Summary: Mss B complained that the Council had failed to consider the psychological aspects of her condition when assessing her application for Blue Badge. We found some fault in the Council’s actions. The Council has reconsidered the decision and we do not consider any further remedy is appropriate

The complaint

1. Miss B complained that Suffolk County Council (the Council) in considering her application for a Blue Badge has failed to properly consider the psychological aspects of her condition and the severe fatigue she suffers after doing any physical activity. This has caused Miss B distress and frustration as she is unable to go out and do everyday activities such as shopping or attend medical appointments.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B 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

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:
• 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.

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. Miss B has a chronic medical condition which causes her fatigue and pain but varies in its severity. She is often unable to walk any distance. She has to get someone to drive her to appointments or shops in case she is unable to find a parking space close to her destination.
12. She included a letter of support from her specialist Occupational Therapist (OT) who also completed the health care professional form. The OT described in detail the impact of her condition on Miss B’s life and the invisible nature of her symptoms. They said she regularly experienced very overwhelming or severe anxiety while walking to her destination and increased pain and fatigue after walking anywhere.
13. The Council sent Miss B for an independent mobility assessment. The assessment contained details about the degree of fatigue and pain Miss B suffered on a daily basis and the variability. She reported taking over-the-counter pain relief when needed. She also said she experienced anxiety and depression but was not taking any medication for it. The assessor noted that Miss B had not provided any medical evidence with the application but had now provided a report from a specialist clinic. The assessor noted she walked her dog as often as she could. In the last three weeks she had only managed the walk on four days.
14. On the walking assessment the assessor observed Miss B walk at a slow but steady pace, unaided without rest and with no breathlessness. They gave her a score of one out of a possible five for distance, five out of five for distance as she walked at a very slow pace, three out of five for outdoor walking ability, one out of five for manner of walking due to some fatigue and the level of pain observed. As Miss B’s score was less than 17 points she did not qualify for a blue badge. The assessor acknowledged her daily living and mobility difficulties but concluded there was no evidence of substantial limitations to warrant a badge.
15. Miss B appealed the decision. But the Council confirmed the decision remained the same. Miss B then requested that the Council consider her application under the hidden disabilities criteria. The Council said her application had been properly considered taking into account the information she had provided, which did not include any information that substantiates how she met the eligibility criteria under the non-visible disability criteria and the decision remained the same.
16. Miss B complained to us. In response to my enquiries the Council initially said it was willing to refer her for an Expert Assessment under the non-visible disability criteria. In response to an earlier draft of this decision it withdrew that offer and considered it had properly determined Miss B’s claim because it was certain on the evidence provided, that it was able to decide without further assessment that Miss B was not eligible (paragraph 4.88 of the guidance).
17. But to support its view it had asked an independent senior OT to review the claim looking at the non-visible criteria. They concluded on the evidence already provided, that Miss B did not qualify.

Analysis

18. The Council properly considered Miss B’s physical difficulties with walking by carrying out a mobility assessment and scoring her abilities based on those observations along with the information Miss B had provided with her application. The assessor explored the degree of pain and fatigue she experienced and the variability of her abilities. I find no fault with this aspect of the process.
19. However, Miss B’s OT said in their evidence that Miss B regularly experienced very severe anxiety and increased fatigue when she went out and had to walk further than she could manage due to a lack of parking. This anxiety and fatigue lasted for a prolonged period after going out and affected her ability to carry out basic tasks. I considered it was fault for the Council to say in its final communication that Miss B had not provided any information to show how she meets the non-visible disability criteria, given the detailed information her OT had provided.
20. As the Council has now provided a further assessment by a senior OT who has concluded Miss B does not meet the criteria, I am satisfied Miss B’s case has been properly considered.
21. I understand our role is not to decide whether or not Miss B’s qualifies for a Blue Badge and the Council is entitled to decide a person does not qualify without a further expert assessment, as the guidance provides. However, as part of its decision it needs to explain why it is discounting evidence provided by the applicant (including their own description of the impact of their condition on walking) to ensure they can properly understand why the decision has been made.

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Final decision

22. I have completed my investigation as the action taken by the Council has remedied the injustice caused to Miss B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman