Summary: There was fault by the Council in its response to Ms X’s complaint and in the application process for a personalised parking bay. The Council failed to act in line with the Equality Act and this meant Ms X’s case was not considered properly or at all. The Council will apologise, send Ms X a paper application form, consider it on discretionary grounds and make changes to its website.

The complaint

1. Ms X complained the Council refused to allow her to apply for a personalised parking bay for her autistic son Mr Y. She said the Council’s website would not allow her to make a full application because he does not get the high-rate mobility component of Disability Living Allowance.
2. Ms X said this caused avoidable frustration and a lost chance to have their application considered.

Back to top

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 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)

Back to top

How I considered this complaint

5. I considered Ms X’s complaint to us, her complaint to the Council and its response.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. Under the Equality Act 2010, disability is a protected characteristic. It is against the law to treat a person with a protected characteristic less favourably (to discriminate against them) because of their disability.
8. Indirect discrimination is where there is a policy or practice that applies in the same way for everybody, but it disadvantages a group who share a protected characteristic. If this happens, the organisation must show there is a good reason for it. A policy can include a practice, rule or arrangement. It makes no difference if the organisation intended the policy to disadvantage anyone. To decide if there is indirect discrimination, the following must apply:
1. There must be a policy which applies to everyone equally (or to everyone in a group that includes the complainant)
2. The policy must disadvantage people with the complainant’s protected characteristic when compared with people without it
3. The complainant has suffered or will suffer a disadvantage
4. The organisation cannot show a good reason for the policy or practice.
9. Personalised disabled parking bays are for blue badge holders who have no off-street parking at their home. The Council may provide a parking bay outside or close to the person’s house, for their use only. The Council’s policy explains:
• Applicants need to provide proof of high-rate mobility component of Disability Living Allowance (DLA) or Personal Independence Payment (PIP) with a score of 12 for moving around.
• If the applicant has a hidden disability which limits or restricts mobility, this must be confirmed by an expert assessor. Passengers must receive PIP and score 10 points for Descriptor E (planning and following a journey) because it would cause overwhelming psychological distress.
10. As well as the personal criteria in the last paragraph, environmental criteria set out in the policy need to be met.
11. The policy also says:

“the Council retains the right to apply judgement in circumstances which would override the above criteria. This could include where the holder of a blue badge is not the driver and the driver is unable to set down the badge holder and park further away. This may be due to their age or if it would not be possible for the badge holder to be left unattended.”

12. A council should not adopt a blanket approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of councils that ‘fetter their discretion’ in this way.

What happened

13. Ms X tried to apply for a personalised parking bay using the Council’s website. She could not complete her application because the website would not let her as Mr Y did not receive the correct disability benefit.
14. Ms X said in her complaint to the Council that Mr Y had ‘meltdowns’, challenging behaviour and refused to walk when he was anxious. She explained he had a personalised parking bay where they used to live; they had recently moved house and there was limited parking. Mr Y had also just changed schools and getting him to and from school by car was hard because he finds school overwhelming and is distressed during the journey to and from school.
15. Ms X went on to explain that Mr Y had tried to jump out of the car when it was moving, opened the door, pulled the gear stick and steering wheel and had pulled her hair and tried to punch her. She said this was dangerous for her and him. Ms X said an occupational therapist was in contact with them.
16. The Council said in its response to Ms X that it could not deal with her complaint. The response went on to say:

“the eligibility criteria is the same for all disabled badge holders of Tower Hamlets…. it has strict criteria and as no application and documents have been received, we cannot make any further comments.”

17. Ms X complained to us.
18. The Council told us:
• It accepted the information on its website was not clear and agreed to make changes
• Due to the confusion in this case, it would send Ms X a paper application to complete, but she would still need to meet the criteria (environmental and mobility or hidden disability). It would also apologise for the confusion.
• All councils had strict criteria for personalised parking bays. The criteria are stricter than for blue badges because criteria there are 8000 blue badge holders in the borough and if the criteria for a bay were the same as the eligibility for a blue badge, then this would place unsustainable pressure on parking space.

Findings

19. There was fault in the Council’s complaint response. The response should have identified that the way the on-line application process for a personalised parking bay has been designed was flawed because it prevented Ms X from making a full application to have Mr Y’s case considered on discretionary grounds. The Council’s policy is clear that there is discretion to consider individual cases including where the passenger has a hidden disability. This applies in Mr Y’s case.
20. The Council’s failure to advise Ms X to make a full application and to support her to do this through a route other than the website was poor customer service and was fault. It meant she was denied the chance of having Mr Y’s individual circumstances properly considered.
21. The way the Council’s website works denies a sub-group of disabled people whose disabilities are hidden the chance to have their application considered on discretionary grounds. This is because the form requires applicants to provide evidence of PIP or high-rate mobility DLA. If they cannot provide proof, they cannot submit a full application. There is no evidence the Council intended to disadvantage people with hidden disabilities like autism when designing the website, however it has had this effect on Mr Y. There do not appear to be grounds for the Council to justify its practice. My view is the website’s design is means that people with hidden disabilities are unfairly disadvantaged, because it filters out cases who may otherwise be eligible. The practice is a blanket approach which may deny applications which otherwise have a chance of succeeding.

Back to top

Agreed action

22. The Council will within one month:
• Provide an apology in line with our Guidance on Remedies
• Allow Ms X to make a full paper application for a personalised parking bay
• Make changes to the information on its website.
23. Mr Y’s application may or may not succeed. It is a matter for the Council to consider the full paper application and evidence Ms X submits on his behalf. He will need to meet the criteria for hidden disability and the environmental criteria will also need to be considered by the Council and met.
24. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

25. There was fault by the Council in its response to Ms X’s complaint and in the application process for a personalised parking bay. The Council failed to act in line with the Equality Act and this meant Ms X’s case was not considered properly or at all. The Council will apologise, allow Ms X to make a full paper application, consider it on discretionary grounds and make changes to its website.
26. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman