Decision : Not upheld
Decision date : 05 Feb 2019
The Ombudsman's final decision:
Summary: Miss C complained that the Council wrongly refused her application for a concessionary bus pass. The Ombudsman found no fault in the way the Council reached its decision.
- Miss C complains that the Council refused her request for a disabled person’s concessionary bus pass. Miss C says she applied under a category of eligibility entitled ‘without speech’ but the Council assessed her application incorrectly and failed to consider the additional medical information she provided.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- I have considered
- the information provided by Miss C
- the information provided by the Council in response to my enquiries and
- relevant law and guidance
- Before I made my final decision, both parties were sent a draft of the decision and invited to comment. The Council did not wish to make any comments. Miss C said she did not agree to my draft decision but provided no further details.
What I found
- Councils are responsible for administering the English National Concessionary Travel Scheme for their area. The Concessionary Bus Travel Act 2007 provides a statutory guarantee of free off-peak travel for eligible older and disabled people.
- The Department for Transport has issued guidance to assist councils in assessing the eligibility of applicants. An eligible disabled person is someone who:
- is blind or partially sighted;
- is profoundly or severely deaf
- is without speech
- has a disability or has suffered an injury which has a substantial and long-term adverse effect on their ability to walk;
- does not have arms or has long-term loss of the use of both arms;
- has a learning disability that is a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning; or
- would, if they applied for a grant of a licence to drive a motor vehicle under part III of the Roads Traffic Act 1988, have their application refused pursuant to section 92 of the Act (physical fitness) otherwise than on the ground of persistent misuse of drugs or alcohol.
- Annex A of the guidance recommends that applicants in receipt of personal independence payment (PIP) with a score of at least eight points because of their inability to walk, or communicate orally without support, should be automatically eligible for the statutory minimum concession. All recipients of PIP are issued with an award letter from the Department for Work and Pensions (DWP) specifying the conclusions of their assessment and the level of benefit awarded.
What happened in this case
- Miss C is autistic. She applied to the Council for a disabled concessionary bus pass on 15 September 2017. She made the application in person at a library. Staff recorded that Miss C had a learning disability. Miss C’s disability type was ticked as ‘undefined’. The Council explained that library staff only define a disability if it is obvious from the evidence supplied. They do not routinely ask a person which category of disability they are applying under. This is because they consider the information “can often be personal and sensitive and it is in an open environment”. The Council said that the disability type is amended when it becomes clear which category the application is being made under.
- On 21 September 2017 Miss C provided the Council with a letter from her GP dated 13 September 2017. The letter said that Miss C had a “chronic history of generalised anxiety and atypical eating habits/disorder. She has social anxiety and communication difficulties, for example she cannot use the phone/mobile”. The GP said the letter was written at Miss C’s request in support of her application for a concessionary bus pass.
- Miss C also provided a copy of an appeal decision letter from the DWP dated 26 July 2017. The Council said only the first two pages of the letter were received. The letter stated that Miss C’s total score for ‘daily living activities’ was 8 points. This consisted of four points under ‘engaging with other people face to face’ and two points for ‘making budgeting decisions’. Based on this information the Council concluded that the maximum points Miss C could have been awarded for ‘communicating verbally’ was two points.
- There are five eligibility descriptors under ‘communicating verbally’ with points from 0 and 12. The Council said that “The DWP descriptors for 0 and 2 points are ‘can express and understand verbal information unaided’ and ‘needs to use an aid or appliance to be able to speak or hear’ respectively… the fact that [Miss C] had an award of either 0 or 2 points indicated that she met one of these two descriptors and that, as far as DWP were concerned, she was not without speech”. The Council said that to have automatic qualification under this category, a person would need a score of at least eight points.
- The Council has acknowledged that it received information from a number of agencies. The information related to chaperone services, travel assistance and advocacy support. The Council considered this information and found that it did not indicate that Miss C was without speech. The Council also concluded that Miss C did not meet the criteria under the mobility category of ‘moving around’. It considered, however, that Miss C may qualify based on being medically unfit to drive.
- The Council wrote to Miss C on 4 October 2017 and refused her application. It said that to qualify for a concessionary bus pass Miss C needed a minimum of eight points for either the activity ‘moving around’ or ‘communicating verbally’. It said if Miss C had scored the required points she should submit her full PIP decision letter. The letter also said that if she wished to apply for a concessionary bus pass on the basis that she was medically unfit to drive, she could do so and advised her how to do this. The Council provided an information criteria sheet with a list of acceptable documents to prove eligibility for a disabled concessionary bus pass.
- On 23 October 2017 Miss C emailed the Council and said she could not use public transport without assistance. The Council responded to Miss C on 27 October and explained that it could not issue a concessionary bus pass based on the information she had provided. It provided a link to its website where Miss C could find details of acceptable documents to prove her eligibility.
- On 8 February 2018 Miss C sent the Council a copy of a diagnostic assessment by the Neurodevelopmental Autistic Spectrum Disorders Service. The Council said the report indicated that “the assessment was carried out through a meeting with [Miss C] and her support worker” and that “much of the background information was given verbally by [Miss C] herself during the meeting and there is no suggestion that her support worker was speaking for her”. The Council considered the report further and noted that there were other references to Miss C speaking to other people. In her correspondence Miss C clarified that she could drive but was restricted as she could not use car parks or travel far from home.
- On 1 March 2018 the Council received an email from Miss C’s support worker at the National Autistic Society. The support worker suggested that a companion pass could significantly improve Miss C’s health and wellbeing and reduce the risk to her personal safety.
- In response to my enquiries the Council said that at this stage it appeared that Miss C was most likely applying for a concessionary bus pass under the ‘learning disability’ category. The guidance says that to qualify under this category a person must have a “significant impairment of intelligence and social functioning”. The Council wrote to Miss C on 9 March 2018 and provided a list of acceptable documents for the seven categories of disability and explained that the disability must be permanent or likely to last at least twelve months. The Council said that, based on the information it received, Miss C did not qualify under the category ‘learning disability’.
- The evidence shows that the Council properly considered and rejected Miss C’s initial application in October 2017. It concluded that although she had a PIP she had not scored at least eight points because of her inability to walk, or to communicate orally without support. It reviewed all the information that Miss C had provided and said that it did not indicate that Miss C was without speech.
- The Council then considered Miss C’s application on the basis she had a learning disability. It considered the information provided in the diagnostic report and acknowledged that whilst she had been diagnosed as autistic there was no evidence in the report that suggested she met the criteria for a disabled person’s bus pass.
- Miss C says the Council failed to assess her application under the category ‘without speech’. I disagree. The Council was not initially clear which category Miss C was making her application under. However, whilst this may have caused some confusion and delay in the process, I am satisfied that the Council considered all the information sent in support of the application, including information which related to her speech. I am satisfied the Council properly applied the guidance before deciding she was not eligible for the concessionary pass. Having considered the evidence, I find no fault in the way the Council reached its decision.
- The Council properly considered Miss C’s application for a disabled person’s concessionary bus pass. It followed Government guidance and used its professional judgement appropriately.
- I have therefore completed my investigation and find no fault by the council.
Investigator's decision on behalf of the Ombudsman