlement provided with his application showed Mr X was awarded 12 points for ‘planning and following a journey’. However, it said Mr X received no points for the ‘moving around’ activity and therefore, “under the criteria set out within the Toll Order, the Council is unable to issue a Disabled Persons’ Concession in this case”.
28. In May 2022, Mr X told the Council he wished to pursue his complaint. He said the Council refused to issue bridge fee exemption to anyone with mental health disabilities, and only granted exemption to those with physical disabilities. Mr X said the Equality Act meant the Council was incorrect to differentiate between disabilities.
29. The Council replied in June 2022. It said it found no evidence it had deliberately discriminated against Mr X but acknowledged the issues he raised required further consideration. On this basis, the Council upheld Mr X’s complaint. The Council apologised to Mr X that he felt discriminated against on the grounds of his mental health and recommended providing a financial remedy to recognise the time and trouble spent in raising his complaint. It also recommended reviewing its criteria for the disabled persons’ concession in line with the Equality Act 2010. The Council said that following its review it would reconsider whether Mr X qualified for the fee exemption. It also said it would decide if it was necessary to contact previous applicants who were declined on similar grounds to encourage them to reapply.
30. The Council contacted Mr X again in August 2022 and said it had completed its review of the criteria. The Council said the criteria it used to issue disabled persons’ exemptions was lawful and in line with the Equality Act. As a result, the Council said Mr X was not eligible to receive the exemption and it was not necessary for it to contact other previous applicants.
31. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

What happened next

32. As part of its response to our enquiries, the Council told us it had investigated this matter further. It said that as a result, it identified that the management team for the service in question had not fully understood the distinction between the ‘moving around’ and ‘planning a journey’ aspects of PIP entitlement. The Council said this had resulted in a miscommunication over what had been taken into consideration as part of Mr X’s application.
33. The Council apologised for the error and said it had reviewed its application process. Following this review, the Council said it had amended the wording of the Order and its guidance notes to specifically note that both the ‘moving around’ and the ‘planning a journey’ parts of the PIP mobility component are considered as part of applications for disabled persons’ concessions. The Council said it had also provided additional training to the relevant team to ensure such errors do not occur again.
34. The Council said Mr X was entitled to the concession based on his PIP award. It said it would apologise to Mr X and provide a further financial remedy to address the additional time and trouble taken by bringing the complaint to us.

Analysis

35. It is positive the Council has itself identified its error in considering Mr X’s application. It is also positive it has taken steps to provide a remedy and to ensure such errors do not recur. However, given the Council identified these issues after we made our enquiries, I must still consider Mr X’s complaint and whether the Council is at fault.
36. Mr X complained the Council wrongly declined his application for the disabled persons’ concession. This is because he said his PIP award meant he met the required criteria. The Council has stated it did not fully understand the distinction between the ‘moving around’ and ‘planning a journey’ aspects of PIP entitlement when it considered Mr X’s application. Following its reconsideration, the Council acknowledges Mr X is entitled to the concession despite there being no change in his PIP award. On this basis, the Council’s initial consideration of Mr X’s application was flawed, and I have found this to be fault.
37. Mr X complained the Council did not consider his application as someone with a mental health disability in the same way as it would consider an application from a person with a physical disability. He says the Council’s criteria is not in line with the Equality Act 2010.
38. As stated at paragraph 20, we cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
39. The evidence shows the Council followed its process to assess Mr X’s entitlement; it considered the information provided to it regarding Mr X’s PIP award. The Council initially decided Mr X was not entitled to a disabled persons’ concession because it considered his PIP award did not satisfy the criteria. The Council therefore took account of relevant and evidence-based factors when rejecting Mr X’s application.
40. I acknowledge the Council’s initial consideration of Mr X’s application was flawed, and as previously stated, I have found this to be fault. However, I have seen no evidence the Council considered Mr X’s application differently to an application from a person with a physical disability. On this basis, the Council is not at fault for failing to take account of its duties under the Equality Act.
41. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr X says the Council’s actions meant he had to pay the toll if he wanted to cross the bridge by car. In his correspondence to the Council, Mr X also said there were occasions when he crossed the bridge as a pedestrian because he had no payment method.
42. It is positive the Council has offered a personal remedy to Mr X and has taken steps to ensure it does not make a similar error when assessing concession applications. However, I am not satisfied the Council’s proposed remedy adequately addresses the injustice identified.

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Agreed action

43. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X for the fault identified;
2. Make a payment of £350 to Mr X to recognise the distress and inconvenience caused as a result of the fault identified;
3. Make a further payment of £150 to Mr X to recognise the time and trouble in bringing his complaint to us;
4. Provide evidence the Council has activated Mr X’s disabled persons’ concession as part of his SmartCities card, and
5. Provide evidence to us the Council has provided additional guidance and training to staff on how to assess disabled persons’ concession applications.
44. The Council has also agreed to take the additional following action within four months of the final decision:
1. Provide confirmation the Council has contacted previous applicants who were declined exemption on similar grounds to encourage them to reapply, in line with the Council’s recommendation made at stage two of Mr X’s complaint, and
2. Provide confirmation the Council has amended the wording of the Smartcities card renewal form to reflect the amended wording of the Toll Order
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have found fault by the Council and the Council has agreed to take the above action to remedy this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman