Summary: Mrs X complains the Council failed to properly assess her blue badge application for her son in a timely manner and that it failed to make reasonable adjustments at the face-to-face assessment. The Council is at fault for failing to consider the request for reasonable adjustments and failing to provide detailed reasons for refusal of a blue badge. The Council has accepted our recommendations to remedy the injustice caused by making a payment to acknowledge the distress caused and it has agreed to make service improvements.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council did not assess her application for a blue badge for her son, Y, properly and it took too long to issue a blue badge.
2. Mrs X also complains the Council failed to consider her request for reasonable adjustments at the face-to-face assessment for the blue badge.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
6. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
7. 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, section 25(7), as amended)
8. 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)

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How I considered this complaint

9. I considered Mrs X’s complaint and the information she provided.
10. I considered the information the Council provided in response to my enquiries.
11. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Mrs X and the Council before making this final decision.

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What I found

Law and Guidance

Blue badges

12. The Department for Transport (DfT) has issued guidance to councils for providing Blue Badges. The Blue Badge scheme entitles drivers or passengers with mobility problems to park nearer to their destination.
13. In 2019, the DfT issued new guidance for councils. The main change from previous guidance was the introduction of assessment criteria to help people with severe mobility problems caused by non-visible (‘hidden’) disabilities.
14. To qualify for a Blue Badge, an applicant must be assessed by their council as either ‘eligible without further assessment’ or ‘eligible subject to further assessment’.
15. To be eligible for a badge, those people who are eligible subject to further assessment must fall within 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 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 a very considerable psychological distress; or
• be at risk of serious harm when walking; or pose, when walking, a risk of serious harm to any other person (The Disabled Persons (Badges for Motor Vehicles) Regulations, 4(2)(f)).
16. The DfT expects that, in the context of disabilities that are predominantly non-visible (‘hidden’) in nature, a risk of serious harm to self/others could manifest as one or more of the following behaviours:

• becoming physically aggressive towards others, possibly without intent or awareness of the impact their actions may have
• refusing to walk altogether, dropping to the floor, or becoming a dead-weight
• wandering off or running away, possibly without awareness of surroundings or their associated risks (for example, nearby roads, car park environments)
• disobeying, ignoring and/or being unaware of clear instructions
• experiencing very severe or overwhelming anxiety (for example, through hypervigilance)
• experiencing an overwhelming sense of fear of public/open/busy spaces
• experiencing serious harm or causing harm to others
• avoiding some/all types of journeys due to the kinds of experiences listed above

17. This list is not exhaustive and local authorities will need to satisfy themselves that the risk of serious harm to self or others when walking, during the course of a journey, is caused by an enduring and substantial disability.
18. The disability experienced by the applicant must be endured, or be expected to endure, for at least three years. In respect of children the guidance recognises that some of the listed behaviours may be exhibited ordinarily by children who do not have any enduring or substantial disability. It is therefore important for local authorities to consider the extent of any such behaviours and/or difficulties experienced by an applicant in relation to common developmental milestones.
19. It says local authorities will also need to be satisfied that such difficulties cannot otherwise be managed through reasonable coping strategies. For example, where an applicant would only ever be accompanied by another person and that negates ‘very considerable’ difficulty, a badge would not help the applicant. In considering coping strategies, local authorities should consider whether existing strategies are being adopted and are effective.
20. In respect to both physical disabilities and non-visible conditions, where a council cannot reach a view based on the applicants’ evidence, it would be expected to appoint an expert assessor (The Blue Badge Scheme Local Authority Guidance, 4.27).
21. The guidance strongly recommends that every applicant who is refused a blue badge should be given a detailed explanation of the grounds for refusal and it is not enough to simply state the applicant did not meet the eligibility criteria.
22. The final decision rests with the council to decide if an applicant meets the eligibility criteria for a Blue Badge. Councils must consider each application solely on its merits and on application of the scheme’s eligibility criteria.

