Disabled Persons (Badges for Motor Vehicles) (Scotland) Amendment Regulations 2014 (SSI 2014/145)
We come to agenda item 4. The regulations were considered by the Delegated Powers and Law Reform Committee at its meeting on 10 June. The committee did not draw the attention of the Parliament to the regulations on any grounds within its remit.
For our consideration of the regulations we are joined by Scottish Government officials Stuart Foubister, divisional solicitor, legal directorate; Graham Thomson, transport accessibility and road safety team leader, transport policy directorate; and David Jamieson, blue badge policy officer.
I invite members to ask any questions that they might have about the regulations. Linda Fabiani indicated earlier that she has a question.
I do. It is a constituency query on which I would appreciate the officials’ view. The question was previously submitted to a your say session, although the lady involved was not able to come along. It is a very simple question about the possibility of having a duplicate blue badge. The straightforward situation is that the lady concerned has a blue badge disability but is completely incapacitated and cannot drive at the moment because of her advanced problem. She has to take her blue badge out of her car to put it into a car belonging to a member of her family or a friend when they drive her to hospital, which means that her own car is badly parked and she is liable to end up with a fine. Have you considered having duplicate blue badges for specific circumstances? Could that be done at the discretion of the local authority? Would there be anything to prevent the local authority from making the odd exception in cases such as that lady’s, in order to be helpful?
A general starting point is that the way in which the regulations and scheme are worded limits an individual to a single badge. I do not think that the possibility of having duplicate badges has been considered. Among the reasons why that is the case is probably just a desire generally to keep in circulation only the number of badges that are needed. A badge is given to an individual, not to a vehicle. I guess that that is the general reason why a person has just a single badge.
Because the regulations are framed in that way, the local authority cannot necessarily apply discretion. Overall, the blue badge scheme is designed to give the individual a right to a blue badge. If you were to give duplicate blue badges, there would be a concern that two badges could be used at once. It is therefore not something that we have considered—at least, not recently; I am not saying that it has never been considered.
I understand the idea of trying to limit fraud. That is perfectly acceptable. However, it seems to me that there are always things that are absolutely genuine exceptions. It is all very well having the right to a blue badge but, in a situation in which it so happens that you cannot use your own car—because you happen to have a stookie or something and you cannot drive—and you have to use your blue badge in someone else’s car, the position that you describe seems a bit harsh. I am not asking you to change the legislation, but I would like you to have a think about that. It bothers me that there is no discretion that can be applied by the local authority. I understand that that is the situation with regard to giving out duplicate blue badges, but I would like you to have a think about what could possibly be done in the situation that I describe and get back to me, because the current situation seems to be penalising someone unduly.
I would be more than happy to consider the particular circumstances that have been brought to your attention.
If I read the impact assessment correctly, roughly 100,000 people are entitled to the current DLA mobility component, and 60,000 of those people take up a blue badge, because they have got a car.
Yes.
And you expect 20 per cent of those people—that is, 12,000 people—to lose that right under the new assessment, when they transfer to personal independence payments.
The Department for Work and Pensions’ estimate is roughly 20 per cent across all awards.
So roughly 12,000 people in Scotland will lose their blue badge—60 per cent of 100,000 would be 60,000 and 20 per cent of 60,000 would be 12,000; that is my arithmetic.
Your arithmetic seems sound.
Of those, how many are people who should have been entitled to a lifetime badge? Are they part of the 20 per cent who will lose the badge, or are they part of the 48,000 who will continue to have it?
It is probably easier to consider the 60,000 figure. We do not know how the provisions in the regulations would impact on those who are expecting to receive decreased awards or no award when they are reassessed for PIP. However, with regard to the 60,000 figure, all of those who have an indefinite award would be able to continue to passport. The second division concerns all those who have a fixed term higher-rate mobility component DLA award. If they dispute their PIP decision, they will have recourse to a further blue badge for a period of time, as they challenge the decision. The two criteria should, in effect, capture everyone within that 60,000 figure, or, at least, the vast majority of them.
My thinking was that those who should have qualified for a lifetime award will be part of the 48,000. The reason why they qualified in the first place will still apply, and I cannot imagine that they would be downgraded in terms of their PIP assessment. However, the figure also covers those who will appeal their downgrade—that would be the 12,000. Is that right? This is the way that I am thinking of it.
Basically, 12,000 people will lose their blue badge. If they appeal their downgrade, they can keep their blue badge while they are appealing. If their appeal is unsuccessful, or after a year, their blue badge will expire. Is that right?
That is right.
I am not sure whether you can answer my next question. Did the Government look at allowing those who have blue badges to keep them?
12:45
Under regulations that were made last year, people who have a blue badge are entitled to keep it until it expires. In general, a badge is valid for up to three years. We do not have the exact figures to tell us the percentage of people who will lose the badge, but the DWP estimates that approximately 70 per cent of people have lifetime or indefinite awards and that 30 per cent of people have fixed-term awards, so we are talking about protecting those 30 per cent while they appeal.
After a year, some of those people will lose their entitlement, if they appeal and their appeal is unsuccessful. We could not consider keeping the 30 per cent on indefinitely, because some of them will legitimately lose their award, which has a fixed term for a reason—for example, their condition may fluctuate and change.
So you did not look at what I asked about. If those people are unsuccessful on appeal, they will lose their blue badges.
I will double-check one other thing. What is happening with bus passes and concessionary travel? Will that be dealt with under separate regulations?
That is not part of the scope of the work that we are discussing, but we are not aware of anything being taken forward on concessionary travel. The circumstances of concessionary travel differ.
Broader provision was put in place last year, which covered more than blue badges. We wanted to ensure parity on passporting and non-passporting benefits between DLA and PIP as far as we could. That covered new applicants for blue badges. Now, we are trying to cover as many holders of existing badges as we can.
I return to what I talked about earlier. What discretion does the legislation that allows local authorities to issue blue badges give them over who is issued with a blue badge? Could discretion be used to issue duplicates?
The eligibility criteria are set out clearly in regulations. Local authorities largely need to follow that when they decide on entitlement. It is always a local authority’s responsibility to interpret the meaning of eligibility criteria and to apply them to local circumstances.
I just wondered whether, if local authorities could use discretion under that legislation, you would not need to bother running away and worrying about the issue this time around.
The regulations on eligibility are fairly clear. In addition, we publish an extensive code of practice, which local authorities follow and have said that they want to follow in the vast majority of cases. We occasionally have discussion groups that involve local authorities. We had blue badge workshops with them earlier this year, when we discussed eligibility in the round.
Local authorities use the code of practice and the regulations to determine the standards that apply. They have some flexibility, as long as they exercise it within the regulations. I am sorry—I realise that I am not answering the question.
Yes, that was very much civil servantspeak. Thank you.
It absolutely was.
I would have thought that although a local authority must implement the law as set out in the various Scottish statutory instruments, the SSIs would not prevent the authority from going further if it wanted to do so. I might be wrong on that. I have been trying to get to the nub of the issue for a while, because of a constituency case that I am dealing with.
Does the same discretion apply in relation to concessionary travel? You might not be able to provide a definitive response today, but it would be helpful if you could give the committee some guidance, because such issues come up quite a lot. What happens if someone is in a grey area? I have received correspondence about that.
Local authorities cannot issue a badge or a travel permit to someone who is not eligible under the regulations—the person must fit in. The categories of passported benefits are only part of the story; there are mobility assessments and so on, but the local authority has no discretion to go beyond that. If someone does not fit into one of the categories of eligibility, they cannot be given a badge.
There is always the other route whereby people can apply, as Stuart Foubister said: the mobility assessment. Ultimately, that is where local authorities have discretion, because they conduct the independent mobility assessments and must make a judgment. We provide guidance about how assessments should be done, but ultimately whether someone gets a blue badge is a judgment call when they go through the non-passported route and make an application directly to the local authority.
In the system that has been operating up to now, if a person loses their entitlement to DLA or their entitlement changes and they lose their passported eligibility for a blue badge, do they lose their badge immediately?
The existing badge runs to its expiry date—that was in last year’s regulations. Even if the person is no longer eligible through their benefit, their badge will run to its expiry date.
Sorry, perhaps I am not making myself clear. Let us say that the badge has expired and the person’s circumstances—under the scheme as was—are such that their entitlement to DLA has been lost or downgraded and they no longer qualify for the blue badge under the passporting arrangements. Does the person lose the badge immediately?
If the badge has expired, it is no longer valid and the person must apply for a new one. The test is whether they are eligible at the point of application.
One of the categories that we are putting in just now is people who have appealed the decision that took them out of eligibility. That creates an interim eligibility for another badge while the appeal is running.
Under the current system?
That is what the regulations that we are considering are putting in, yes.
I am aware of that. I am coming on to that, but I was asking about the system as it is now. Is there an interim passport entitlement for someone who seeks to appeal a decision?
No.
So in essence, the Scottish Government is putting in a mechanism that will improve the current system, because someone who appeals will get a year’s stay of execution.
That is a new development, which takes account of the new system of personal independence payments.
And currently if someone appeals they do not have that right.
No.
As far as I am aware, the new approach is a response to a suggestion that this committee made. Thank you.
I think that we have exhausted questions. Do members agree to note the regulations?
Members indicated agreement.
Given that we suggested them, that was a good idea. [Laughter.] I thank the witnesses for coming along and answering our questions.