The Investigation

The complaint

1. Mr X complained the Council failed to properly consider the law and his medical evidence when looking at his application for a Freedom Pass. Mr X said the Council’s decision has caused him a financial loss.

Legal and administrative background

The Ombudsman’s role and powers

2. 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)

3. 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)

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)

Principles of good administrative practice

5. In 2018 we published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes:

• being open and clear about policies and procedures and ensuring information, and any advice provided is clear, accurate and complete; and

• stating the criteria for decision making and giving reasons for decisions.

Relevant law and guidance

6. The Transport Act 2000 says concessionary travel is available to passengers over 65 and any passenger a council decides is disabled. In London, a concessionary travel pass is called a Freedom Pass.

7. There are seven categories of disabled people who are entitled to a concessionary travel pass, including category four - people who have a disability, or have suffered an injury, which has a substantial and long-term adverse effect on their ability to walk.

8. It is for a council to determine whether someone is a ‘disabled person’ for the purposes of concessionary travel.

Government guidance

9. The Department for Transport (DfT) has published guidance (“the guidance”) to local authorities on assessing eligibility.

10. The guidance says the most robust way of assessing eligibility is likely to be via other relevant state benefits.

• Higher Rate Mobility Component of Disability Living Allowance (HRMCDLA).

• 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.

11. Applicants claiming these benefits will be able to provide documentary evidence of their entitlement. An applicant receiving the HRMCDLA or PIP will be able to produce an award notice letter from the Department for Work and Pensions (DWP). Even where such a letter does not in itself automatically entitle the applicant to the statutory concession, councils may wish to consider the degree to which it provides evidence in support of the conclusions of independent medical assessments.

12. For applicants outside the above categories, the guidance recommends that the next most robust means of assessment is likely to be via the authority lists of registered blind, partially-sighted, or profoundly or severely deaf people.

13. For other applicants, where there is any doubt about eligibility, the guidance recommends councils seek independent medical evidence to inform their decision. The cost of this should not be borne by the applicant.

14. The guidance recommends that independent health professionals should undertake assessments in place of GPs. In the case of assessment of the inability to walk, for example, occupational therapists (OTs) or physiotherapists are often best placed to assess eligibility due to their professional knowledge of mobility.

15. For those in category four, the guidance states “it is envisaged that passes will be issued to people who can only walk with excessive labour and at an extremely slow pace or with excessive pain”.

The Council’s process

16. The Council does not have a published policy setting out how it assesses Freedom Pass applications.

17. The Council’s Freedom Pass application form lists the seven categories of disability and asks applicants to say which one applies and to provide supporting evidence. Where applicable, the form takes into account whether the Council has registered the person’s disability.

18. There is no provision for a person to apply on the grounds they receive a state benefit. And there is no reference to the Council undertaking an independent medical assessment to assess eligibility if needed.

19. In response to our enquiries, the Council said its Freedom Pass team considers all evidence provided and any information it holds about the applicant to corroborate eligibility. Where this is not possible, it will offer an independent assessment.

How we considered this complaint

20. We produced this report after examining relevant documents and interviewing the complainant.

21. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

22. In December 2021, Mr X applied for a Freedom Pass under category four (has a disability, or has suffered an injury, which has a substantial and long-term adverse effect on his or her ability to walk) and enclosed supporting documents, including an NHS letter dated January 2020.

23. An officer wrote to Mr X later that month to ask for further supporting evidence, that was less than a year old.

24. Mr X responded in January 2022, providing a hospital letter dated within that month. This letter confirmed Mr X was:

• known to the hospital and his hip was deteriorating and now affecting his mobility significantly;

• still independent of a walking aid; and

• on the waiting list for a hip replacement.

25. The Council wrote to Mr X again in March 2022 to refuse his application. The Council explained:

• the medical evidence provided does not substantiate the criteria applied under;

• no ongoing hospital/specialist/clinic appointment letters dated within a year and future appointments [were] provided; and

• Mr X had the right to request an appeal within one month.

26. Mr X appealed to the Council later that month. He pointed out that, while he did not have a specific appointment date, the hospital letter explained he was awaiting a hip replacement. Due to a Council system error, it was not aware of Mr X’s appeal.

27. In June 2022, Mr X complained to the Council. He explained the Council had taken more than three months to decline his application and it had not responded to his appeal.

28. The Council responded to Mr X that same month to explain it could not find his appeal on its system and asked him to resend this.

29. Mr X responded with a copy of his appeal. The Council apologised for the inconvenience and asked Mr X to forward any supporting evidence to his appeal so it could consider this further.

30. Mr X told the Council, as he felt a failure to understand the evidence he had already provided was the crux of his appeal, he had no further evidence to provide.

31. The Council’s complaints officer called Mr X later in June 2022 to discuss his complaint and appeal, and to ask for supporting evidence. During this call, Mr X explained he wanted the Council to rely on the evidence he had already supplied.

32. The Council wrote to Mr X in June 2022 to confirm:

• it had considered all the evidence he had supplied, including the letter of January 2022, and had decided he was not eligible for a Freedom Pass;

• the evidence Mr X provided showed he had a medical condition, but not an impairment where he suffered with an injury which had left him with a substantial and long-term adverse effect on his ability to walk;

• Mr X had not evidenced any future treatments or appointments directly related to his mobility within the next year;

• while Mr X’s mobility may be affected on occasions, it did not leave him with a substantial and long-term adverse effect on his ability to walk; and

• there was no further opportunity to appeal its decision, but Mr X could reapply for a Freedom Pass if his condition changed.

33. Mr X wrote to the Council in July 2022 to explain he was preparing a complaint to us. He asked the Council to confirm its email was its final position and questioned the Council’s interpretation of his evidence and reasons for rejecting his application.

34. The Council responded to Mr X later that month to say it had not upheld his complaint and explained:

• it was sorry for the system failure which meant Mr X’s appeal was delayed;

• Mr X’s application had originally been assessed by a senior officer who considered all the available evidence, including the hospital letter of January 2022, and decided Mr X did not qualify for a Freedom Pass under category four; and

• once Mr X’s appeal was picked up, he opted not to provide any further supporting evidence but the evidence he had already supplied did not demonstrate he qualified for a Freedom Pass.

35. Mr X complained to us in August 2022.

36. In September 2022 the Council wrote to Mr X offering an OT assessment to determine his eligibility, but he did not take this offer up.

37. In response to our enquiries, the Council explained the following.

• Its Freedom Pass team currently checks all evidence provided and any information it holds about the applicants. If it cannot determine eligibility, it will then offer an independent assessment.

• While it does not currently have a specific policy in relation to Freedom Passes, it is going to introduce one. This will include receiving HRMCDLA and PIP (at eight points or more in the ‘moving around’ category) as automatic criteria for a Freedom Pass. It will also include discretionary disabled Freedom Passes for applicants who do not meet the statutory eligibility criteria but can evidence significant mobility issues due to breathing or musculoskeletal conditions.

• For the financial year 2022/23, it received 2,008 applications for Freedom Passes and refused 238 of those.

Conclusions

38. We are not an appeal body. This means we do not take a second look at a decision to decide if it was right or wrong. Instead, we look at the processes a council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.

39. We expect councils to follow guidance unless they have a good reason not to. We also expect councils to be open and clear about policies and procedures. The Council does not have a published policy, but its practice is not in line with guidance because it does not follow the process of first considering relevant state benefits, then registrations, and then offering an independent medical assessment. The practice also lacks transparency over how applications are assessed and when an OT assessment would be offered. The Council has not provided any good reasons for departure from the guidance, and this is fault.

40. The Council did not consider whether Mr X was receiving relevant state benefits or offer him an independent medical assessment and decided on his application without following the guidance. Mr X was not offered an OT assessment until after he complained to us. This is fault. Mr X missed the opportunity to have his request considered properly which is injustice. Others may also have missed the chance to have their requests properly considered, which is injustice. However, as we cannot say whether the Council would otherwise have issued a Freedom Pass, we could not say there was injustice in the form of a financial loss to Mr X.

41. The Council did not deal with Mr X’s application or appeal promptly. It took three months to consider Mr X’s initial application and then a system error meant his appeal was not logged and picked up for over two months. This delay is fault which caused avoidable frustration and uncertainty for Mr X which is injustice.

42. The Council responded to a draft of this report to confirm it had no objections to the report or the proposed actions.

43. In comments on a draft report, Mr X said the Council refused his application originally because he did not have any appointments in the next 12 months, not because he did not have a disability. Mr X said acceptance he had a disability in March 2022 should have been enough to approve his Freedom Pass application at that point. However, the Council did not follow the right process in reaching its conclusions initially, so we could not say it should offer Mr X a Freedom Pass, regardless of its stance on his disability at that point.

Recommendations

44. 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)

45. To remedy the injustice set out above, the Council has, within one month of the date of this report, agreed to:

• apologise to Mr X for the fault identified above;

• pay Mr X £300 to recognise the uncertainty caused;

• pay Mr X £100 to recognise the avoidable frustration caused by the delay;

• request relevant evidence from Mr X and reconsider his application for a Freedom Pass, based on DfT guidance and the applicable law. If Mr X is not eligible, then provide an explanation as to why he is ineligible.

46. Within three months of the date of this report the Council has agreed to produce a policy in line with DfT guidance and publish this on its website.

47. Our investigation found there was likely to be injustice caused to others by similar fault. Within three months of the date of this report, the Council has agreed to review the 238 rejected Freedom Pass applications from the financial year 2022/23 in line with its new policy. If any applications are found to have been refused without following the DfT guidance or applicable law, the Council should reassess these and if a Freedom Pass is then agreed, offer a remedy for the uncertainty caused. If a Freedom Pass is not agreed, applicants should be offered the option to appeal.

Decision

48. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mr X. The Council should take the action identified in paragraphs 44 to 47 to remedy that injustice.

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