Summary: Mr C complains the Council’s decision to refuse his application for a Freedom Pass is wrong. The Council is at fault for failing to have a written policy about how it assesses people with hearing loss for a Freedom Pass. It is also at fault for failing to provide Mr C proper reasons about why it rejected his application. The Council has agreed to reconsider Mr C’s application and pay him £150 for his time and trouble. The Council has also agreed to have a written policy which people can refer to about its eligibility criteria.

The complaint

1. The complainant who I call Mr C, complains the Council has inappropriately rejected his application for a Freedom Pass on the basis he is no longer eligible. Mr C complains he has had a Freedom Pass since 2014 and his hearing loss has not improved. He complains the method used by the Council to assess hearing loss for a Freedom Pass is unfair, discriminatory and breaches the Equality Act 2010. He also does not understand how the Council can withdraw the Freedom Pass after he has had it for over eight years.
2. Because of the Council’s refusal Mr C says he has reduced the public transport he uses and has financial loss as he has had to pay for public transport since March 2021.

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The Ombudsman’s role and powers

3. 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 an organisation’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)
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)

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How I considered this complaint

5. I considered written information Mr C provided and asked for information from the Council. I considered:-
• duties owed under the Equality Act 2010;
• Council’s Freedom Pass process;
• Mr C’s application and audiology test;
• Department for Transport “Guidance to local authorities on assessing eligibility of disabled people in England for concessionary bus travel” 2013.
6. Mr C 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

Background information

7. Mr C has had the benefit of a Freedom Pass since 2014. This is on the basis that he has a hearing impairment.

What should have happened

The law and government guidance

8. The English National Concessionary Travel Scheme run by the Department for Transport (DfT) says bus passengers aged over 65 and disabled passengers can travel free on any off-peak local service in England. There are seven categories of disabled people who can get a concessionary bus pass including people who are profoundly or severely deaf.
9. Under the terms of the Transport Act 2000 it is for a local authority to decide whether someone is a ‘disabled person’ for concessionary travel. The DfT has published guidance (‘the guidance’) to local authorities on assessing eligibility of disabled people in England for concessionary bus travel.
10. The guidance says, if applying under the rules of ‘profoundly or severely deaf’ local authorities may need applicants to provide evidence “for example an audiological report, or a report from an aural specialist”.
11. Hearing loss is measured in decibels across the normal hearing spectrum, as dB HL (Hearing Level). People are generally regarded as having a severe hearing loss if it reaches 70-95 dB HL and a profound loss if it reaches 95+ dB HL. The DfT advises the statutory minimum concession should be made available to people in these categories.
12. A Pure Tone Average (PTA) is an average score used by audiologists which focuses hearing at the mid frequencies where sounds are most densely populated. These frequencies are at 500, 1000, 2000 and 4000 Hz.
13. The Equality Act 2010 protects the rights of individuals and supports 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.
14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also consider the general duties aimed at removing discrimination under the Public Sector Equality Duty. Disability is a protected characteristic.
15. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

The Council’s policy

16. The Council assesses people with a hearing loss using an average score over five frequency levels at 250, 500, 1k, 2k, and 4k. If the readings at these levels exceed 70dB HL a person is eligible for a Freedom Pass. The Council does not have a written policy but says the frequency levels are in line with other councils and what audiologists generally use.

What happened

17. In January 2021 the Council rejected Mr C’s application to renew his Freedom Pass. Mr C made a new application in March 2021. His application included an audiology assessment. This assessed Mr C with a PTA of 58dB HL in the right ear and 60dB HL in the left ear. The Council did not complete its own hearing assessment.
18. The hearing level is below the threshold needed for a Freedom Pass. Mr C correctly says that if the Council took an average over all the frequency readings his hearing level would meet the threshold of 73dB HL in each ear. Mr C says the Council’s policy is discriminatory as it does not consider the higher frequency readings. The Council disputes this and says it uses a nationally recognised process.

Is there fault causing injustice?

19. The DfT guidance is not prescriptive in setting out how councils should assess those with hearing loss. This is for each council to decide and set out in its local policy.
20. The Council has set and averaged the assessment frequency levels where most everyday sounds are located. It has also included a low frequency and high frequency point. This is in line with the nationally used assessment, PTA. However the Council does not have a written policy. This is fault.
21. As a result Mr C has the uncertainty of not knowing whether the Council’s process and decision is correct.
22. Based on the DfT guidance Mr C had a legitimate expectation he would be eligible for a Freedom Pass as he averaged a score of over 70 dB HL. The failure of the Council to publish its policy caused Mr C time and trouble in applying for a Pass he may not be entitled to.
23. It is not for the Ombudsman to say whether the Council has breached the Equality Act. This is a matter for the courts. In this complaint however the Council does not have a written policy which shows it has considered its duties under the Equality Act. This is fault. Mr C has the uncertainty of not knowing whether the Council’s policy is compliant with the Equality Act.

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Agreed actions

24. I consider there was fault in the Council’s actions which has caused Mr C injustice. The Council has agreed to take the following actions which I consider are suitable to remedy Mr C’s injustice:-
1. apologise to Mr C and pay him £150 for the failures I have identified in this statement and for his time and trouble;
2. reconsider Mr C’s application for a Freedom Pass, if Mr C is not eligible then provide an explanation about why he is ineligible;
3. provide a written policy about how the Council assesses people with hearing loss for a Freedom Pass so applicants can make an informed decision before applying.
25. The Council should complete (a)-(b) within a month of the final decision and (c) within three months of the final decision.

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Final decision

26. I have found fault with the Council’s actions which have caused Mr C injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman