Summary: Mrs X complained about the Council’s decision to refuse her Freedom Pass application. We find fault with the process the Council followed when assessing Mrs X’s application, but we find the Council has already taken steps to remedy the injustice caused.

The complaint

1. Mrs X complains about the Council’s decision to refuse her application to renew her Freedom Pass. Mrs X says the Council misunderstood her medical evidence and her condition which meant she was unable to travel.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We cannot question whether a council’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)
4. 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

5. I considered all the information Mrs X provided. I also considered information received from the Council.
6. Mrs X 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

Relevant law

7. The Transport Act 2000 says concessionary travel is available to passengers over 65 and any passenger a council decides is disabled. In London, a concessionary travel pass is called a Freedom Pass.
8. There are seven categories of disabled people who are entitled to a concessionary travel pass, including category four - people who have a disability, or have suffered an injury, which has a substantial and long-term adverse effect on their ability to walk.
9. It is for a council to determine whether someone is a ‘disabled person’ for the purposes of concessionary travel.

Government Guidance

10. The Department for Transport (DfT) has published guidance (“the guidance”) to local authorities on assessing eligibility.
11. The guidance says the most robust way of assessing eligibility is likely to be via other relevant state benefits:
• Higher Rate Mobility Component of Disability Living Allowance (HRMCDLA).
• Personal Independence Payment (PIP), where the applicant has been awarded at least eight points against either the PIP ‘moving around’ and/or ‘communicating verbally’ activities.
• War Pensioner’s Mobility Supplement.
12. Applicants claiming these benefits will be able to provide documentary evidence of their entitlement. An applicant receiving the HRMCDLA or PIP will be able to produce an award notice letter from the Department for Work and Pensions (DWP). Even where such a letter does not in itself automatically entitle the applicant to the statutory concession, councils may wish to consider the degree to which it provides evidence in support of the conclusions of independent medical assessments.
13. For applicants outside the above categories, the guidance recommends that the next most robust means of assessment is likely to be via the authority lists of registered blind, partially-sighted, or profoundly or severely deaf people.
14. For other applicants, where there is any doubt about eligibility, the guidance recommends councils seek independent medical evidence to inform their decision. The cost of this should not be borne by the applicant.
15. The guidance recommends that independent health professionals should undertake assessments in place of GPs. In the case of assessment of the inability to walk, for example, occupational therapists (OTs) or physiotherapists are often best placed to assess eligibility due to their professional knowledge of mobility.
16. For those in category four, the guidance states “it is envisaged that passes will be issued to people who can only walk with excessive labour and at an extremely slow pace or with excessive pain”.

The Council’s process

17. At the time Mrs X applied, the Council did not have a published policy setting out how it assessed Freedom Pass applications.
18. The Council’s Freedom Pass application form lists the seven categories of disability and asks applicants to say which one applies and to provide supporting evidence. Where applicable, the form takes into account whether the Council has registered the person’s disability.
19. There was no provision for a person to apply on the grounds they receive a state benefit. And there was no reference to the Council undertaking an independent medical assessment to assess eligibility if needed.

Principles of good administrative practice

20. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes:
• Being open and clear about policies and procedures and ensuring information, and any advice provided is clear, accurate and complete.
• Stating the criteria for decision making and giving reasons for decisions.

What happened

21. In March 2023, Mrs X applied to renew her Freedom Pass under category four (has a disability, or has suffered an injury, which has a substantial and long-term adverse effect on his or her ability to walk) and enclosed supporting documents.
22. An officer wrote to Mrs X later that month to ask for further supporting evidence. Mrs X provided a medical letter dated March 2023, proof of being in receipt of PIP, a council tax bill, and a photo.
23. The Council wrote to Mrs X in April 2023 to refuse her application. The Council explained the medical evidence Mrs X provided demonstrated she had a medical condition but not an impairment where she had suffered an injury which has left her with a substantial and long-term adverse effect on her ability to walk.
24. Mrs X appealed to the Council later that month. The Council acknowledged Mrs X’s appeal and wrote to her in June 2023 to explain it had reviewed her appeal and decided she was not eligible for a Freedom Pass.
25. In July 2023, in response to a separate complaint, the Ombudsman found the Council at fault for not having a published policy setting out how it assessed Freedom Pass applications. The Ombudsman also found the Council at fault for not following the process as set out in the DfT guidance. The Ombudsman recommended the Council produce a policy in line with DfT guidance and review all rejected Freedom Pass applications from the last financial year.
26. The Council then reviewed Mrs X’s Freedom Pass application in November 2023 and issued her with a Freedom Pass.

Analysis

27. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was right or wrong. Instead, we look at the processes a council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
28. We expect councils to follow guidance unless they have a good reason not to. We also expect councils to be open and clear about policies and procedures. The Council did not have a published policy, but its practice was not in line with guidance because it did not follow the process of first considering relevant state benefits, then registrations, and then offering an independent medical assessment. The practice also lacked transparency over how applications are assessed. This is fault. However, the Council has now produced a policy in line with DfT guidance and I find this suitable remedy to any injustice.
29. The Council did not consider whether Mrs X was in receipt of relevant state benefits or offer her an independent medical assessment and decided on her application without following the guidance. This is fault. Mrs X missed the opportunity to have her request considered properly which is injustice. However, the Council has now reviewed Mrs X’s application and issued her with a Freedom Pass. I find this is a suitable remedy to any injustice.

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Final decision

30. I find the Council at fault for failing to have a published policy and for failing to follow DfT guidance when assessing Mrs X’s Freedom Pass application. However, I find the Council has already taken suitable action to remedy any injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman