Summary: There was fault by the Council in how it handled Mr B’s application for a blue badge and his appeal about this. The Council cannot show how it considered that Mr B had suffered recent falls. It is wrong to say that it can only use the information he provided. It should have considered whether he was complaining about the conduct of the assessor when he appealed the Council’s decision to renew his blue badge. This has left Mr B uncertain that his application and appeal was properly considered, but it is unlikely that a fresh review would mean the Council decide he is eligible for a blue badge. The Council has agreed to take action to remedy the injustice.

The complaint

1. Mr B complains the Council wrongly decided not to renew his blue badge, and did not take into account all the evidence available to it. Mr B also complains the assessor was rude to him and inappropriately said he would end up in a wheelchair.
2. The Council refused to grant Mr B a disabled person’s blue badge for parking. He says this has meant that he has struggled to get to the shops and appointments.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A), and 25 (7) 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)

Back to top

How I considered this complaint

6. I considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all the comments received before issuing this final decision.

Back to top

What I found

The law and guidance

7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. The DfT guidance says that an assessment can include contacting medical, health/social care practitioners, memory clinics, schools, or others to seek further insight about the applicant’s disability and how it affects them whilst walking during the course of a journey

Back to top

What happened

13. Mr B has a disability that affects his mobility. Mr B had a blue badge but it was due to expire and he applied to the Council to renew the badge.
14. On his application Mr B said that he had a hidden disability and problems with walking. He said that if he walks long distances his knee usually buckles, he loses balance, and he has fallen. Mr B explained that he walks with a limp and he drags his feet. He said his mobility problems causes him anxiety when he is out, and that he suffers with fatigue.
15. Mr B also submitted letters from his consultant (relevant to his condition). This referred to Mr B being anxious to go out due to falls, and feeling unstable. The consultant said that he had examined Mr B who had a tendency to suddenly drop on one side, but that otherwise he had a steady gait.
16. The Council contracts with an external organisation to assess blue badge applications and deal with reviews and appeals. The Council remains responsible for the actions and service of the external organisation and so I have referred to the Council throughout this statement.
17. The Council’s independent mobility assessor met with Mr B to assess his mobility. I have seen the Council’s record of that assessment. It includes that Mr B had reported he had suffered three falls in the last year and that he had near misses. It also said that he had recently started physiotherapy.
18. The assessor noted that during the assessment, Mr B walked slowly with a limp, dragging one foot, stopped three time due to knee pain, and had mild instability when using outdoor steps with a rail. The Council decided that Mr B did not meet the mobility criteria for a blue badge.
19. Mr B appealed against the Council’s decision. He said he could not understand why the Council would refuse to renew his blue badge when his condition had got worse. Mr B referred to his medical evidence and what it said about his ability to walk. He particularly referred to fatigue, which he says is not tiredness but is overwhelming and debilitating. He also again stated that he had three falls in the last year.
20. Mr B referred to the Council’s assessment. He said he had stopped due to fatigue and not pain, and the assessor had not taken account of fatigue and the impact on him. He also said that he had started treatment with a neuro physiotherapist but they would not produce a report until he had more sessions. Mr B also complained to the Council that the assessor had told him to make the most of his independence as, given his particular disability, he would end up in a wheelchair.
21. The Council considered Mr B’s appeal but refused his application. I have read the Council’s appeal assessment document and the decision letter it sent to Mr B. Both documents say that there is no evidence of recurrent or unexplained falls. The documents mention that Mr B provided information about near miss falls. They do not mention that Mr B told the Council that he had fallen three times in the preceding year.
22. In response to my investigation, the Council has explained that it considered Mr B’s account of falls. However, it also took into account there was no medical evidence of falls (eg hospitalisation, referrals to a fall prevention service, or healthcare professional involvement). The Council says it takes a balanced approach that considers an applicant’s self-reported experiences but also medical evidence. As such it refused Mr B’s blue badge application.
23. The Council did not respond to Mr B’s concerns about the assessor’s conduct. In response to my enquiries, the Council has explained that Mr B did not make a complaint about this, but the comment was considered as part of the appeal assessment. The Council says that the assessor was experienced and the assessment is focused on the current situation and what might happen in the future. It has not investigated their conduct fully because the assessment happened some months ago and this particular assessor no longer works with the organisation.
24. I asked the Council whether it had considered getting more information from Mr B’s neuro physiotherapist to inform the appeal. The Council has explained that it reviewed all the information Mr B had given it as well as the assessor’s observations. It says that it relies on the information submitted by applicants and only supplied information can be used within its process. The Council will consider any updated information from Mr B in a fresh application.

Analysis

25. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation 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 you disagree with the decision the organisation made.
26. It is for the Council to decide Mr B’s application for a blue badge and his appeal. Mr B did not submit any medical evidence of falls. However, the Council’s appeal assessment and the decision letter it sent to Mr B does not show that it took account of his reports of the falls he had that year; it only refers to near miss falls. It may be that the Council considered Mr B’s account of his falls but it does not mention it in the information it has considered and so it cannot show that it did so. This is fault by the Council.
27. The guidance says that councils can contact other medical practitioners to find out more about how the applicant’s disability affects them. Mr B submitted a great deal of medical information and the Council may have decided that it was sufficient to rely on that. However, it was wrong to say that it can only use the information the applicant provides. We would expect it to be open to contacting medical practitioners for information where needed.
28. The Council’s shortcomings have caused Mr B uncertainty as to whether the Council decided his appeal properly. Sometimes we will recommend that a council review its decision, ensuring that it takes into account all the information. However, the Council has considered Mr B’s situation fully in response to my investigation and it had taken into account the medical information and the observations of the assessor. This means it is very unlikely that a further review would mean the Council approves Mr B’s application for a blue badge, and so I have not recommended the Council do this.
29. The Council said it looked at Mr B’s concerns about the professional conduct as part of the appeal but it has not given me any information from its file to show that it did this. This is fault by the Council. It should be alert to parts of the appeal that are a complaint about conduct, potentially to be considered under its complaints process rather than rely on the public making a separate complaint. The Council says it could not fully investigate the assessor’s conduct now. I agree. I can see that Mr B was distressed and upset by the remark, and he wanted to raise it with the Council, but an investigation now is unlikely to establish what happened, nor achieve any worthwhile remedy.

Back to top

Agreed action

30. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of the organisation and make the following recommendations to the Council.
31. The Council will within one month of the date of this decision:
• Apologise to Mr B. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Remind staff dealing with the assessment of blue badge applications and appeals that:
1. they should take all the information into account and be clear that they have done so on the file.
2. they can consider contacting medical practitioners for further information where required.
3. where issues raised in an appeal might also be a complaint about conduct of a member of staff, they should consider whether the Council should investigate and respond to this in line with its complaints process.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I have completed my investigation. There was fault by the Council causing injustice to Mr B.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman