Summary: The complainant, Mrs Y, complains about the Council’s decision to refuse the application for her son, C, to receive a blue badge. The Ombudsman finds the Council did not follow government guidance when considering C's application. Its decision-making also lacked impartiality and transparency. The Council will assess C’s application again, apologise to Mrs Y for the avoidable time and trouble she experienced and arrange refresher training for the officers making blue badge decisions.

The complaint

1. The complainant, whom I will call Mrs Y, complains the Council did not follow the process recommended by the Department for Transport when assessing her son, C, for a blue badge.
2. As a result, Mrs Y says that C has not received the blue badge which she believes he is entitled to.

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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. 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. During my investigation I discussed the complaint with Mrs Y, made enquiries of the Council and considered its response. I also consulted the relevant policies, law and guidance around blue badge eligibility.
6. I issued a draft decision and invited comments from Mrs Y and the Council which I considered before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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What I found

What should happen

8. 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.
9. The DfT updated its guidance in August 2019 to ensure that difficulties experienced by people with non-visible disabilities are considered by councils when determining the eligibility for blue badges.
10. To qualify for a blue badge, an applicant must be assessed by their council as either ‘eligible without further assessment’, previously known as automatic eligibility, or ‘eligible subject to further assessment’, previously known as discretionary.
11. The guidance says that people may be issued with a badge, following further assessment, if they are:
• “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”
12. If the Council cannot determine whether the applicant falls into the category as described above, it can make a referral to an expert assessor for ‘certification’. The Council is not required to seek expert assessment in all cases. The guidance describes times when it may not be appropriate: “… this approach is considered less likely to yield the required insight into how the applicant’s disability affects them whilst walking during the course of a journey, and may therefore be less appropriate for persons who, whilst walking, experience very considerable psychological distress and/or present a risk of serious harm to themselves or others.
13. If the Council decides not to issue a blue badge, the regulations say it must notify the applicant, in writing, of the reasons for refusal. The DfT ‘strongly recommends’ that every applicant is given a ‘detailed explanation’ of the grounds for refusal. Councils should not simply state in their refusal letter that the applicant did not meet the eligibility criteria.
14. The guidance goes on to say: “DfT recommends that in such situations there should be provision for the dissatisfied applicant’s case to be reviewed by the issuing authority, preferably by someone who was not directly involved in the initial decision”. When reviewing applications, the Ombudsman expects councils to adhere to our guidance, ‘the Principles of Good Administrative Practice’ which says that councils should keep proper and accurate records and give reasons for their decisions. They should have clear and accessible appeal routes and provide timely advice on how and when to appeal or complain.

What happened

15. Mrs Y has two sons, whom I will call B and C. B is eight years old, and C is six. They both have special educational needs and an Education, Health and Care Plan (EHCP). In August 2019 Mrs Y applied to the Council for blue badges for both boys due to their ‘hidden disabilities’. The DfT guidance was updated at this time to ensure that all councils considered the impact of hidden disabilities on a person’s ability to walk safely to and from their parked car.
16. The Council granted a blue badge for B on appeal. But it did not grant a blue badge for C. The process followed in C’s case is therefore the subject of this investigation.
17. In her application for C’s blue badge, Mrs Y said:
• C lacks awareness of danger and does not understand the consequences of his behaviour. He cannot control his impulses and will sometimes run into traffic.
• C sometimes needs to retreat inside the family car for ‘safe space’. He sometimes throws open the car door with no awareness of his surroundings, causing damage to both the family’s car and any vehicle parked next to it. Mrs Y therefore needs to park in wide spaces.
• C has mobility issues due to his medical diagnosis. At the beginning of the day he can sometimes walk short distances, but at the end of the day he will need to use a specialist pram or be carried by a parent.
• The specialist pram is bulky and takes up lots of space.
• C wears special orthotic boots to aid walking.
18. The Council refused the application for C on 19 November 2019: “The evidence supplied by the Consultant Paediatrician states that although [C] does have physical and emotional issues the frequency of these are only occasional and the challenges you do encounter are not ‘more often than not’ or enduring and substantial, in Blue Badge terms. Your application states that [C] requires 1:1 supervision. The Department for Transport guidance states that where the presence of someone supporting the applicant negates the risk and reduces or prevents the psychological distress, then the person is unlikely to qualify for a Blue Badge. In this case, there is insufficient evidence to support issuing a badge. The legislation is specifically in place to help people where their psychological distress and/or risk of harm is unmanageable and therefore cannot be mitigated”
19. Mrs Y asked the Council to review its decision. Mrs Y reiterated:
• She needs to be close to any destinations she drives to, to avoid walking across busy carparks. Disabled bays are often next to the pavement.
• She needs extra space around the car for when B and C have ‘meltdowns’ because they ‘lash out’ and hurt themselves and others. They kick car doors and try to run into the road.
• C will sometimes need to ‘retreat’ to his safe space in the car to calm down.
• C uses a specialist chair which takes up extra room
• C becomes stressed and can experience a sensory overload in busy car parks. It is less stressful for the boys to park closer to their destination so they can get inside quickly
• Disabled bays provide more space for Mrs Y to deal with B and C’s behaviour and it is easier to get them back into the car when needed.
20. An internal email from the officer who refused C’s application, said: “I can look again at the new evidence and make a decision if you feel this is the right path but from the parent point of view I could be upholding my own decision”.
21. In February 2020, the Council decided to grant a badge to B at appeal but maintained its view that C did not meet the criteria. The Council’s refusal letter stated: “In considering all the evidence available, we noted that Josh has access to a buggy which helps him to feel safe and manage his emotional regulation as well as addressing any difficulties that Josh may have in walking distances. These coping strategies are reasonable and appropriate”

