Summary: Mr F complains about the Council’s decision to refuse his son a Blue Badge. He says the decision puts his son and others at risk of harm. We have found no fault.

The complaint

1. Mr F complains about the Council’s decision to refuse his son a Blue Badge. He says the decision puts his son and others at risk of harm.

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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 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)
3. If we are satisfied with a council’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. Another investigator spoke to Mr F about his complaint. I have considered the Council’s response to my enquiries and:
• The Department for Transport’s Blue Badge scheme local authority guidance (England) August 2019 (“the Guidance”)
• The Council’s Blue Badge Parking Scheme for Disabled Drivers and Passengers Policy 2019
• The Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000 as amended by The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) (Regulations) 2019
5. Mr F 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

6. The Department for Transport’s (DfT) Blue Badge Scheme is to help disabled people with severe mobility problems access goods and services by allowing them or a carer to park near their destination. Children over the age of two may be eligible for a badge. Local authorities are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing whether people are eligible.
7. The DfT issues guidance to councils for providing Blue Badges. The Guidance sets out two types of eligibility criteria. A person may be “Eligible without further assessment” or “Eligible subject to further assessment” if they:
• drive a vehicle regularly, have a severe disability in both arms and are unable to operate, or have considerable difficulty in operating, all, or some types of parking meter; or
• have an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, or experience very considerable difficulty whilst walking, which may include very considerable psychological distress; or
• they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person
8. The Guidance says difficulties whilst walking could potentially be caused by a physical disability, or by a non-visible (“hidden”) disability. It notes that for some people with non-visible disabilities, problems occur when they are walking during the course of a journey, rather than as a direct result of the physical act of walking. To qualify for a Blue Badge the extent of the effects experienced by the applicant must be such that they amount to very considerable difficulties, or a risk of serious harm to themselves or others, whilst walking during the course of a journey. It also says local authorities will need to be satisfied that difficulties cannot otherwise be managed through reasonable coping strategies and that they may consider the frequency of the problems.
9. In no circumstances should a badge be issued to an applicant who does not meet one of the eligibility criteria set out in the legislation.
10. If it is not self-evident to a local authority whether the applicant meets the criteria then a referral should be made to an expert assessor for certification. The 2019 Regulations say an expert assessor is someone who has a professional qualification which enables them to diagnose, treat, or provide specialised therapeutic services to, someone with the disability and the necessary expertise to assess the effects of the disability on the person capacity to walk during the course of a journey. The Guidance recognises that for non-visible disabilities especially, it may be that only a professional with a close knowledge of the applicant’s case history could certify their disability.
11. In determining eligibility, the council is expected to consider all of the insights received from across the application form, supplementary information provided by the applicant, and statements from medical and social care professionals familiar with the applicant.
12. If applicants are unhappy with the outcome of an application, they may ask the council to review the decision. The Council's policy says if the applicant provides new or additional medical evidence the Council will arrange for this to be reviewed by an expert assessor. Where the original decision is upheld, the applicant may request that the decision is reviewed by the relevant integrated social care manager whose decision will be final.

What happened

13. Mr F’s son, J, has severe learning difficulties. Mr F applied for a Blue Badge for J on 4 September 2019. The application form says J has a non-visible disability that caused him to be a risk to himself and others, find it impossible to control his actions, have overwhelming responses to situations, and become extremely anxious or fearful. Mr F said J had no sense of danger or spatial awareness and could refuse to leave or get in a vehicle, which could cause danger to everyone in the family. Mr F said the family had to park as close to their destination as possible and needed extra space to avoid risk and anxiety.
14. There was a delay in determining the application which the Council says was due to the number of applications it had received following the 2019 Regulations coming in to force in September 2019.
15. The Council reviewed Mr F’s application on 25 November 2019. It decided to request further information and asked for an “expert assessor form” to be completed by a professional working with J on a day to day basis. Mr F suggested J’s teacher.
16. The teacher returned the form on 24 January 2020. The form said J may experience anxiety and refuse to move, even if he was in danger, or may run or become aggressive, which could prove to be dangerous if near traffic. It noted J did seem to be aware of traffic and would stay on paths, but always required close supervision. He had never caused serious harm to others or experienced serious harm.
17. The Council’s two expert assessors reviewed the form, Mr F’s application and the supporting information. In response to my enquiries the Council said these officers are qualified professionals, one being a physiotherapist the other an occupational therapist, who have extensive experience working in the community and rehabilitation settings. Their assessment of J’s application says:

“Attends school trips with support, able to follow instruction, no safety concerns raised as long as supervised. Good level of understanding of safety. Risk behaviours on EA form ticked as occasionally or never on all components. … Using a variety of coping strategies effectively. … Blue Badge would not be considered to significantly reduce difficulties in taking a journey.”

18. The Council refused the application. It wrote to Mr F on 31 January 2020 with its decision. The letter said there was insufficient evidence that J experienced very considerable psychological distress, or was at risk of serious harm, or posed a risk of serious harm to others, when walking. It noted that where the presence of someone supporting the applicant negated the risk, the person was unlikely to qualify.
19. Mr F asked for the decision to be reviewed. This was done by an expert assessor on 13 February 2020. The Council upheld the decision. Its decision letter of 17 February 2020 said it had considered all the additional evidence but did not consider J was restricted to the extent that he met the criteria for a blue badge. The letter highlighted that the difficulties must be experienced “whilst walking”.
20. Mr F remained dissatisfied and asked for J’s application to be reviewed by the Council’s integrated social care manager. Mr F said the evidence showed J could come to harm if he was not able to access the disability parking areas closer to entrances and exits. He would sit on the floor, regardless of where he was, as he had no danger awareness and would run away if given the opportunity. J also had no spatial awareness and needed extra space to enter and exit the vehicle safely.
21. The manager upheld the decision on 5 March 2020. Mr F complained to the Ombudsman. The length of our investigation was affected by the coronavirus pandemic.

My findings

22. The Ombudsman is not an appeal body. We cannot question or overturn a council’s decision simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. I have therefore considered how the Council decided J was not eligible for a blue badge.
23. The Council considered Mr F’s application and supporting documents, such as J’s Education, Health and Care Plan, Mr F’s appeal letters and information from the NHS. It also asked a professional with knowledge of J for information. This information was considered by the Council’s expert assessors, who are suitably qualified. Mr F asked the Council to twice review its decision. It did so in line with its policy and upheld the decision. I find there was no fault in the way the Council considered the application.
24. The Council determined J did not meet the required high threshold of eligibility for a Blue Badge. In response to my enquiries, the Council said the risk of harm and severe psychological distress to J was not happening “more often than not” and that coping strategies were in place and were effective for the most part.
25. The Council has considered coping strategies and the extent to which a Blue Badge would reduce difficulties in taking journeys. It also considered the frequency of the problems and that J’s distress did not occur whilst he was walking. It reached the view that J’s actions could be mitigated with the presence of another person. This was supported by information from his school that he could be managed on trips with support and that the problems did not occur more often than not.
26. These are decisions the Council was entitled to take. It reached its decision after consideration of relevant information and without evidence of fault in the way it considered that information I cannot question its decision.

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Final decision

27. There was no fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman