Swindon Borough Council (18 012 283)

Category : Children's care services > Other

Decision : Not upheld

Decision date : 21 May 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about the Council’s decision not to renew their child, A’s blue badge. Mr and Mrs X said the Council failed to properly consider A’s autism in making its decision. The Council was not at fault. It considered A’s autism, applied the relevant guidance correctly and decided A did not meet the criteria for a blue badge. The Department for Transport is releasing new blue badge guidance during 2019 which would contain specific criteria for people with ‘hidden disabilities’ such as autism. However, we cannot criticise the Council for failing to consider unpublished government guidance.

The complaint

  1. Mr and Mrs X complain about the Council’s decision not to renew a blue badge for their child, A, who is on the autistic spectrum. Mr and Mrs X said the Council failed to properly consider A’s disability. Mr and Mrs X said the decision leaves A unsafe and vulnerable in parking areas.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mrs X about the complaint.
  2. I considered the Council’s response to my enquiries.
  3. I considered the Department for Transport guidance on the blue badge scheme.
  4. I considered the information provided by Mr and Mrs X.
  5. I wrote to Mr and Mrs X and the Council with my draft decision and gave them an opportunity to comment. Neither the Council or Mr and Mrs X provided any comments.

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What I found

  1. The Department for Transport (DfT) issues guidance to councils about providing blue badges to people with disabilities. The guidance has specific criteria for assessing an applicant’s eligibility.
  2. This government guidance document is not statutory, so councils do not have to follow it. However, it provides examples of good practice which councils may choose to consider and apply when assessing Blue Badge applications.
  3. The guidance sets out two types of eligibility criteria for issuing blue badges: ‘Eligible without further assessment’ and ‘Eligible subject to further assessment’. To qualify under the latter an applicant must meet one or more of the following descriptions:
    • 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
    • Has a permanent and substantial disability that causes inability to walk or very considerable difficulty in walking.
  4. The guidance states medical conditions such as autism “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 very considerable difficulty in walking. Eligibility is not determined by the presence or absence of any particular diagnosis or condition.” The Guidance states “a local authority’s eligibility decision should be based on whether the applicant’s difficulty in walking meets the criterion in the regulations.”
  5. The guidance says the person will need to show, because of their permanent and substantial disability, they cannot walk very far without experiencing severe difficulty. It says, “If an applicant cannot walk 40 metres (44 yards) in a minute (a pace of less than 0.67 metres/second), including any stops to rest, then this is an extremely slow pace which is likely to make walking very difficult when considered in isolation”.
  6. Applicants who can walk more than 80 metres and do not display considerable difficulty in walking because of other factors are not eligible.
  7. If the council refuses a blue badge it must write to the person to explain its reasons. If the applicant is unhappy with the decision they can ask the council for a review.

Proposed guidance changes to consider hidden disabilities

  1. In 2018 DfT undertook a consultation about changes to the Blue Badge eligibility criteria. This was specifically because of the issue of ‘hidden disabilities’ such as autism which do not necessarily affect a person’s mobility, but can make it difficult or dangerous for them to walk long distances, or in certain circumstances where their condition caused them considerable difficulty travelling.
  2. After the end of this consultation the DfT said it intended to amend the guidance, to include additional eligibility criteria for people with ‘hidden disabilities’, in 2019. However, the guidance is yet to be published at the time of writing.

What happened

  1. Mr and Mrs X have a child, A, who has autism. A had a blue badge which expired in April 2018. Mr and Mrs X applied to the Council to renew A’s blue badge in March 2018. The Council wrote to Mrs and Mrs X and said it had considered their application but said A did not meet the criteria to renew the blue badge. It said A’s disability did not cause an inability to walk or present A with a considerable difficulty in walking.
  2. Mr and Mrs X wrote to the Council and appealed its decision and in June 2018 A attended a face to face assessment with an independent Occupational Therapist (OT). The assessment included a discussion with Mr and Mrs X about A’s medical condition, and a mobility assessment. Mr and Mrs X provided a letter from A’s disability nurse who said A’s autism meant they had a reduced awareness of danger and had a history and running into busy roads.
  3. During the assessment, the OT recorded A’s walking speed and whether walking caused A any pain or breathlessness. The OT noted A’s autism and the reasons why Mr and Mrs X want a blue badge for them. The OT said A’s autism affected safety rather than their walking ability, and therefore A did not meet the criteria for a blue badge.
  4. Mr and Mrs X complained to the Council. They said it had not been specific about the reasons why it refused to renew A’s blue badge. They said the Council had not properly considered A’s autism.
  5. The Council responded to Mr and Mrs X. It said the current blue badge guidance was based on the mobility of the applicant. It said it carried out an assessment to measure A’s walking ability following Mr and Mrs X’s appeal. The Council said the OT did consider A’s autism but decided they did not meet the criteria for a blue badge. The Council said new blue guidance was due during 2019 which would include additional criteria for people with ‘hidden disabilities’ such as autism. However, as the new guidance was not yet released, it would continue assessing applications in line with the current guidance.
  6. Mr and Mrs X remained unhappy with the Council’s response and again asked it for the reasons why it refused A a blue badge. Mr and Mrs X said A’s condition was unchanged since the Council previously granted them a blue badge in 2015.
  7. The Council wrote to Mr and Mrs X and said it had discussed A’s case with the OT and had reviewed the assessment and associated paperwork. The Council said both it, and the OT remained of the opinion that A did not meet the criteria for a blue badge. It said a disability whether physical or not, does not give any person an automatic right to a blue badge. The Council said it would not re-consider A’s application again.
  8. Mr and Mrs X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

  1. Mr and Mrs X’s complaint is that the Council did not properly consider A’s autism when it refused to renew their blue badge.
  2. The records from the assessment show A walked unaided at a normal pace, without any pain. The OT recorded the reasons why Mr and Mrs X believed A needed a blue badge, and considered the supporting information and letters from A’s medical practitioners. The OT considered A’s autism, decided it affected their safety rather than their walking ability. Based on that, the Council decided not to issue A with a blue badge. The OT carried out the assessment in line with the DfT guidance at the time of writing and was not at fault.
  3. My role is review whether the Council has followed the correct processes in making its decision. The Ombudsman is not an appeal body, and we cannot criticise a Council’s decision unless there was fault in the process. The Council considered all relevent information provided by Mr X and applied the guidance correctly. It carried out an assessment on A, considered A’s autism, the supporting information and decided A was not eligible for a blue badge. The guidance states that ‘each application should be considered on its merits – not on a ‘one size fits all’ bases’. The Council was not at fault.
  4. The current guidance does not contain specific criteria for people with ‘hidden disabilities’ such as autism. In 2018 the DfT undertook a consultation on proposals to specifically include criteria for people with ‘hidden disabilities’. The Government will publish the new guidance in August 2019. While the consultation implied what the guidance may include, I cannot criticise the Council for failing to consider, or apply guidance before it was published. Therefore, the Council was not at fault.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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