Public sector equality duty

23. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.
24. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

The Equality Act 2010

25. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
26. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
27. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

Reasonable adjustments for people with disabilities

28. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
29. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
30. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

31. What follows is not an exhaustive list of every event that occurred. It is a summary of events relevant to the investigation.
32. Mrs X’s son, Y, is 6 years old and has a diagnosis of Autism Spectrum Condition (ASC), sensory processing condition, learning difficulties and a history of seizures. Y has an Education, Health and Care (EHC) plan that is maintained by the Council. Y’s EHC plan identifies the need for ‘visual strategies to support [Y’s] understanding’ and it refers to the importance of visual cues and schedules to support his emotional regulation.
33. Mrs X had a blue badge for Y but due to its expiration, she requested to renew it in June 2021. With the application, Mrs X submitted supporting evidence including Y’s EHC plan and relevant medical evidence.
34. Company B, who processes blue badge applications on behalf of the Council, conducted a desk-based assessment of the application and wrote to Mrs X in July 2021 declining her application. It said, ‘the assessor has concluded that there is insufficient evidence to support issuing a blue badge’.
35. Mrs X appealed the decision, and a telephone assessment was undertaken in August 2021. The Assessor asked questions about Y’s behaviour and how his medical conditions affect him. The Assessor considered the medical information Mrs X had submitted and Y’s EHC plan.
36. In August 2021 Company B wrote to Mrs X to advise it remained of the view Y did not meet the criteria for a blue badge. It said that although the medical information confirmed Y had a disability, it did not demonstrate that his condition would continuously and severely affect his functional mobility on a daily basis to such an extent that he cannot walk or that he would have very considerable difficulty in walking.
37. The Council had put a hold on face-to-face assessments due to COVID-19. Mrs X was advised that if she was unhappy with the decision she could ask for it to be reviewed in a face-to-face assessment when the mobility clinics reopened.
38. The mobility clinics reopened in April 2022. Mrs X was unable to attend the face-to-face assessment in April 2022 because she had tested positive for COVID-19. It was re-arranged for May 2022.
39. Mrs X emailed Company B on 6 April 2022 requesting reasonable adjustments for the face-to-face assessment. She requested a visual story for Y due to his ASC. Visual stories are a useful tool for children with ASC. They explain what is going to happen and when, which can help young children who find it difficult to regulate their emotions.
40. Mrs X also advised Company B that her husband would attend the assessment to help and support her with Y.
41. Company B responded after an hour of receiving Mrs X’s request for reasonable adjustments. It apologised it did not have a visual story for the assessment and due to COVID-19 restrictions, only one person can accompany Y in the assessment.
42. On the day of the assessment, both Mr and Mrs X attended with Y. The assessment was undertaken outside. Y was visibly distressed and crying whilst they were walking outside. Mrs X says she and her husband found the assessment traumatic.
43. Based on the observations from the face-to-face assessment, the Assessor decided Mrs X was eligible for a blue badge for Y.

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Analysis

Y’s application for a blue badge

44. Our role is to consider whether the Council followed the correct procedure and gathered and considered all relevant information when deciding Mrs X’s application for Y’s blue badge. It is not to decide if Y should be awarded a blue badge. If we find the Council acted with fault, we must decide if that caused an injustice and what the Council should do to put it right.
45. The Council uses Company B to assess its blue badge applications. For the avoidance of any confusion, from here on, I will refer to Company B as ‘the Council’.
46. The DfT guidance strongly recommends that every applicant who is refused a blue badge should be given a detailed explanation of the grounds for refusal and it is not enough to simply state the applicant did not meet the eligibility criteria. The decision letter sent to Mrs X in July 2021 provides no detailed explanation for refusal. This is fault.
47. I consider the lack of a more detailed explanation of the refusal has caused Mrs X an injustice. It affected her ability to support her resulting review request and understand fully what further information she may have to present to the Council. The lack of explanation meant Mrs X has been concerned that her application was not considered properly.
48. The July 2021 decision letter sent to Mrs X repeatedly uses the words ‘appeal’ and ‘review’ interchangeably. The decision letter stated there was no ability to appeal the decision but a review could be requested. It then goes on to advise the applicant they have four weeks to appeal. This is confusing for the reader in understanding the process.
49. Mrs X is unhappy with the length of time she had to wait for a face-to-face assessment. She requested an assessment in August 2021, but it did not take place until May 2022. The Council has explained that face to face assessments were initially suspended during the height of the pandemic and then for a further period when the new variant was at its worst. It says that clinics were resumed when it was deemed safe to do so. In March 2022 the Council decided to resume face to face assessments after Easter. This affected all applicants and the Council’s intention was to not put anyone at risk of coronavirus. I appreciate Mrs X was without a blue badge during the time she had to wait for a face-to-face assessment but I do not find the Council at fault for the decision it made regarding putting a hold on face to face assessments.
50. Mrs X feels the medical evidence she submitted was ignored by the Council and it was unfair of the Council to ask for additional evidence in support of the measures in place to counter the occurrences when Y displays unsafe behaviours. Blue badges allow people to park nearer to their destinations to keep walking to a minimum. The focus of the guidance is on the impact of a condition (physical or hidden) that occurs when walking and as part of a journey. Therefore, it was not fault for the Council to refer to and focus on the impact of Y’s health conditions and any reasonable coping strategies adopted. Also, the telephone assessor’s notes demonstrate the supporting medical evidence Mrs X submitted and also Y’s EHC plan were considered when making a decision. Therefore, I do not consider the Council ignored the medical information Mrs X submitted
51. I also do not find the Council at fault for conducting the assessment outside. It is important for the assessment to be conducted in an environment the applicant may venture during the normal course of their day to see how they mobilise. I appreciate the assessment was a difficult experience for Y and his parents and I acknowledge the likelihood of the assessment being less stressful if reasonable adjustments had been made (I have addressed the request for reasonable adjustments separately below).
52. Mrs X is of the view that many blue badge applications have been wrongly refused by the Council where the applicant has a ‘hidden disability’. 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. Each case is considered on its own merits. It is also clear that the threshold is high. Additionally, those who feel their applications have been wrongly refused, the Council’s review process and complaints process are available for them to pursue, if they so wish.

Reasonable adjustments

53. Mrs X made her initial request for reasonable adjustments on 6 April 2022. She explained that her son had Autism, a visual story would help him prepare for the assessment and her husband would be attending the assessment to help her support Y. In its response to my enquiries, the Council said it was unaware of the request for reasonable adjustments and if it was forwarded to the Council, it would have done its best to accommodate it.
54. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
55. The Council should have considered its duties under the Equality Act to make its service accessible to Y. There is no evidence the request was properly considered and there is no evidence the Council contacted Mrs X to explore the request before making a decision. It simply refused. Therefore, I find fault with the Council for failing to have due regard to its duty under the Equality Act 2010.
56. Y suffered an injustice as a result of the fault as the process caused him anxiety and stress. Mr and Mrs X were also caused anxiety and stress.
57. When someone has suffered an injustice, we try to put them back in a position they would have been in had the fault not occurred. However, the Council has since issued Y with a blue badge therefore consideration of Mrs X’s request for reasonable adjustments and the arrangement of another assessment would not be appropriate in these circumstances. I consider recommendations for service improvements are more appropriate in this case.
58. In response to my draft decision, the Council advised that it has terminated the contract with Company B and has instead awarded the contract to Company C. Therefore, for the avoidance of any confusion, the service improvements now apply to Company C (or any other company/provider the Council instructs to act on its behalf).

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Agreed action

59. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will apologise to Mrs X and pay her £300 for the avoidable distress and frustration caused to Y by failing to consider the request for reasonable adjustments.
60. Within 12 weeks of this final decision the Council has agreed to:
• provide evidence of the reasonable adjustment policy used by Company C when acting on its behalf;
• review Company C’s practice of identifying, considering and responding to requests for reasonable adjustments;
• remind relevant staff of the proactive duty to make reasonable adjustments under the Equality Act and ensure this is communicated to applicants; and
• ensure the relevant decision letters sent to applicants are correct in advising them of the options available to them if they wish to appeal or request a review of a decision.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have now completed my investigation. I find fault with the Council for failing to explain its reasons for refusal of a blue badge. I also find fault with the Council for failing to have due regard to its duty under the Equality Act 2010. The Council has agreed to remedy the injustice caused by the faults and make service improvements.

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Investigator's decision on behalf of the Ombudsman