Was there fault in the Council’s actions causing injustice to Mrs Y and C?

22. It is not for the Ombudsman to decide whether a person is eligible for a blue badge; that is a matter for the Council to determine. Instead, we look at the procedure followed by the Council when reaching its decision to conclude whether it is in line with any law, guidance, or policies. If we find fault in the decision-making process, we may ask the Council to reconsider its decision. However, this does not always result in the granting of a blue badge.
23. After considering the information available to me, I have made a finding of fault causing injustice. This is because:
• The Council’s refusal letter is not signed. This could create doubt about whether the reviewing officer was directly involved in the first decision to refuse. In this case, internal emails provided by the Council show the person who considered Mrs Y’s review was the same officer who made the initial decision to refuse C’s application. This goes against the principles both of the DfT guidance and LGSCO guidance about good administrative practice.
• Although the Council says that C’s specialist buggy addresses any mobility issues he has, the Council has not considered Mrs Y’s point about the need for a wide bay to help Mrs Y get C safely from the car and into the buggy, and vice versa. Mrs Y says that C can harm himself and others when getting into and out of the car. There is no evidence to show the Council has considered this.
• Mrs Y says C always needs to be close to the car for his ‘safe space’, especially after experiencing a sensory overload from busy car parks. There is no evidence to show the Council has considered this.
• The Council has not shown the Ombudsman what evidence it relied on when making its decision. The Council refers to a ‘panel meeting’ in which the applications were considered, but there are no minutes. The Council’s decision-making therefore lacks transparency.
24. In response to my draft decision, the Council confirmed, “Rutland County Council recognises the need to make its processes and decision making regarding Blue Badge applications more robust and transparent”. It also said:
• The Council has already made improvements to the management of blue badge applications to ensure decision making is more transparent for parents. It is also exploring the possibility of using existing multiagency SEND panels to provide oversight on decision making for blue badges; and
• It will arrange refresher training in accordance with the DfT guidance prior to making any further blue badge assessments.
25. In addition to the service improvements above, the Council has agreed to remedy the injustice caused by fault with the actions listed in the following section of this statement.

Agreed action

26. Within four weeks of my decision, the Council has agreed to:
• Re-assess C’s application for a blue badge. The review will be carried out by an officer who was not involved in the original decision to refuse C’s application. The Council will ensure its assessment complies with the DfT guidance.
• Apologise to Mrs Y for the time and trouble she has experienced; and
• Remind its blue badge decision makers about the requirements of the DfT guidance, particularly regarding the assessment of those with ‘hidden’ disabilities. The Council will also remind officers about transparent decision-making; ensuring that decision letters are signed by the officer who made the decision, and that notes/minutes of any relevant discussions are taken and retained.

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Final decision

27. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The Council has agreed to implement the actions outlined above, and this is a suitable remedy for the injustice caused to Mrs Y and C.

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Investigator's decision on behalf of the Ombudsman