Summary: Ms X complained about how the Council rejected her application for a disabled parking bay outside her home. There was fault in how the Council considered Ms X’s application. The Council agreed to apologise to Ms X for the distress this caused and review its decision. It also agreed to review its disabled parking bay policy to ensure it allows the Council to consider individual circumstances in each case.

The complaint

1. Ms X complains the Council wrongly refused to give her permission for a disabled parking bay outside her home. She says the Council ignored the medical evidence she provided and did not properly consider her disability when making its decision.
2. As a result, Ms X says she is reluctant to leave her home which has affected both her physical and mental health. She wants the Council to apologise and provide her with a disabled parking bay.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I considered:
• the information Ms X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and Council policy.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Council’s policy

10. The Council has a written policy for providing advisory disabled parking bays. Its policy says applicants who have a disabled persons parking badge (blue badge) may apply for an advisory disabled parking bay outside their home, subject to certain conditions which include:
• not having access to off-street parking associated with their home; and
• there is evidence of a ‘parking problem’.
11. The policy says the Council will consult an applicant’s neighbours and will consider any legitimate objections when making a decision. The Council says “as the disabled bay provided will be advisory the goodwill of neighbours will be key to success of the bay.”

Equalities and human rights

12. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance 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.
13. 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.
14. 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.
15. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
16. Article 8 of the Human Rights Act says individuals have a right to respect for private and family life, home and correspondence. This includes a right to participate in essential economic, social, cultural and leisure activities. In some circumstances, public authorities may need to help someone enjoy their right to a private life, including their ability to participate in society.
17. Article 8 is a qualified right. This means organisations can interfere with the right in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
18. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

My findings

19. It is not our role to decide if Ms X should have a disabled parking bay; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
20. In my view, there was fault in how the Council considered Ms X’s application.
21. On the balance of probabilities, I consider the Council rejected Ms X‘s application because neighbours had objected, rather than based on the content of those objections. In both its first and appeal decision, the Council referred to having received objections as the reasons for refusing Ms X’s application. There is no evidence it weighed the reasons for the objections against Ms X’s needs related to her disability. It has not shown how the actions of people who do not live at Ms X’s address were relevant to her application. It also did not give Ms X an opportunity to respond to any allegations made in those objections, even if it could not share the objections themselves with Ms X.
22. The Council has also not shown it properly took into account the medical evidence Ms X provided about the difficulties she had accessing the off-street parking attached to her property and how a disabled parking bay would help her wellbeing. Although Ms X did not include this information in her application or appeal, she provided this information later. In response to this the Council told her this information was not relevant. However, it has not provided an adequate explanation for why Ms X’s ability to use the parking associated with her property is not relevant to its decision.
23. There is no evidence the Council considered either its public sector equality duty or Ms X’s Article 8 rights when making its decision. There is no evidence it considered how Ms X’s disability affected her ability to use any existing parking or its duty to support her to participate in society.
24. Ms X said she also had difficulty accessing the off-street parking due to fly-tipping along the access road. However, there is no evidence Ms X raised this either in her application or her appeal. Therefore, I do not consider it was fault for the Council not to consider that information at the time.
25. I cannot say what decision the Council would have made had it considered Ms X’s application properly. It did, however, cause distress to Ms X by not making its decision properly, particularly when it told her it would not consider relevant evidence. The Council should apologise to Ms X for that distress and remake its decision, properly considering and weighing all the evidence.
26. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
27. Considering the evidence the Council provided as a whole, on the balance of probabilities, my view is that there is evidence the Council sometimes rejects applications because it receives objections from neighbours. The Council referred several times to the existence (rather than the substance) of objections and that it cannot make exceptions to its policy. In my view, this was fettering the Council’s discretion and was fault.
28. In my view, the Council’s policy that it will not approve a disabled parking bay for someone who has a property with associated off-street parking fails to allow decision makers to take into account whether or not that parking is accessible to the applicant. I consider this is a blanket restriction which prevents it from considering individual circumstances and therefore also fetters the Council’s discretion.

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Agreed action

29. Within one month of my final decision the Council will:
• apologise to Ms X for the distress caused by not properly considering her application; and
• review its decision about Ms X’s application, properly taking into account all the evidence about her disability, the accessibility of any off-street parking associated with her property, what weight it should give to the substance of any objections and its legal duties under equality and human rights law. It should give Ms X the ability to make further representation about her circumstances and consider whether it needs to ask her for more information.
30. Within three months of my final decision the Council will:
• review its disabled parking bay policy to ensure it:
1. allows the Council to take into account the accessibility of any existing off-street parking in light of an applicant’s disability;
2. clearly sets out how it will consider any neighbour objections when deciding applications, ensuring any objections are weighed appropriately against other aspects of the application;
3. properly takes into account the Council’s duties under the Equalities Act and Human Right’s Act in all cases; and
4. properly records its consideration of applications, including what weight it gives to different evidence.
• provide training to all staff responsible for deciding parking bay applications on:
1. any changes the Council makes to its policy;
2. the importance of considering and weighing all aspects of an application before making a decision and not applying any blanket rules or approaches to applications; and
3. how to properly record and explain decisions they make.
31. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. There was fault in how the Council considered Ms X’s application. The Council agreed to apologise to Ms X for the distress this caused and review its decision. It also agreed to review its disabled parking bay policy to ensure it allows the Council to consider individual circumstances in each case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman