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East Sussex County Council (16 008 740)

Category : Children's care services > Other

Decision : Upheld

Decision date : 29 Mar 2017

The Ombudsman's final decision:

Summary: The Council’s Blue Badge assessment for L did not fully consider the impact of her learning difficulties on her mobility or provide clear evidence she can walk the minimum distance. The Council agreed to reconsider her application to address these matters.

The complaint

  1. Mrs P complained that the Council did not approve her application for a Blue Badge for her daughter L. She stated the Council’s mobility assessment did not properly assess L’s walking ability or consider relevant information. She also felt the Council had not recognised how L’s learning difficulties affect her mobility and why, as her carer, she needs to park close to services. Mrs P was unhappy with how the Council considered her appeal against the decision and dealt with a complaint from L’s sister about the process.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

  1. I discussed the complaint with Mrs P and considered the information she provided.
  2. I reviewed the documents the Council supplied for my investigation, including the papers from L’s Blue Badge application, independent mobility assessment and appeal, and the Council’s complaint response.
  3. I referred to relevant legislation and guidance.
  4. I sent a draft decision to Mrs P and the Council and considered their comments.

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What I found

  1. The government’s Blue Badge Scheme helps disabled people with severe mobility problems to access goods and services by allowing them or a carer to park near their destination. The scheme provides parking concessions for Blue Badge holders. The legal criteria for qualifying for a Blue Badge are set out in the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000 (“the Regulations”).
  2. Local authorities are responsible for administering and enforcing the scheme. This includes assessing whether people are eligible for the badge. The Department for Transport issues guidance to councils for providing Blue Badges, The Blue Badge Scheme Local Authority Guidance (England) 2014 (“the Guidance”). This is not legally binding, but sets out what the government considers good practice, so most councils apply it to their schemes. The Ombudsman also refers to the Guidance when considering complaints about Blue Badge assessments.
  3. According to the Regulations, some people are automatically eligible for a Blue Badge, for example if they receive certain benefits or are registered blind. However, people may also be eligible if they fulfil other criteria, which are subject to assessment from councils. Most commonly, this is when the person:

Has a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking (Regulation 4 (2) (f))

  1. When deciding whether applicants meet this criterion, councils must use an independent mobility assessor, who is usually an occupational therapist. They conduct a face to face assessment with the applicant, which includes discussion of their medical conditions and observation of their mobility using different exercises. Having a certain medical condition does not in itself qualify an applicant for a badge; it is the effect of the condition or disability on the applicant’s ability to walk that is assessed.
  2. The Guidance identifies several factors that may be relevant for assessing whether an applicant has very considerable difficulty in walking. These include excessive pain, breathlessness, distance walked, speed, walking aids and outdoor walking ability. It states that if an applicant cannot walk 30 metres in total, then their walking ability is not appreciable and they can be deemed as having considerable difficulty in walking.
  3. People who have learning difficulties or mental health problems may qualify for a Blue Badge but only if they meet the criterion in the Regulations. The Guidance has no specific recommendations for assessing how cognitive or behavioural factors affect walking. It states that:

While …mental/cognitive/intellectual disabilities are not in themselves a qualification for a badge, people with these conditions may be eligible for a badge if they are unable to walk or have considerable difficulty in walking. Eligibility is not determined by the presence or absence of a particular diagnosis or condition. Provided that an applicant has a permanent and substantial disability, a local authority’s eligibility decision should be based on whether the applicant’s difficulty in walking meets the criterion in the regulations. Each application should be considered on its merits – not on a “one size fits all” basis (Guidance, Chap 4.4).

  1. The Council’s Blue Badge policy states that it will use a telephone or clinical assessment to decide whether a person meets the eligibility criterion in the Regulations. Its independent mobility assessment form uses categories suggested in the Guidance.

