Summary: Miss X complained the Council wrongly denied her application and appeal for a blue badge. There was no fault in the Council’s assessment of Miss X’s application. There was fault in how the Council informed Miss X of its decision, but this did not cause Miss X an injustice.

The complaint

1. Miss X complains the Council wrongly denied her application and appeal for a blue badge.
2. Miss X says the matter has caused her distress and has affected her health.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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)
5. 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

6. I considered information provided by Miss X.
7. I considered information provided by the Council.
8. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

9. Government guidance, which the Council uses to decide whether someone is eligible for a blue badge, says an applicant must have a ‘permanent and substantial disability that causes inability to walk or very considerable difficulty in walking.’
10. Since August 2019 the guidance was extended to include new assessment criteria for people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
11. Some people are automatically eligible for a blue badge. Where a person is eligible subject to further assessment, they must:
• 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
• have a permanent and substantial physical or hidden disability that causes inability to walk or very considerable difficulty in walking.
• 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.
12. 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.
13. Government guidance on blue badges sets out factors relevant in deciding whether an applicant meets the criteria, including:
• The level of pain experienced by an individual when they are walking, or as a consequence of walking;
• The degree of breathlessness they incur when, or as a result of, walking;
• The distance over which an individual is able to walk;
• The speed at which an individual is able to walk;
• The manner in which the applicant walks;
• An applicant’s use of walking aids.
14. 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.
15. The guidance strongly recommends that every applicant who is refused a Blue Badge should be given a detailed explanation of the grounds for refusal in the decision letter, and it is not enough to simply state the applicant did not meet the eligibility criteria. (Blue Badge scheme local authority guidance (England) section 6.10)
16. Applicants who can walk more than 80 meters 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.

Council’s blue badge scheme

17. The Council has a blue badge scheme. The scheme states if a person is not automatically eligible for a blue badge they may qualify for further assessment. Where further assessment is conducted, an independent expert assessor is appointed.
18. Once the assessment is completed, the Council reviews the report and issues a decision letter. To be eligible for a blue badge a person must score 24 points or higher in the assessment. If a person scores fewer than 24 points the application is rejected.

Background

19. Miss X has both physical and mental health conditions which she says impact on her ability to walk and attend medical appointments. As a result, Miss X applied to the Council for a blue badge.
20. In October 2022 the Council’s external expert assessor, an Occupational Therapist, assessed Miss X by phone. The assessor scored Miss X 22 points.
21. The Council wrote to Miss X and informed her she did not meet the criteria for a blue badge. It told her, based on the information it had considered, that her walking ability was not so severely affected that she was physically incapable of visiting shops, public buildings, and other places where she was not able to park very close to the destination. It sent a copy of the assessor’s report alongside the decision letter.
22. In November 2022 Miss X appealed the Council’s decision. She told the Council her chronic physical health issues including joint pain and asthma, as well as her mental health difficulties including depression and anxiety, significantly impacted on her ability to leave her home and attend health appointments.
23. The Council responded in early January 2023. It informed Miss X that:
• The assessment had been completed by an expert assessor.
• As she had scored 22 points during the assessment she did not qualify for a blue badge under its scheme.
• The assessor was of the view that Miss X’s reported difficulties in walking did not meet the criteria based on the severity of difficulty reported. This included Miss X being able to walk for 4-5 minutes at a slower pace before needing to stop to rest briefly.
• In considering the factors raised by Miss X, the Council decided to accept her appeal and arrange a second assessment.
24. Later in January 2023 the Council’s external expert assessor, a physiotherapist, conducted a review assessment by video call. The assessment:
• Considered information provided by Miss X including her medication, physical and mental health conditions.
• Found Miss X’s health conditions were enduring (lasted more than three years).
• Noted Miss X was able to walk with discomfort, without the use of a walking aid at a slow-moderate pace.
• Miss X could walk over 30m on a “bad day” with discomfort.
• Miss X was able to walk for a few minutes at a time on a “bad day”.
• Scored Miss X 20 points based on its assessment.
25. The Council wrote to Miss X in late January 2023. It told her two different expert assessors had considered her application but, on both occasions, it decided she did not meet the legal criteria. It sent a copy of the assessor’s report alongside the decision letter.
26. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

27. We are not an appeal body. If there was no fault in the decision-making process, we cannot comment on the decision reached. The blue badge guidance gives councils discretion in conducting assessments and this includes how much weight to give evidence, how to assess symptoms which fluctuate, and how to treat conflicting evidence.
28. I have found no fault in the Council’s assessments of Miss X. The assessments considered relevant information provided by Miss X in line with the guidance and made a decision based on that information. They were carried out independently by two different assessors.
29. However, the Council’s decision letters did not provide Miss X with a detailed explanation of the grounds for refusal, they simply said she did not meet the criteria in both its original decision letter and its subsequent review decision letter. In its response to Miss X’s request for an appeal, it provided her with an appropriate explanation of why her application was refused, but this was not provided until she appealed. This is against government guidance and is fault. Whilst this is the case, the Council sent Miss X a copy of the assessors’ reports which were used to determine her eligibility; therefore, Miss X was aware of the reasons her application was refused and therefore the fault did not cause her a significant injustice. I have, however, made a recommendation to prevent a recurrence of the fault and potential injustice to others.

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Agreed action

30. Within one month of the final decision the Council will remind officers in its Mobility Support Team that, when a decision to refuse an application is made, it should write to the applicant and provide a detailed explanation of the grounds for refusal.
31. The Council should provide us with evidence it has complied with the above action.

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Final decision

32. I have completed this investigation. I have found fault and the Council has agreed to take action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman