Summary: Mrs X complains the Council failed to properly consider an application she made for a blue badge for her son. We found the initial explanation of the Council’s decision was lacking in detail, but we found the decision the Council ultimately made not to grant a blue badge was one it was entitled to reach. We recommended the Council should improve the way it documents its approach to considering applications.

The complaint

1. Mrs X’s son has autism. She complains that the Council was wrong to refuse her applications for a Disabled Persons Parking Badge (Blue Badge) for her son. She complains the Council did not properly explain its decisions. Mrs X complained the Council made it impossible to understand what evidence was required to support an application made under the ‘hidden disabilities’ rule as the Council do not make it clear what evidence is accepted.
2. Mrs X complains her son is a risk to himself and others and without a Blue Badge it limits the opportunities he has to access the community.

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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 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 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

5. I spoke to Mrs X and considered the information she provided about her complaint.
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

Blue Badge Scheme local authority guidance (England) 30 August 2019

7. This is non-statutory guidance by the Department for Transport (DfT).
8. Section Four of the guidance sets out the two forms of eligibility for a Blue Badge.

Type 1: Eligible without further assessment

9. In some circumstances, people will be automatically eligible for a Blue Badge. These include people who are registered blind or people in receipt of certain benefits which already assess mobility, people in receipt of a War Pensioner’s Mobility Supplement; and people who have been awarded a lump sum under the Armed Forces Compensation Scheme and have an inability to walk or considerable difficulty walking.

Type 2: Eligible subject to further assessment

10. This sets out how people who do not meet the ‘automatic’ criteria, will be assessed for eligibility for a Blue Badge. To be considered the person must be over two years old. They must meet one of the following criteria for eligibility:
• a person who drives a vehicle regularly, has a severe disability in both arms and is unable to operate, or has considerable difficulty in operating, all, or some types of parking meter; or
• a person who has been certified* by an expert assessor as having an enduring and substantial disability which causes them, during the course of a journey, to be unable to walk, experience very considerable difficulty whilst walking, which may include very considerable psychological distress
• in addition, they may be at risk of serious harm when walking - or pose, when walking, a risk of serious harm to any other person.
11. Any of the above three types of difficulty whilst walking could be caused by a physical disability or a non-physical (hidden) disability.
12. In the past the guidance promoted independent assessments of mobility and eligibility rather than recommendations from an applicant’s GP. However, since changes to include non-visible disabilities, it recognises it may now be appropriate to gain information from a professional with a close knowledge of the applicant’s case history. It states they may be the most appropriately qualified person to certify their disability for the purpose of their Blue Badge application.
13. Paragraphs 4.63, 4.64 and 4.65 provide comments on comparing behaviour with that which all children may exhibit and whether it could be reasonably managed by coping strategies. Paragraph 4.65 states, in effect, that while effective coping strategies may be possible, consideration should also be given to how extensive these need to be and whether a blue badge may be an appropriate coping strategy in its own right.
14. Paragraph 4.100 of government guidance states it is likely to be necessary for councils to document their approach to assessing hidden conditions that affect someone’s ability to walk during the course of a journey. The approach may differ for different applicants. The guidance states the approach could include:
• seeking more information form the applicant;
• cross checking information with health or social care records;
• contacting medical health or other professionals to seek more insight into an applicant’s disability; or;
• referring the applicant for an assessment.
15. Paragraph 4.101 states that documenting the approach adopted for each individual applicant would enable local authorities to evidence why they believe the most appropriate mechanism has been used to determine eligibility.

Mrs X’s complaint

16. In September 2019 Mrs X submitted an application for her son (referred to in this statement as Y) for a Blue Badge.
17. Y was three years old at the date of application. On the application form Mrs X stated Y had autism, severe learning difficulties and was non-verbal. She stated he does not understand instructions and exhibits extremely challenging behaviour. Y was a risk to himself every time they went on a journey, Y found it impossible to control his actions and he had intense and overwhelming responses every time they went out with him. She stated they struggled to plan or follow a journey and Y became anxious and fearful of open spaces every time they went out. She provided descriptions of the Y’s behaviour under each of these criteria.
18. Mrs X’s application explained the reason a blue badge would improve taking a journey in Y’s case. She said Y needed more space around the car as frequently required positive handling to get him in (and may be kicking etc). She said Y was a safety risk and it is better to be close to the destination if he does run to avoid being at the back of a car park or close to a road. He often had huge meltdowns and she needed to be able to remove him from situations very quickly or he would self-injure. She stated they needed to be close to the destination as they often had to carry him due to his refusal to walk.
19. The application form noted medication Y took and several health professionals who treated Y. With the application Mrs X provided a copy of Y’s Education Health and Care Plan (EHCP) and an associated educational psychologist report.
20. On 2 December the Council wrote to Mrs X to decline the application. The Council’s letter stated Y did not qualify for a blue badge from the information given on the application form. The Council stated “I am sorry to have to inform you that he does not qualify for the issue of a badge from the information you have given on the application form as there is no evidence of an ‘enduring and substantial disability’ and behaviour is not related to walking.” The Council enclosed a copy of a government booklet and stated Mrs X could re-apply if Y’s condition changed.
21. On 3 March 2020 Mrs X questioned the Council’s decision. She told the Council Y would be attending a special school in September, he had an EHCP and he was in receipt of DLA. This showed that he did have a disability, contrary to the Council’s statement in the decision letter. Mrs X also provided evidence Y had epilepsy. Mrs X stated Y dropped to the floor, lashed out and refused to walk on every single walk of any length. She asked that the Council reconsidered the application.
22. On 14 April 2020 the Council responded to Mrs X’s request for a review of the decision. The Council stated Y did not meet the automatic eligibility criteria, so his application was considered under the DfT’s “subject to further assessment” criteria. The Council stated it found that Y’s difficulties and risks were not related to “the journey from a vehicle to a destination” or “related to walking”. It also considered the risks did not occur as frequently as “more often than not”. The Council stated as the evidence submitted did not support the acceptance of the application, it had not found it necessary to contact health professionals for more information.
23. Mrs X complained on 28 April. She listed information from Y’s EHCP and the views of a home-start volunteer which she considered met each point of the criteria. Mrs X also enclosed information from Y’s epilepsy consultant showing a need for constant supervision. She asked for more detail about why the information provided was considered invalid. She considered the decision was discriminatory because the Council made it impossible to prove entitlement.
24. The Council stated that it assessed applications against the government criteria and guidance equally and fairly to all applicants. They stated at this time Y did not meet the eligibility criteria which the DfT described as a ‘high threshold’. The Council stated the further information provided did not change that decision.
25. A complaint investigation report dated 8 May set out the consideration given to the issues Mrs X raised. It set out why it considered the points raised by Mrs X did not meet the criteria for a Blue Badge. The Council noted that it was not essential for a local authority to request more information about an application as the onus was on the applicant to provide information. However, in contentious cases there may be benefit in taking the step of contacting professionals. The Council also noted that its letters could have contained more information about why the information provided did not meet the criteria. However, the Council upheld its decision without writing to professionals. It considered the decision was made in accordance with the DoT guidance and there was no evidence of discrimination.
26. On 13 May the Council wrote to Mrs X. It stated unfortunately there was not enough information from professionals to confirm that Y suffers from “very considerable psychological distress”, “more often than not”, “when walking during the course of a journey”. Therefore, it considered the decision was correct. The Council noted a volunteer had given examples of how Y met the criteria, but these were not reflected in the psychology report provided. It noted a need for close supervision but it stated, as a young child, Y would always be accompanied, so there would already be measures in place to minimise the risk.
27. The Council provided us with a spreadsheet which it says documents its approach to assessment. The spreadsheet lists tasks that different teams should take once decisions have been made. For example, ordering a badge for someone found to be automatically eligible, and what letters should be issued by staff if a desktop assessment finds that someone not eligible. The focus is on the tasks required after decisions, rather than how decisions will be reached or how the Council will determine what approach is the correct one to follow.

Was there fault by the Council

Documented Approach

28. Paragraphs 4.100 and 4.101 of government guidance state that councils should document their approach to assessing hidden conditions. This is so that, in the event of a dispute over a decision it has reached, a local authority can evidence why they believe the most appropriate mechanism has been used to determine eligibility.
29. The approaches referred to are when the Council may seek more information from the applicant or a health professional to verify information or seek more insight into an applicant’s conditions.
30. The documentation provided by the Council does not explain its approach to assessment, rather it details administrative tasks in the event of decisions made about eligibility. So, it is not clear from that guidance when it may seek more information or involve an expert assessor. So, I found the documented process lacked clarity about when more information may be sought.

The Council’s decisions in Mrs X’s case

31. I found there was some fault in the way the Council dealt with Mrs X’s application. Mrs X explained the reasons she considered Y met the eligibility criteria. However, when the Council responded to the initial application, it failed to adequately explain the reason for its decision. The letter to Mrs X stated there was no evidence Y had an ‘enduring and substantial disability’. It stated Y’s “behaviour is not related to walking”. Mrs X had explained why she considered her son met the criteria for a Blue Badge. I found that the Council’s response failed to provide sufficient explanation about why it took a different view.
32. However, in further correspondence the Council expanded on its reasoning. This explained that while Y had acknowledged difficulties, these were not related to his ability to walk or related to journeys. So, the Council did not consider the criteria were met. Y’s behavioural issues were noted and the need for supervision. However, the Council took the view that the need for supervision was not solely caused by Y’s difficulties – as all young children need to be closely supervised.
33. Blue badges allow people to park nearer to their destinations to keep walking to a minimum. So, the focus of the guidance is consistently on the impact of a condition (physical or hidden) that occurs when walking and as part of a journey. So, it was not fault for the Council to refer to and focus on this.
34. Government guidance states that councils should ensure that badges are only issued to residents who satisfy one or more of the eligibility criteria. It is the responsibility of councils to determine eligibility in line with the legislation. It is also clear that the threshold is high.
35. While I understand Mrs X strongly disagrees with the Council’s decision, the Ombudsman does not act as an appeal body and it is not our role to decide if Mrs X’s son qualifies for a badge. I can only consider if the Council decided the application correctly. I found after the decision was further explained, the decision the Council had reached was one it was entitled to make.
36. I have recommended the Council revisits the process guidance, to make it clearer when it will seek more information before deciding an application and when it is likely to seek an expert assessor’s view. However, I do not consider the absence of this guidance was a key factor in the Council’s decision in Mrs X’s case.

Agreed action

37. The Council should apologise to Mrs X for the failure to properly explain its original decision.
38. The Council should review the document that details its approach to considering Blue Badge applications to make it clearer for applicants why they believe the most appropriate mechanism has been used for determining the applicant’s eligibility.

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Final decision

39. There was fault by the Council in its original response to her application for a Blue Badge and in respect of its guidance that could better explain its approach to considering blue badge applications. However, I do not consider this caused significant injustice to Mrs X as the Council went on to explain its position further.

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Investigator's decision on behalf of the Ombudsman