Mrs P’s Blue Badge application for L

  1. L is 17 years old. She has Down’s syndrome, autism and severe learning and communication difficulties. She also has stiff knee joints, sloped ankles and flat feet. L needs to be accompanied by an adult at all times and attends a special school. Mrs P is her main carer, supported by her husband.
  2. Under the benefits criteria in place before 2012, L was automatically eligible for a Blue Badge. However, following the change from Disability Living Allowance to Personal Independence Payments, this is no longer the case. When Mrs P applied to renew the badge in June 2016, the Council asked L to attend an independent mobility assessment.
  3. Mrs P took L to the mobility assessment in July and gave information on her behalf. The assessor asked for more details about L’s condition and how this affects her mobility. Mrs P said her posture and feet were the main reasons for her difficulty walking. She also explained that L sits down when she does not want to walk and uses a wheelchair when they go out.
  4. L was not able to understand the walking or balance tests that form part of the assessment, so she did not do them. However, she walked about 15 metres between the assessment centre and Mrs P’s car when leaving, which the assessor saw and timed as 8 seconds.
  5. The assessor sought information from professionals who work with L to give her more information for her decision. She recorded that L’s school teacher said she can walk but is reluctant to do so, even over short distances. She can only walk unaided from the classroom to the toilet, leans on walls in the school corridors and will not walk up stairs. The school uses a wheelchair to take L on trips and she also uses one for the short distance between the school bus and her house.
  6. The comments recorded from the school physiotherapist are that L does not like walking and does not walk consistent distances, but can move quickly at times. She also stated that L’s limited communication means it is difficult to know if she is in pain when walking. She suggested her reluctance may be due to sensory factors.
  7. The assessor’s analysis of this extra information was that, while L often uses a wheelchair, this appears to be due to choices she makes rather than considerable physical difficulty in walking.
  8. The Council’s assessment form has boxes with yes or no answers to decide whether an applicant is eligible for a Blue Badge. The categories cover being unable to walk more than 30 metres without discomfort, experiencing considerable difficulty due to the manner of walking or breathlessness, walking at an extremely slow pace and excessive pain. The assessor marked No for all the criteria. This meant L was not deemed eligible for a Blue Badge.
  9. The assessment outcome page states that L is ineligible for a Blue Badge because she can walk 30 metres, her manner of walking does not seriously affect her, she can walk faster than the minimum speed set by the Guidance and walking does not cause an immediate danger to her health.
  10. Mrs P appealed against the outcome of the assessment. She wrote a letter outlining L’s physical difficulties with walking in more detail and said she rarely walks more than 10 metres because she experiences discomfort. She explained that she needs to park near services for L to access them because can get upset in crowded areas, puts herself in dangerous situations by refusing to walk and is vulnerable when left alone. She questioned how the assessor found she could walk 30 metres. She also included a supporting letter from L’s GP.
  11. The team manager considered the appeal. She reviewed all the assessment documents, Mrs P’s letter and the information from professionals. Based on this information, she decided to uphold the decision not to award L a Blue Badge.
  12. The appeal decision letter repeats the details from L’s mobility assessment and refers to the extra information provided by Mrs P for the appeal. It states that, while L did not walk 30 metres, the assessor got further information from professionals about her mobility. The manager supports the assessor’s analysis that L is reluctant to walk rather than physically unable to do so. She concludes that, based on the information available, “the symptoms associated with her disabilities do not affect her physical mobility to the degree necessary in order to qualify for a badge”.
  13. At the same time as the appeal, L’s sister complained about the Council’s handling of L’s assessment. The team manager agreed to respond within five working days but this did not happen. However, following the Ombudsman’s involvement, the manager sent a full response in December and apologised for not doing so earlier. The response reiterates her view that the Council treated L’s application correctly.

Analysis

  1. The Council managed L’s Blue Badge application and appeal in line with its procedures and followed the suggestions for mobility assessments in the Guidance. However, when assessing applicants with mental or cognitive difficulties, the Guidance makes it clear there should be no “one size fits all” approach.
  2. L’s walking is affected by her learning difficulties and associated behaviours, as well as physical factors. Therefore, it was not appropriate for the Council to base its decision only on her physical capacity to walk. The criterion in the Regulations is an “inability to walk or very considerable difficulty in walking.” While this will usually be a physical difficulty, it could also be a difficulty caused directly by behavioural factors (for example, extreme anxiety or not being able to understand the need to walk). This is acknowledged by the Guidance, which confirms that people with conditions affecting their behaviour are assessed according to the same criterion. This does not mean they are only eligible if they also have physical problems. Rather, the test is that any permanent or substantial condition, mental or physical, can be considered, but only insofar as it affects walking ability.
  3. The assessor recognised it was not possible to conduct a full mobility assessment for L because she could not understand or take part. While she rightly sought further information, the decision and the appeal outcome were based on the criteria in the standard assessment, without a full analysis of L’s non-physical barriers to walking.
  4. L walked only 15 metres during the assessment and it is not clear how the assessor decided she can walk over 30 metres. There is no specific reference to her being able to do this in the comments from the professionals who know her, or from Mrs P. The information recorded is that she walks short distances and uses a wheelchair outside. The 15 metres of walking observed during the assessment is not deemed an appreciable distance under the Guidance, so this is not a sufficient basis for judging L’s walking speed or manner of walking. The assessor considered the observations of the other professionals as well, but they also appear to refer to short bursts of walking indoors. In my view, the Council has not identified enough evidence that L can walk over 30 metres outdoors without considerable difficulty.
  5. The Council’s assessment and appeal decision do not directly address how L’s Down’s syndrome and autism affect her walking. While they contain information about her symptoms, the focus is on her physical ability to walk. However, the evidence suggests that L’s difficulty in walking may be partly caused by her cognitive and communication problems, and associated behaviours. In my opinion, it was not appropriate to make a decision on the grounds that L is choosing not to walk, because the evidence for this is not clear. She has profound learning difficulties and the information presented indicates she may not have the capacity to make a conscious, reasoned choice about when and how far to walk. This appears to depend on her reaction to particular situations and other reasons that she cannot express verbally. The assessment does not contain any analysis of whether this would mean she has very considerable difficulty in walking.

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Agreed action

  1. The Council has agreed to reconsider L’s Blue Badge application so it can clarify the information about her physical walking ability and fully assess the impact of her learning difficulties on her mobility. The Council will use a different independent mobility assessor, who will visit L at school to observe her walking in a familiar environment. The Council will also review the information received from professionals and make further enquiries where necessary.
  2. It is important that the assessment provides evidence to substantiate any judgement about L’s ability to walk over 30 metres. The assessor should also consult the professionals working with L on whether she has the capacity to make choices about walking. The Council should demonstrate that it has carefully considered all the evidence about the impact of L’s physical and mental conditions in deciding whether her disability causes her “very considerable difficulty in walking” as prescribed in the Regulations.

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Final decision

  1. The Ombudsman identified fault in how the Council assessed L’s Blue Badge application. This caused her injustice, because its decision did not take sufficient account of her learning difficulties and was not fully supported by the evidence.
  2. The Council agreed to my recommended remedy, so I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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