Devon County Council (21 008 218)

Category : Transport and highways > Public transport

Decision : Not upheld

Decision date : 11 Mar 2022

The Ombudsman's final decision:

Summary: Mr B complained that the Council refused his application for a disabled person’s bus pass despite him suffering from profound hearing loss. We found no fault on the Council’s part.

The complaint

  1. Mr B complains that the Council refused his application for a disabled person’s bus pass despite him suffering from profound hearing loss.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

The England national concessionary travel scheme

  1. The English National Concessionary Travel Scheme is run by the Department for Transport (DfT) in conjunction with local authorities across England. Bus passengers aged over 65 and disabled passengers are entitled to travel free of charge on any off-peak local service in England.
  1. Under the Scheme there are seven categories of disabled people who are entitled to a concessionary bus pass including people who:
    • are blind or partially sighted
    • are profoundly or severely deaf
    • have a disability, or have suffered an injury, which has a substantial and long-term adverse effect on their ability to walk.
  2. Under the terms of the Transport Act 2000 it is for a local authority to determine whether someone is a ‘disabled person’ for the purposes of concessionary travel. The DfT has published guidance (‘the guidance’) to local authorities on assessing eligibility of disabled people in England for concessionary bus travel.
  3. The guidance says the most robust way of assessing eligibility is likely to be via other relevant state benefits. Eligibility for a concessionary travel pass may be considered "automatic" (not requiring further assessment) where a person is in receipt of any of the following state benefits, which link eligibility to receive the benefit to the ability to walk or, in the case of PIP, to communicate verbally:
    • Higher Rate Mobility Component of Disability Living Allowance (DLA);
    • Personal Independence Payment (PIP), where the applicant has been awarded at least eight points against either the PIP "Moving around" and/or "Communicating verbally" activities;
    • War Pensioner's Mobility Supplement.
  4. The guidance says “for other applicants, where there is any doubt about eligibility, the Department recommends that local authorities seek independent medical evidence to inform their decision. The cost of this should not be borne by the applicant.”
  5. The guidance says, “using an applicant’s GP to verify that an individual meets the criteria for a concessionary travel pass is regarded as an unsatisfactory arrangement”.
  6. The guidance states that, in the case of an applicant applying under the criteria of being ‘profoundly or severely deaf’ local authorities may require applicants to provide evidence “for example an audiological report, or a report from an aural specialist”.

Key facts

  1. Mr B was in receipt of a national bus pass on the grounds of ‘severe difficulty in walking’ between 2008 and 2017. His entitlement to a bus pass ended after a Department for Work and Pensions’ investigation concluded he was no longer entitled to the PIP that gave him eligibility for the pass.
  2. In June 2018 Mr B requested a bus pass and sent the Council a recent audiology report. The report showed a mild hearing loss. The Council wrote to Mr B explaining his request had been refused. It said the report showed the level of hearing loss was 34 in Mr B’s right ear and 29 in his left ear. To qualify for a bus pass those two numbers would have to be greater than 70 so he was not eligible for a bus pass as his hearing loss was not severe enough.
  3. In December 2018 Mr B provided a new audiology report which showed a profound hearing loss in both ears. The report stated the loss in his right ear was 92 and in his left ear 93.
  4. The Council wrote to Mr B on 3 January 2019 explaining it could not issue him with a bus pass where there was such a dramatic difference between two tests carried out over such a short period of time. It said the new audiogram showed a dramatic loss of hearing in both ears. As the two reports were “vastly different” and only six months apart, the Council asked Mr B to complete an evoked response audiometry test to provide a definitive result regarding the extent of his hearing loss.
  5. Mr B says he could not take the test requested by the Council as it is not available locally on the NHS and he could not afford to pay for a test. He says he would have to travel to London for an NHS test which is not feasible.
  6. In December 2020 the Citizens Advice Bureau (CAB) approached the Council on Mr B’s behalf with another application for a bus pass and included a letter of support from Mr B’s GP. The Council assessed this application under the category of eligibility indicated on the application form, “severe difficulty in walking”. It rejected the application explaining that, to be eligible for a bus pass under the category “disability that severely restricts mobility”, Mr B would need to provide evidence of one of the following: DLA high rate mobility component; PIP scoring eight points or more in the ‘moving around’ category; a disabled person’s blue badge; or a war pension with mobility supplement.
  7. The CAB made a complaint on Mr B’s behalf in May 2021. The Council responded explaining that eligibility for a bus pass is determined by statutory guidelines and legislation places the responsibility on the applicant to demonstrate eligibility. It said, “in the context of previous applications which have given us due cause to suspect fraud, the authority is obliged and entitled to take steps to thoroughly examine any evidence offered and to require [Mr B] to respond with required information”.
  8. Mr B has provided an audiology report dated September 2021 showing profound hearing loss. The Council says this is not new evidence as the report shows the same information as the one provided in December 2018. It says it reserves the right to question this evidence as no response was given to its concerns the first time this report was presented so soon after the report showing a mild hearing loss.

Analysis

  1. The Council’s website states that, to successfully apply for a bus pass based on disability, the applicant will need to provide evidence of their disability. It states that, in the case of someone applying based on the category of being ‘profoundly or severely deaf’, they would have to provide an audiological report or a report from an aural specialist confirming they are registrable as profoundly or severely deaf. This complies with the guidance.
  2. Although Mr B has provided audiological reports, the Council is entitled to require additional evidence given that there was such a dramatic difference between the two reports Mr B submitted in 2018. It is entitled to take the view that a more definitive test is required.
  3. An evoked response audiometry test uses a computer to measure the brainwave activity that occurs in response to auditory stimulus. It is an objective test whereas basic audiometry tests are subjective and rely on the person being tested to voluntarily indicate when a sound has been heard. Evoked response audiometry tests are performed where there is doubt over the validity of audiometry results.
  4. I find the Council is entitled to require Mr B to undertake such a test to provide objective evidence of the extent of his hearing loss. But the guidance says the cost of the test should not be borne by the applicant. So, the Council should pay for the test if Mr B is willing to undergo the test and cannot obtain one free locally via the NHS.

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Final decision

  1. I do not uphold Mr B’s complaint.
  2. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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