What happened
Mrs B lived with sciatica, a protruding intervertebral disc, and had recently had surgery and radiotherapy for breast cancer and was feeling weak. She applied to the Council for a Blue Badge in May 2023. The Council offered her a telephone assessment and provided information which said: ‘’Please let us know if you have any special language requirements such as needing an interpreter before your appointment with as much notice as possible. We are happy for family or friends to act as your interpreter if they are able to do so.’’
Following the telephone assessment Mrs B was found ineligible for a Blue Badge. The Council’s officer noted that: ‘’she did not report any significant shortness of breath on walking. Information provided and supporting evidence does not indicate very considerable difficulty with walking. Her lumbar prolapse and radiculopathy would be expected to improve in time, with appropriate treatment.’’ [We presume this judgement was made following access to medical records, as it would not be typical for a council officer assessing for blue badges to be medically qualified].
Mrs B challenged the decision, stating that English was not her first language and that she had not been asked any questions about her breathlessness, which she described as her main issue. She appealed with help from a charity, who provided an interpreter for Mrs B to be able to communicate effectively.
Following the appeal, the Council offered Mrs B an in-person assessment, again providing information about an interpreter. The in-person assessment found Mrs B to be ineligible again, citing: ‘’The main reason for the applicant’s appeal was that due to English being their second language, they misunderstood the question regarding whether they have any breathlessness and therefore this was not taken into account. Both the information provided at their initial assessment and the additional information provided at their appeal has been taken into consideration”.
What was found
It was not the LGSCO’s role to comment on whether Mrs B did, or did not qualify for a Blue Badge, but to comment on any procedural fault there may have been.
The LGSCO found that whilst the Council did offer Mrs B an interpreter, twice, and she had not asked for one, it had been reported to the Council that Mrs B’s English was not sufficient to properly understand what had been sent to her. The Council did not consider whether to provide an interpreter, or whether its written offers of an interpreter had been properly understood. This was fault.
The Council has agreed to arrange a new in-person assessment for a Blue Badge for Mrs B and will arrange for an interpreter to be present.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Blue Badges are governed by Section 21 of the Chronically Sick and Disabled Persons Act 1970 and Guidance issued by the Department for Transport.
Although the Guidance does not make an explicit reference to the need for a provision of an interpreter, it does contain a specific mention, under ‘Further Advice’, of the Equality Act (EA) 2010, referring as it does to Section 149 of the EA – the Public Sector Equality Duty, which councils are obliged to follow.
The EA also contains provisions at Section 13 (Direct discrimination) and Section 19 (Indirect discrimination). As such, provision of translated documents or an interpreter eliminates direct or indirect discrimination (on the basis of a protected characteristic that is in play, such as a person from a particular racial background having limited or no command of English).
This case highlights the duty to provide an interpreter in adult social care as an important aspect of ensuring that individuals with limited English proficiency, or communication difficulties, have equal access to services.
The duty to provide an interpreter is primarily guided by legislation i.e., the EA which prohibits discrimination on various grounds, including race and language. Under the EA, service providers, including those in adult social care, have a duty to make reasonable adjustments to ensure that their services are accessible to individuals with disabilities or language barriers. Providing an interpreter can be considered a reasonable adjustment to meet the needs of those who require assistance due to language barriers.
Although Blue Badges do not fall under the ambit of the Care Act (CA) 2014, instead being governed by the CSDPA, it’s worth noting that there is a corollary in s4(4) of the CA: ‘’Information and advice provided under this section must be accessible to, and proportionate to the needs of, those for whom it is being provided.’’ However, the Care and Support Statutory Guidance states that it is not normally appropriate to use a family member, carer or friend as an interpreter, contrary to the Council’s message to Mrs B. This is because family and friends are not neutral parties, are not professional interpreters and inaccurate interpretations or communication may have serious legal or safeguarding consequences. This may not seem as important in the assessment for a Blue Badge, however we would expect the Council to apply uniformity in its adherence to its duties as clearly set out in law and ensure independent interpreters are offered for all council services.
The full Local Government Ombudsman report on the actions of Devon County Council can be found here: 23 007 363 – Local Government and Social Care Ombudsman