Decision : Not upheld
Decision date : 28 Jun 2019
The Ombudsman's final decision:
Summary: The Council correctly assessed D’s application for a freedom pass (concessionary travel card).
- The complainant, who I will call Mr C, says the Council failed to properly assess his son’s eligibility for a freedom pass. Mr C says the Council has not followed guidelines, as did not get independent medical evidence to confirm his son does not have a significant impairment of intelligence. The Council says you must have an IQ below 70 to get a freedom pass but has not shown this is not the case. Mr C does not agree this follows government guidance, and believes his son is eligible under paragraph 51 of national guidance, and by examples given by the Council. Mr C says his son’s school asked him to get a freedom pass so they could take his son out on trips. Without the freedom pass he will have to pay for public transport for his son.
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 considered:
- Information from Mr C, including during a telephone conversation.
- The Council’s response to my enquiries.
- The Department for Transport’s “Guidance to local authorities on assessing eligibility of disabled people in England for concessionary bus travel”
- The British Psychological Society’s “Guidance on the Assessment and Diagnosis of Intellectual Disabilities in Adulthood”.
- Mr C’s response to a draft of this statement, the Council did not reply.
What I found
- Mr C applied for a concessionary travel card, known as a freedom pass. The freedom pass allows free travel in London for qualifying disabled people. Mr C applied for his son, D, on the basis D has a learning disability that includes a significant impairment of intelligence and social functioning.
- The Department for Transport guidance explains the relevant category as ‘has a learning disability, that is, a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’ at paragraph 51 it states “A person with a learning disability has a reduced ability to understand new or complex information, a difficultly in learning new skills, and may be unable to cope independently. These disabilities must have started before adulthood and have a lasting effect on development. The person should be able to qualify for specialist services and he or she may have had special educational provision”.
- Mr C feels paragraph 51 of the guidance (detailed in paragraph six of this statement) describes D, but the Council rejected the application for a freedom pass. The Council said it did not have evidence that D had a learning disability defined as ‘a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’. The Council had considered information provided by Mr C, a letter from D’s school, D’s Education, Health and Care plan (EHCP), and a psychologist report.
- At paragraph 53 the national guidance says “In determining eligibility in a case where there has been no previous contact with specialist services a local authority should normally require independent medical advice, or check any register of people with learning disabilities which might be held by the Social Services Department of the applicant’s local council.”
- The Council says it did not need to get independent medical evidence as D had contact with specialist services; the Council provides education transport. The Council did not consider it needed any medical evidence above that it already held.
- When the Council considers whether someone has a significant impairment of intelligence it considers their IQ as a factor. The Council refers to The British Psychological Society’s guidance, which although aimed at assessing adults has relevant guidance on identifying cognitive difficulties resulting from a state of arrested or incomplete development of mind. This says ‘intellectual functioning’ refers to a full-scale IQ score. The IQ test is to decide the ‘significant’ part of the ‘significant impairment of intelligence’. Though there is no evidence the Council assessed D’s IQ in this case.
- Mr C went through both stages of appeal, but the Council’s decision remains the same. The Council explained that it accepts D has difficulties with social functioning but there was no evidence of impaired intelligence. The Council says the psychological report showed D’s primary barrier to learning was concentration and attention difficulties associated with autism rather than impaired intelligence.
- The Council has considered whether to issue a discretionary pass, but do not consider it necessary in this case. The Council has advised Mr C about a student travel card which would provide D with free travel on buses and trams, and reduced fares on other forms of transport.
- Council’s must consider the Department for Transport’s guidance when deciding whether to issue a freedom pass, but it is for the Council to decide whether someone is a ‘disabled person’ and qualifies for the pass. Therefore, councils can have their own policies or procedures for assessing eligibility, so long as they consider the statutory guidance. It is not fault for the Council to consider IQ when considering if someone has a significant impairment of intelligence.
- The guidance says if there has been no previous contact with specialist services a local authority should normally require independent medical advice. In this case D has had contact with specialist services. The Council got information internally (the EHCP plan and the psychologist report) so did not need to seek independent medical advice.
- There is dispute between the Council and Mr C about seeking further information from D’s school, and the school’s local authority. The Council says Mr C forbade it from contacting those bodies, Mr C says he only said not to complain to those bodies about any misinformation they may have given Mr C. He would have been happy for the Council to get further information from those bodies about D’s intelligence and social functioning.
- Mr C queries how the Council could make the decision without the additional information it wanted to get from the school and other local authority. The Council decided it had enough information to make a decision, and this was upheld at appeal. I can see no reason to question or criticise the Council’s view on this.
- Mr C refers to a part of the guidance which says where there is any doubt about eligibility, the Council should seek independent medical evidence to inform its decision. The issue in this case is not that the Council has a doubt about eligibility, it has considered professional evidence when deciding, and has exhausted its appeals process to reconsider its decision. The issue is that Mr C does not agree with the Council’s decision on eligibility.
- The Council’s view is that it had enough information to decide D’s eligibility. The Council’s view is that none of the evidence shows D has been assessed by a qualified medical professional as having a significant impairment of intelligence. Therefore, D does not meet the legal requirements to receive a freedom pass, as must have both a significant impairment of intelligence and a significant impairment of social functioning. I have no reason to question or criticise the Council’s decision, as it followed proper process.
- The guidance says the onus is on the applicant to prove their entitlement, the Council is not satisfied that Mr C has proved D’s entitlement. The Council says if Mr C can provide evidence which shows a significant impairment of intelligence it would welcome a new application.
- Although I recognise Mr C’s disappointment, I find no fault in the Council’s process to determine D’s eligibility for a freedom pass. It considered relevant evidence and followed the correct appeals process.
- I have completed my investigation on the basis there is no fault by the Council.
Investigator's decision on behalf of the Ombudsman