Summary: Ms B says the Council failed to properly consider her hidden disability when deciding a blue badge application. There was fault by the Council, but it has already remedied this, and it will consider a new application.

The complaint

1. The complainant Ms B complains that the Council failed to properly consider her blue badge application because it did not consider her hidden disability. She says that as a result she cannot leave her home.

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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 significant injustice, or that could cause injustice to others in the future 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 discussed the complaint with Ms B and considered the information she provided by the complainant. I have made enquiries of the Council and considered the comments and documents it provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

The Blue Badge Scheme

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. 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.
9. 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.
10. 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.

What happened

11. Ms B moved from another council’s area to Essex County Council’s area. Her previous Council had awarded her a blue badge for several years.
12. Ms B applied to the Council in November 2023 because her blue badge was due to expire. She said that the main reason for needing a blue badge was due to having a permanent disability and she found walking difficult. She said that walking caused her severe pain in her neck, back and arms.
13. She also stated she had a hidden disability that meant she severely struggled with journeys between the vehicle and the destination. She explained that her health condition meant that she needed to be able to access a toilet immediately. She panicked every time she had an attack due to the condition because she had no control over her bowels. She said she could walk for 10 minutes, but if she had an attack, she could not walk at all.
14. The Council’s online form explains that as supporting evidence for non-visible (hidden) disabilities, the applicant needs to provide an assessment form and covering letter completed by a professional involved in the diagnosis or ongoing treatment of the condition. The Council included a link to the relevant form.
15. Ms B did not submit a copy of the hidden disabilities form or letter.
16. The Council carried out a mobility assessment regarding Ms B’s ability to walk.
17. In November 2023 the Council refused Ms B’s application for a blue badge. It wrote to her and stated that she did not meet the Department for Transport’s statutory criteria for a blue badge. It said the legislation allows for people who:
• Are unable to walk;
• Experience very considerable difficulty whilst walking, which may include very considerable psychological distress; or
• are at risk of serious harm when walking; or pose, when walking, a risk of serious harm to any other person.
18. The Council said that it assessed the distance walked as well as the speed, manner, any breathlessness and excessive pain, use of walking aids, and whether the effort of walking presents a danger to the applicants life, or would be likely to lead to serious deterioration in their health.
19. In Ms B’s assessment, it said it observed she mobilised unaided total distance of 90 metres without needing a break. It said she walked slowly, but with a fluid gait and with good ground clearance. She was able to hold a conversation whilst walking.
20. The Council did not provide details in its letter about how Ms B might appeal against its decision.
21. In December 2023 Ms B appealed against the Council’s decision. In an email she said that she walked slowly due to pain. She said she also had lots of accidents due to being unable to control her bowel. She said that since the Council had refused her application, she had not been out because of the fear of not making it to a toilet in time. She said the stress was making things much worse.
22. Ms B provided a copy of a recent letter from her gastroenterology consultant which stated that people with her condition often need to go to the toilet at very short notice and needed quick access to parking. She also provided a copy of a letter from a social prescriber which said Ms B could not go out without her car because of accidents, she needed a blue badge to be more independent and that it would have a negative impact on her mental health if she could not use her car. Ms B also provided a further consultant’s letter regarding the pain caused by her condition when walking.
23. The Council completed a further mobility assessment using a new assessor. The assessor considered that Ms B could walk 120 metres slowly. He recorded the supporting letters from Ms B’s consultant and the social prescriber. He did not recommend the Council should award a blue badge.
24. In February 2024, the Council refused Ms B’s appeal. It explained it considered the mobility assessment and while it understood Ms B had mobility issues, the level at which she functioned was not in line with the DfT criteria for a blue badge. It said Ms B could mobilise a total distance of 120 metres safely and effectively without significant difficulties. Therefore, it said that in regard to Ms B’s physical mobility, her application was unsuccessful.
25. The Council did not refer to the specific hidden disabilities Ms B raised. However, it repeated its explanation in paragraph 17 above, regarding the DfT criteria. This included that it considered Ms B did not “Experience very considerable difficulty whilst walking, which may include very considerable psychological distress.”
26. In its response to our enquiries the Council said:
• Ms B’s main reason for applying was on the basis of being unable to walk due to pain, which it had assessed.
• Ms B had not completed the supplementary application form regarding hidden disabilities which its website explained it required.
• Ms B had not provided evidence the application was in line with the hidden disability criteria.
• The need to access toilet facilities quickly is not part of the DfT’s national criteria for a badge to be issued.
• Its assessor had considered the information Ms B had supplied in support of her appeal, as these documents were referred to in the assessment.
27. The Council said Ms B was welcome to apply again under the hidden disability criteria. This would need to be supported by the required supplementary hidden disability evidence form, completed by a professional involved in the treatment, diagnosis, and provision of on-going therapeutic services, relating to the psychological distress experienced. This cannot be the GP.

Analysis

28. It is not my role to decide whether Ms B is eligible for a blue badge or give a view about the degree to which she meets the relevant criteria. My role is to consider whether the Council followed the correct process in coming to a decision.
29. I consider there was fault by the Council because it did not explain how Ms B could appeal its decision.
30. In its response to a draft version of this statement the Council said it had recently added details to its decision letters about how an applicant can appeal.
31. The Council says it will consider a new application from Ms B with the appropriate hidden disabilities form.

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Final decision

32. The Council has already remedied the fault I identified. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman