Summary: Mrs B complains the Council did not approve her application for her daughter’s blue badge. She says her daughter has autism and struggles to access the community without a blue badge. The Ombudsman finds fault in how the Council assessed Mrs B’s application and considered her request for a review.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council did not approve her application for her daughter’s blue badge. Mrs B’s daughter has autism. She says when her daughter, who I refer to as C, gets into big crowds she gets agitated, out of breath and needs to calm down. She says a blue badge allows her to park where the car will remain nearby.

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The Ombudsman’s role and powers

2. 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)
3. 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 considered the information Mrs B provided and discussed the complaint with her on the telephone. I then made enquiries of the Council. I sent a copy of my draft decision to the Council for their comments.

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What I found

Legislation and Guidance

6. The Disabled Persons Parking Badge Scheme (known as the “Blue Badge scheme”) was introduced in 1971. The Government later published The Disabled Persons Badges for Motor Vehicles (England) Regulations 2000 (“the Regulations”). The Regulations say a person is eligible for a blue badge if they have a permanent and substantial disability that causes inability to walk or very considerable difficulty walking.
7. In 2014 the Department for Transport (“DfT”) issued guidance for councils on the Blue Badge scheme (“the Guidance”). This guidance was in place at the time Mrs B applied for a blue badge. It says a person qualifies for a blue badge ‘without further assessment’ if they received:
• the higher rate of the mobility component of Disability Living Allowance (“DLA”); or
• eight points or more under the “moving around” activity of the mobility component of Personal Independence Payment (“PIP”).
8. If the person does not meet the above criteria, they may be eligible ‘subject to further assessment’. An independent mobility assessor decides if the person is eligible. However, the council does not need to use an independent mobility assessor if it is self-evident applicant meets the eligibility criterion. That meaning, the applicant is clearly eligible or ineligible.
9. The Guidance recognises that some councils have developed desk-based assessment tools. It says:
• whilst desk-based assessments have a role as a filtering mechanism to identify applicants who are clearly eligible or clearly ineligible for a badge, they cannot be successfully used as the sole means of determining all applicants' eligibility for a badge. Local authorities should refer an applicant for an independent mobility assessment if they are unable to make a clear and robust decision on eligibility using cross-checking or desk-based assessment, i.e. if eligibility is not self-evident.
10. The independent mobility assessor may decide whether someone is eligible based on factors such as distance, speed, pain, breathlessness and use of walking aids. The Guidance says:
• Whilst 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. 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.
11. The Guidance strongly recommends councils establish an internal procedure to deal with appeals, which needs to be clear, straight forward and fair. It strongly recommends councils give every applicant who is refused a badge a detailed explanation for the grounds of refusal. It says the Ombudsman considers a failure to put in place a proper appeal mechanism or give detailed reasons would likely result in an adverse finding.
12. The DfT have now issued new regulations and updated guidance (“the 2019 Guidance”), which came into effect in August 2019. This new guidance provides for people with ‘hidden disabilities’ such as autism. It says people will be eligible without further assessment if they receive:
• the mobility component of PIP and has obtained 8 points or more under the “moving around” activity; or
• the mobility component of PIP and has obtained 10 points specifically for Descriptor E under the “planning and following journeys” activity, on the grounds that they are unable to undertake any journey because it would cause them overwhelming psychological distress; or
13. The 2019 Guidance also says a person may be eligible subject to further assessment if they are:
• unable to walk;
• experience very considerable difficulty whilst walking, which may include 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.

Background

14. In early 2019 Mrs B applied for a blue badge for C. She initially applied on the basis C automatically qualified due to having more than eight points in the mobility component of PIP. However, none of these points were under the ‘moving around’ section, so she did not automatically qualify. The Council therefore told Mrs B she would need to apply subject to further assessment.
15. The Council asked Mrs B to complete an online form. Mrs B said on the form that C would get out of breath after walking a few steps, panic and have anxiety attacks because of her autism.
16. I have outlined below, the sections and Mrs B’s responses that I consider are most relevant to my decision on this complaint:
• Under the section ‘Struggle with longer distances or hills:’ Mrs B said, ‘No’.
• Under the section ‘Get breathless after a few minutes:’ Mrs B said, ‘Yes’.
• Under the section ‘Walk outside without help:’ Mrs B said, ‘No’.
• Under the section ‘How do they walk:’ Mrs B said, ‘Adequate with a slight limp’.
• Under the sections ‘Get short of breath on hills:’, ‘Get short of breath on the level:’ and ‘Stop for breath on level ground’ Mrs B said, ‘Yes’.
• Under the section for distance Mrs B said C could walk ‘3 metres in 2 minutes’.
17. The Council has a scoring system for the form. If the score adds up to more than 20 points the person is eligible for a blue badge. If it is below 20 points the application is passed to an Occupational Therapist (“OT”) to review. Mrs B scored 18 points, so the Council passed her application to an OT.
18. The OT reviewed the answers to Mrs B’s application and found she was not eligible for a blue badge. The OT said there was no supporting medical history of a significant and permanent mobility problem. The OT said Mrs B answered that C does not struggle with long distances and hills and there were inconsistent entries.
19. The Council wrote to Mrs B to say it declined her application on the following grounds:
• ‘There is no supporting medical history in the application that supports a significant and permanent mobility problem that would meet the DfT eligibility criterion
• You have stated you do not ‘struggle with long distances or hills’
• There is no evidence of receipt of Personal Independence Payment or Disability Living Allowance’
20. The Council’s website said the applicant may request a review. It said an occupational therapist will review all available information and decide to approve the badge, refuse it or seek further assessment. In its response to our enquiries the Council said its customer delivery team will assess the further evidence received and only pass it on to an OT if the information supports a significant and permanent problem with mobility.
21. Mrs B asked the Council to review her decision. In her review request Mrs B said again that C panics and gets out of breath when far from the place of travel. She said this severely affects her mobility.
22. The Council says Mrs B’s review request did not support a significant and permanent problem with mobility, so it did not refer the request to an OT. It upheld the OT’s original decision. It wrote to Mrs B and said that hidden disabilities such as autism are not yet accepted as an eligibility criterion, so she was not eligible for a blue badge.

Findings

23. I find fault in how the Council considered both Mrs B’s application and her request for a review.

Application

24. The Council says Mrs B applied for the blue badge solely based on C’s autism. It says hidden disabilities are not covered by the old regulations and guidance, so Mrs B was not eligible.
25. I accept that autism was not an eligibility factor in of itself. However, the Guidance was clear that it was not a bar to eligibility. If C’s autism meant she had significant difficulty walking in line with the criteria, then she should still have been eligible. The Council needed to consider her ability to walk in the same way it would consider those who had physical disabilities.
26. The Council has made its decision on C’s ability to walk based Mrs B’s answers to an online form, rather than a face to face, independent mobility assessment. It is clear from the Guidance that this may be appropriate when the Council can, from the information it has, decide someone is clearly eligible or ineligible. It should give detailed reasons for why it considers the applicant is clearly ineligible.
27. I cannot see any evidence the Council has set out why C is clearly ineligible for a blue badge. I accept there is some inconsistency in Mrs B’s answers. She says C does not struggle with long distances or hills, then goes on to say she becomes breathless on hills and cannot walk more than three metres in two minutes. However, this inconsistency on one section, does not provide evidence that C is clearly ineligible.
28. Mrs B has stated repeatedly on the form that C becomes breathless and this physically impacts on her ability to walk when outside. Breathlessness is a relevant factor that an independent mobility assessor should consider when assessing an applicant. Neither the OT’s decision statement nor the Council’s outcome letter addresses this. The Council has not explained why, considering this information, C is clearly ineligible, and an independent mobility assessment would not make any difference.

Review

29. The Council’s website says that, following a request for a review, an OT will review all of the information available and make a decision on eligibility. It does not make it clear that it will not treat all requests for a review in this way. However, in its response to us the Council says that it will only pass the review to an OT if officers in its customer delivery team consider the appeal provides evidence of a significant problem with mobility.
30. I struggle to see the logic in the Council saying it will only pass the review to an OT if the person provides this evidence. The question of whether a person has a significant and permanent problem with mobility is what the assessment is there to determine. The applicant will request a review if they consider they have already provided evidence of this and the assessor has not properly considered it.
31. It may be good practice for councils to ask the applicant to provide additional information in support of their review request. However, any review should look at the original assessment, not just the additional information from the applicant.
32. Mrs B requested a review on the basis the Council had not properly considered how C’s autism affected her mobility, including breathlessness. It does not appear the Council has in any way reviewed how the original OT considered the information Mrs B provided. It has again simply focused on the fact hidden disabilities were not yet recognised. However, just because the problems Mrs B describe result from C’s autism, does not mean in of itself that she is ineligible, if they cause her physical problems with walking.
33. The Guidance says councils may put in place the appeal procedure it chooses. However, it makes clear the Ombudsman is likely to find fault where this is not clear, straightforward or fair. I consider the lack of clarity on the Council’s website about when it will pass a review request to an OT is fault. I also consider it is fault to uphold an original decision without any review of how the original decision was made.

Remedy

34. I recommend the Council apologise to Mrs B for not properly considering the information in her application form or setting out detailed reasons as to why it considered this meant C was clearly ineligible for a blue badge.
35. If the same guidance was still in place, I would recommend the Council reassess C and consider whether to refer her for an independent mobility assessment. However, given the recent change in the regulations and guidance, I consider the best way forward is for Mrs B to reapply for a blue badge. This way the Council can consider her under the new criteria, which alters the position on how councils treat hidden disabilities.
36. I recommend the Council pay Mrs B £100. This is to recognise the loss of service and the uncertainty it will have caused for Mrs B in not knowing whether the Council would have conducted a mobility assessment, but for the fault.
37. I also recommend the Council review its appeal procedure to ensure any review looks at the original decision. I recommend the Council update its website to set out clearly, who will consider the review request and when it will pass the request through for further assessment by an OT.

Council’s position

38. The Council has agreed to the recommendations. It says it appreciates the way it communicated its decision may have conveyed a sense of finality. The Council says Mrs B could have come back with further information in support of her application. However, the Council does not agree it should have offered Mrs B a mobility assessment as the evidence was so lacking. It says it gave Mrs B further opportunity to engage and she did not.
39. I remain of the view there was fault in not offering a mobility assessment. Mrs B had provided medical evidence of her daughter’s autism and answered the questions on the Council’s form. Her scores were high enough to be assessed further by an OT. The OT’s assessment did not set out any reasons that C was clearly ineligible. The Council has not set out what further information it would have expected Mrs B to provide. The Council still did not do a face to face assessment when Mrs B asked to appeal the decision.
40. In the circumstances, I have decided to close the case and set out the Council’s disagreement as above. The Council has agreed to the recommendations and there would not be enough value in investigating the complaint further, when any new applications will be assessed under different guidance going forward.

Agreed action

41. The Council has agreed that, within a month of this decision, it will:
• Apologise to Mrs B
• Pay Mrs B £100 for the loss of service and uncertainty
42. And within three months:
• Review its blue badge appeal procedure to ensure any review looks at how the original decision was made and set out the procedure clearly on its website.

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Final decision

43. I will close this case on the basis the Council is at fault in how it assessed Mrs B’s application and considered her request for a review.

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Investigator's decision on behalf of the Ombudsman