The Investigation

The complaint

1. Mrs D complained the Council refused to renew her Blue Badge.

2. Mrs D said as a result she found it much harder to leave her home, as she cannot walk or stand for long periods.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

Relevant law, guidance and Council policy The Blue Badge Scheme

5. The Department for Transport’s (DfT) Blue Badge Scheme helps people with severe physical mobility problems, or other conditions affecting their mobility, to access goods and services. It does this by allowing them, or their carer, to park near their destination. The scheme gives parking concessions to Blue Badge holders. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing applicants’ eligibility for the badge.

6. DfT guidance sets out what assessors may wish to consider when assessing a person’s mobility. The guidance is non-statutory. This means councils do not have to follow it, but most do. We expect councils to explain if they decide not to follow such guidance.

7. The guidance says councils must make sure they only issue badges to residents who satisfy one or more of the criteria set out in legislation.

8. There are two ways a person can be eligible to receive a Blue Badge. First, where someone is eligible without further assessment. This includes those receiving certain welfare benefits, some armed forces veterans and those registered blind.

9. The second category is for those people eligible subject to further assessment. They must fulfil one of two criteria to qualify for a badge. Either they:

• drive a vehicle regularly, have a severe disability in both arms and be unable to operate, or have considerable difficulty operating, all or some types of parking meter; or

• have a permanent and substantial physical or non-visible disability that causes inability to walk or very considerable difficulty in walking.

10. Government guidance says the words ‘very considerable difficulty’ suggest “the purpose of issuing a Badge should be to enable the applicant to undertake journeys that would not otherwise be possible, or which are only possible with very considerable difficulty”.

11. It says that several factors may be relevant in deciding if a person has very considerable difficulty walking. These can include pain, breathlessness, the distance someone can walk and the speed at which they walk. It says an applicant may be able to walk 80 metres but show very considerable difficulty doing so, including through having a “very slow pace”. The guidance describes this as someone who walks less than 40 metres a minute.

Council policy

12. The Council has sent us details of its Mobility Assessment Guidance, given to those officers who assess Blue Badge applicants at its assessment centre. The document explains that assessors will observe applicants walking up to 80 metres as well as gathering personal details about any conditions they have which impact on their walking ability.

13. The guidance says officers should assess the person’s speed of walking; their use of walking aids; any reported pain; the distance they walk and any breathlessness they have.

14. Under ‘pain’ it says that anyone who reports their pain levels at a score of between 8 and 10 (out of 10) “can be considered as having excessive pain”. But the person should also provide supporting evidence such as details of medication used to manage the pain. The Council says in practice it may also consider the impact of pain when assessing against other criteria, for example breathlessness or the need to pause when walking.

15. Under the heading ‘distance the applicant is able to walk’ the guidance says an applicant may be able to walk 80 metres without severe discomfort, but an extremely slow pace could “demonstrate very considerable difficulty walking”.

16. The guidance goes on to explain the Council will score assessments and the Council has provided us with supplementary guidance which explains how it does this. This notes the Government expectation that “in the context of walking disabilities that are predominately physical in nature very considerable difficulty in walking is likely to manifest through one or more of the following:

• the level of pain experienced by an individual when they are walking or as a consequence of walking;

• the degree of breathlessness they incur when, or as a result of, walking;

• the distance over which an individual is able to walk;

• the speed at which an individual is able to walk;

• the length of time at which an individual is able to walk;

• the manner in which the applicant walks;

• an applicant’s use of walking aids;

• the applicant’s outdoor walking ability;

• whether the effort of walking presents a danger to the applicant’s life or would be likely to lead to a serious deterioration in their health”.

17. Assessors score assessments across six domains:

• disability and use of walking aid;

• mobility observation - time taken;

• mobility observation – distance covered and number of stops;

• (other) ‘observation’ (posture, co-ordination, rhythm and balance);

• pain;

• breathlessness.

18. The points assessors can award are as follows:

• for the use of aids – one or two points;

• for those who can walk 80 metres at a very slow pace – one point;

• for those who pause during the walking assessment – one or three points; if someone fails to complete the walking assessment the assessor will award five points;

• for observation of any substantial impacts on posture, co-ordination, rhythm / balance – up to three points each, but no more than three points across all three areas of observation;

• for pain – one or two points;

• for breathlessness - one or two points.

19. So, applicants can score a maximum 15 points. For an application to succeed, the applicant must score 10 points or above.

20. The Council says the criteria above afford its assessors some discretion. This is because they can award a maximum three points when considering impacts on posture, co-ordination or rhythm / balance if they consider an applicant particularly impacted in one of those areas.

21. Occupational Therapists and Occupational Therapy Assistants undertake the assessments. The Council says all have the same training, are “skilled and experienced” and have shadowed and observed those already doing the job. It says it carries out a quality check on every assessment completed, undertaken by a senior practitioner or a manager.

22. The Council says that following an assessment, it awards Blue Badges to 67% of applicants who attend. This includes 36% of successful appeals, from those refused a Blue Badge after an initial assessment. It has refused around 130 Blue Badge applications since January 2024.

How we considered this complaint

23. Before issuing this report we considered:

• Mrs D’s complaint to us and supporting information provided;

• information provided by the Council in response to written enquiries;

• relevant law and guidance on the Blue Badge scheme as referred to above; and

• relevant guidance we issued.

24. We also gave Mrs D and the Council a chance to comment on a draft version of this report and / or provide any further evidence they considered relevant to the complaint. We took account of their comments before finalising the report.

What we found

The key facts

25. Mrs D first received a Blue Badge in 2021, during the COVID-19 pandemic. At the time, a contractor assessed applications for the Council and used different guidance to that described above. Because of the pandemic it only undertook desk-based assessments.

26. In early 2024 Mrs D applied to renew her Blue Badge. She provided letters of support from her GP and a physiotherapist. These identified that Mrs D has arthritis and associated conditions. Her GP said Mrs D reported high levels of pain and a “limitation of mobility”.

27. The Council invited Mrs D to attend an assessment in February 2024, where it awarded her renewal application a score of four points. The Council’s assessor awarded:

• one point for Mrs D using a walking stick;

• one point for her speed of walking; and

• two points for the pain she reported.

28. The assessment noted details including adaptations Mrs D has in her home; medication she took for pain management and how she managed stairs. Also, that she had recently experienced a fall. It noted Mrs D took nearly two and a half minutes to walk 80 metres and she reported high levels of pain (she scored this

9 out of 10). In their notes the assessor said Mrs D walked “at good pace”, maintained conversation and did not become breathless. The assessor also recorded how Mrs D walked to and from the assessment centre from her husband’s car.

29. Because Mrs D’s assessment did not result in a score of 10 or more points, the Council did not renew her Blue Badge. It wrote to her with its decision and its letter offered a right of appeal, which Mrs D accepted.

30. Following her appeal, Mrs D attended a second assessment in May 2024. The assessment scored six points, as follows:

• one point for Mrs D using a walking stick;

• one point for her speed of walking;

• one point because she paused during the walking assessment;

• one point for the pain she experienced (Mrs D scored this 8 out of 10); and

• two points for her co-ordination and posture when walking, noting that Mrs D needed help standing from a chair.

31. During the assessment Mrs D told the assessor of another fall she had recently. This time it took her slightly longer than two and a half minutes to walk 80 metres.

32. On both the February and May assessments the Council wrongly recorded Mrs D’s date of birth and address. The Council said it must have recordedMrs D’s date of birth wrongly when it previously awarded her a Blue Badge. It has said that it believes it recorded her address wrongly when copying details from a different database it uses when people contact another Council service. The Council says that it is sorry for these mistakes and has subsequently changed its practice to prevent a repeat. Its assessors now use a different form which requires them to check these details. It has also re-trained its customer service staff on checking cases for clerical errors.

33. In response to our draft report the Council said that it would provide Mrs D an apology for the clerical errors set out in the paragraph above. It also said it would revise its guidance for assessment officers to make it more transparent that it can award up to three points for any of the observations it makes about an applicant’s posture, co-ordination or rhythm / balance. The Council said in recognition of these matters it would make a symbolic payment of £500 to Mrs D.

34. The Council also said that it had completed a further ‘desktop’ review of Mrs D’s case. In doing so, it had considered her case against the scoring criteria used by a different local authority and asked four officers to take part in this exercise. It said this resulted in the same outcome. It still found Mrs D would not qualify for a Blue Badge. It said that it proposed sharing the details of this review with Mrs D.

Our findings

35. We noted first the Council wrongly recorded Mrs D’s age and address on the assessment paperwork. We accepted its explanation that administrative oversights caused this to happen. We did not consider these suggestive of any wider failure by the Council to follow its policy for administering the assessments.

36. We welcomed that since the events described in this investigation, the Council had changed its practice to try and prevent a repeat of these clerical errors and offered relevant training to staff. We also welcomed its willingness to apologise for what had gone wrong. We did not consider it could or should do more in response to its mistakes in recording Mrs D’s personal details. Because while Mrs D had understandable annoyance the Council recorded these details wrong, on their own, these mistakes did not cause her a significant injustice.

37. So next, we looked at how the Council scored the assessments Mrs D attended in February and May 2024. We looked at these alongside the guidance given to officers on how to undertake those assessments. We found the scores awarded corresponded with the supplementary scoring guidance given to assessors.

38. However, we considered this raised questions about the suitability of that supplementary scoring guidance. In paragraph 16 we quoted how the Council summarises Government advice. Correctly it says that an applicant may have “one or more” factors that make walking for them, only possible with “very considerable difficulty”.

39. But the advice given to the Council’s assessors on scoring individual applications goes against this. It is simply not possible for any applicant who manages to walk 80 metres to qualify for a Blue Badge if they only have difficulty doing this with one factor present – such as pain, breathlessness or a very slow pace. Even all three of these in combination, scored at the highest levels under the supplementary guidance, will leave an applicant four points short of the score needed to obtain a Blue Badge.

40. This is contrary to Government guidance that makes clear that an applicant does not need to have multiple factors present to qualify for a Blue Badge. There is no suggestion from the Council policy documents that it has made a conscious decision to depart from that guidance. On the contrary, its own policy documents follow the wording of Government guidance closely.

41. In comments on a draft of this report the Council set out that it considered its approach was consistent with that guidance. But we disagree and can provide examples of where the scoring guidance given to assessors does not accord with either Government guidance or the its own Mobility Assessment Guidance.

42. First, both sets of guidance say that someone with a very slow pace may have “very considerable difficulty” walking (see paragraphs 11 and 15). But the Council’s supplementary guidance to assessors requires them to score a ‘very slow’ walking pace as meriting just one point. So, under the supplementary scoring guidance it is impossible for someone who can walk 80 metres, no matter how long it takes and without any other difficulty walking, to qualify for a Blue Badge.

43. Similarly, the Council has guidance which reflects that given by Government, which says that pain alone could be enough to show "very considerable difficulty” walking (see paragraphs 11 and 16). But it restricts the maximum points available at an assessment to two. Sometimes, assessors can only award one point even when the applicant reports what the Council describes as “excessive pain” (see paragraph 14).

44. Further, there is nothing in the guidance given to officers that suggests they have the power to recommend a Blue Badge in exceptional circumstances, even if an applicant scores under 10 points. For example, because the assessor recognises an abnormally high amount of pain in walking. This suggests the Council is not using its discretion in individual cases (or it is ‘fettering discretion’) when deciding who can receive a Blue Badge.

45. In response to our draft report the Council questioned this finding. It said that its assessors used some discretion in assessments when considering factors such as somebody’s posture, co-ordination and balance, or their rhythm, stride and gait. We understood the Council advises its assessors therefore, that they can consider certain factors not directly referenced in Government guidance. We considered this good practice. And we accepted that applicants may rarely present with just one factor making it difficult for them to walk. So, often the Council will make points awards, referencing more than one of its criteria.

46. However, this does not go to the heart of the criticisms set out above. We reiterate that Government guidance and the Council’s Mobility Assessment Guidance both suggest that an applicant can qualify for a Blue Badge based on consideration of one or two factors alone, so long as these result in “very considerable difficulty” walking. Even after allowing assessors had some leeway when assessing factors such as an applicant’s posture and gait, the Council’s guidance to its assessors did not provide for this eventuality. So, we saw no grounds to change the findings of fault set out above. In summary, we found fault with the supplementary guidance the Council gave to its assessors because it was incompatible with both Government guidance and its own Mobility Assessment Guidance.

47. We went on to consider the impact of this flawed policy on Mrs D. She had twice demonstrated to the Council she had a “very slow” walking pace as defined in Government guidance (see paragraph 11). Mrs D had also twice demonstrated walking with “excessive pain” (paragraph 14). She had provided the Council the supporting evidence it expected – through details of her medication (prescribed at maximum dosage) and the GP letter of support. But the Council had not properly assessed Mrs D’s potential need for a Blue Badge based on these factors given the flaws in its guidance.

48. We considered the impact of this on Mrs D was that she could not know whether, if the Council had used different guidance, it would have agreed to renew her Blue Badge. That caused uncertainty to her, which we consider a form of distress and therefore an injustice to her. In making a recommendation for a symbolic payment to recognise this distress (set out below), we took account of how long this uncertainty had lasted for. We also took account that the impact of our other recommendations, would prolong that uncertainty further.

49. The Council challenged our proposed finding on Mrs D’s injustice, having carried out the further ‘desktop’ review of Mrs D’s case described in paragraph 34. We could not give weight to this. First, we had not seen the alternative policy used by the Council and so could not say that this contained no flaws. Second, we had not seen the assessment and so could not say if the Council had followed the alternative policy properly. Third, we also considered this was no substitute for the Council assessing Mrs D’s case against a policy of its own, which did not contain the flaws we had highlighted.

Recommendations

50. As noted in paragraph 33, the Council has partially accepted our findings. It has agreed to offer an apology to Mrs D, a symbolic payment and make some changes make some changes to guidance it gives to staff who carry out Blue Badge assessments. However, for the reasons set out above, we do not consider the apology offered or the proposed policy changes to its guidance go far enough. It had also not indicated a willingness to consider the cases of others who could be similarly affected by the fault, which was something we recommended when issuing the draft of this report.

51. So, the Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

52. We set out below the actions the Council should take to remedy the injustice to Mrs D and other people caused an injustice by the Council’s fault.

53. To remedy the injustice caused to Mrs D the Council should, within three months of the date of this report:

• apologise to her, accepting the findings of this investigation;

• make a symbolic payment of £500 to her to recognise the distress caused to her by its fault; and

• agree to re-assess her eligibility for Blue Badge once it has carried out a review of its existing policy as detailed below.

54. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology we have recommended.

55. To ensure there is no repeat of the fault in this case the Council should, within three months of the date of this report, also complete a review of the supplementary guidance it gives to its assessment officers on scoring applicants who attend its assessment centre. It should ensure that guidance is compatible with its Mobility Assessment Guidance taking account of the comments made in our findings above.

56. Once the Council has completed the review, as well as re-assessing Mrs D’s application under the revised policy, it should write to all applicants refused a Blue Badge since 1 January 2024 following an assessment at its assessment centre. It should draw their attention to this report and invite them to re-apply.

57. We will expect the Council to provide us with evidence it has complied with the above actions.

Decision

58. We find fault by the Council causing injustice to Mrs D. We recommend the Council take the action described above to remedy that injustice.

59. We have published this report because we consider it in the public interest to do so, given the injustice caused to the complainant and the wider systemic problems the complaint has revealed.

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