Contact: Alison Quant, Director of Environment (09162 845099),

e-mail: [email protected]

1. Summary

1.1 On 21 February 2007 the County Council resolved that temporary Blue Badges be issued to parents whose children are diagnosed with hip dysplasia and who are obliged to wear hip spica casts, which is contrary to current regulations. Councillors had been led to believe that other councils were issuing badges to this group.

1.2 Subsequent to the resolution officers have sought to come up with proposals that would allow the principles evinced in the motion to be implemented in a manner which was either patently or at least arguably lawful. Officers have also sought to verify the position in those authorities cited as acting unlawfully. Subsequent investigations show little contravention of the regulations and none of this on the basis of a formal policy.

1.3 Since the Council resolution the government has issued draft revised regulations which extend Blue Badges to children under 2 with particular medical needs, but not specifically for hip dysplasia.. However further changes to the regulations are intended and the consultation specifically questions whether further extensions are desirable, specifically to children with hip dysplasia and asks for the justification for this group receiving special treatment.

1.4 The report sets out the research and actions undertaken since the Council resolution and the options that could be pursued, together with the attendant risks. Operating a discretionary approach to enforcement is recommended as a way forward which would be quick and simple to achieve with the co-operation of District Council parking agents where decriminalised parking is in place. There is still a risk of legal action against the Council as the enforcing body, and consequential risk to its reputation. Should blue badge eligibility be extended to children under 2 with hip dysplasia, this would fall into abeyance, but if not this approach could continue albeit with an increased risk of legal challenge since Government will have actively considered the matter.

1.5 In the meantime, Members are advised to remain mindful of the Code of Conduct and of the general principles governing conduct as specified by the Secretary of State on the recommendation of the Nolan Committee. The 8^th general principle provides that "Members should uphold the law and, on all occasions, act in accordance with the trust that the public is entitled to place in them." Any breach of this principle could be interpreted as an act likely to bring the Member's authority into disrepute, and thus be in contravention of the Code of Conduct contained within the Constitution of Hampshire County Council.

2. Recommendations

2.1 To respond to the government consultation that eligibility for children under 2 should be extended to children with hip dysplasia in plaster casts, on the grounds of the difficulty exiting cars in conventional off street parking spaces.

2.2 Not to issue blue badges contrary to current legislation but await the outcome of the consultation on the revised regulations published on 27 March 2007, as set out in Option 1.

2.3 To request Basingstoke and Deane Borough Council, not to enforce off street parking controls within the borough where their permit for hip dysplasia is displayed, pending the outcome of the Government review and

2.4 In the event that the DfT's proposals to amend the Regulatory scheme do not permit the issuing of Blue Badges in relation to children under 2 with hip dysplasia, or that there is significant delay in the timetable for implementation, HCC should pursue an extension of the approach set out in paragraph 2.3 above, to cover as much of Hampshire as possible and to include both on and off-street parking.

3. Background

3.1 The issuing by Local Authorities of Blue Badges is governed by the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000 ("the Regulations"). Guidance on the operation of the scheme has also been issued by the Department for Transport ("DfT"). On 27^th March 2007 the DfT announced a strategic review of the Blue Badge Scheme, which is due to commence in September 2007, with implementation of any proposed changes in April 2008. In the meantime, however, they have also published for consultation proposed changes to the scheme which would enable the issuing of badges to children under the age of 2 in prescribed circumstances. It is currently envisaged that any changes emanating from this proposal will be implemented during the latter part of 2007.

3.2 The Blue Badge scheme provides a national arrangement of parking concessions for people with severe walking difficulties who travel either as passengers or drivers. It allows badge holders to park close to their destination, but applies only to on-street parking. However, many district local authorities also provide reserved off-street parking spaces for Blue Badge holders, and some also waive charges in off-street car parks for such badge holders. There are reciprocal arrangements with other EU member states.

3.3 The decision made by the County Council was in response to a difficulty which has arisen for the parents of children with hip dysplasia as the Blue Badge Scheme only allows a badge to be issued in the case of persons over 2 who have a permanent and substantial disability. Most children who are required to wear hip spica casts are under the age of 2, and in any event their indisposition is not permanent.

3.4 To issue Blue Badges in relation to this category of children would be unlawful, as the Regulations provide no scope for discretion to extend the criteria. To implement the decision would lead to a risk of a legal challenge by other individuals or representatives of disabled groups on the grounds that they were disadvantaged or discriminated against by being excluded from the additional concessions. The question therefore arises as to how best to take this decision forward and implement a scheme which avoids or minimises the risk of a substantial challenge.

4. Research Findings

4.1 During the course of its debate, the Council was referred to the fact that other Local Authorities were said to be operating discretionary schemes in relation to children with hip dysplasia, although the details of these schemes may not have been fully understood or appreciated. All of those referred to, eight in all, have been written to. Of those, one has issued badges for children under 2 needing equipment such as ventilators, but not hip spica casts, two have occasionally issued Badges to children with hip spica casts, and one only where they are transported in larger buggies. It is understood that one Local Authority has since stopped doing this, now realising that it was unlawful to do so. None of these authorities has a formal policy in relation to this and they appear to be issuing the Badges according to the discretion of officers. Three of the Authorities have never issued Badges in these circumstances, and one has not responded. A summary table and copies of the responses are attached to this Report at Appendix 1.

4.2 Basingstoke and Deane Borough Council resolved on 7 April 2007 to

Create a system within Basingstoke & Deane where parents and carers of disabled children can use the Disabled Parking spaces in B&D operated car parks.

Encourage and assist other car park operators within the Borough to adopt the system in their car parks.

Make Basingstoke a beacon for the provision of parking for disabled children; and

to write to the appropriate minister requesting an end to inaction and for measures be taken as a matter of urgency to modify the `Blue Badge' rules and to urge the Local Government Association to also lobby Government on this matter.

4.3 Borough officers have confirmed that they will be recommending a formal permitting scheme because of the number of complaints they already receive about unauthorised parking in disabled spaces. They have also indicated that any special permit issued by them will only apply to off street disabled parking spaces, but may be issued to persons living beyond the district boundary, who are considered to be within the catchment area of the town centre.

4.4 The scale of demand and supply of both on and off street disabled parking spaces in each District has been investigated. Some 60,000 Blue Badges have been issued to eligible applicants in Hampshire during the last three years. It is estimated that there are some 3,000 Disabled Parking Places on the Public Highway and 1,000 in off-street car parks. In addition, many retail stores and supermarkets provide marked bays at their premises, although it is not known how many there are. Very approximately it would not be unreasonable to assume that, in Hampshire, there are 10 Blue Badge holders for every marked Disabled Parking Place although Blue Badge holders can also park on yellow line parking restrictions for up to 3 hours provided they do not cause danger or obstruction and the traffic order does not specifically prohibit this.

4.5 In comparison it is not known how many cases of hip dysplasia there are in Hampshire as such information has not been obtainable from the Primary Care Trust. However, from records of the number of births and national statistics on the occurrences of hip dysplasia, it is estimated that there could be around 27 babies with this problem each year in Hampshire, most of which will be overcome in 6 months or so with operations and hip spica casts. In simple numerical terms therefore, issuing Blue Badges to this specific group for, say, up to a year should not cause any problems in practical terms and should not be challengeable under the Disability Discrimination Acts 1995 and 2005 on the grounds of disabled people being unable to access services as a result.

5. Options for Consideration

5.1 Option 1 - Delay Implementation Pending Revised Regulations Following a review and report to Government by the Disabled Persons Transport Advisory Committee ("DPTAC") in 2002, draft Regulations have been published in response to the acceptance of a recommendation that Blue badges should be issued to children under the age of 2 where their medical needs require the transport of bulky medical equipment at all times. These draft Regulations were published on 27 March 2007, after the meeting of the Council.

5.2 As currently drafted, the Regulations propose that Blue Badges should be issued, in the case of children under 2, where the child is either suffering from a medical condition that requires that they always be accompanied by bulky medical equipment which can be kept in a motor vehicle but which cannot be carried around with the child without great difficulty, or the child is suffering from a condition that requires that they must always be kept near a motor vehicle so that they can if necessary be treated for that condition in the vehicle or taken to a place where they can be so treated. Bulky medical equipment is given an inclusive definition, so that although it lists examples of equipment which may meet the criteria such as ventilators and suction machines, the list is not described as being exhaustive.

5.3 Looking at the draft revised guidance which was issued with the Regulations, this provides that the intention of the extension to the scheme is that the Badge should be awarded to children under 2 who have received a prognosis of limited life expectancy, or are diagnosed with an unstable medical condition which gives rise to the criteria in the Regulations which have already been referred to. Although this is only guidance, and does not have the force of the Regulations, if the final version remains in these terms, to depart from it could lead to challenge unless such a departure could be justified in some way.

5.4 The DfT has also published a document entitled "Consultation Questions". The very first question asks whether consultees consider that the list of bulky medical equipment should be extended, with one example given being for children with hip spica casts. However, in relation to that category, it also asks consultees to consider what the mobility difficulties for these children are, and in what way they differ significantly from any other two year old child being transported in a pram or pushchair. It is at this stage difficult to predict what the outcome of this consultation process will be, but clearly the Council will be able to respond in its own right, as well as publicise the consultation widely in order to ensure that a broad cross-section of responses is received by the DfT. The current timetable for implementation would see the new Regulations coming into force during the Autumn of this year.

5.5 The advantages of this option are that it would be entirely lawful and could be accomplished using existing vetting systems through the Blue Badge Unit within existing staff resources and budgets, and enforced on-street through Police wardens or District Parking Attendants. The risks are that children with hip dysplasia are excluded from the revised Regulations or that timescales become extended so that the Council's resolution cannot be undertaken within a reasonable time period. The earliest that badges could be issued under this option would be in the Autumn of 2007.

5.6 Option 2 - Implement Blue Badge Scheme for Hip Dysplasia Applicants with Minimum Delay In anticipation of the Regulations being amended in accordance with the Council resolution, Blue Badges could be issued almost straight away to qualifying hip dysplasia cases. The advantages of using an established system are outlined above and there would be no unacceptably long delays in carrying out the Council's decision. However, the major disadvantage is that this would currently be unlawful and there is no guarantee at present that the Regulations will change to confer ex post facto legitimacy on those Badges so issued.

5.7 To implement the decision on this basis would lead to a risk of judicial review proceedings being brought by either an individual or a representative body of a particular group of individuals alleging that the decision was unlawful and asking for it to be quashed. Defending such proceedings would be particularly difficult, if not impossible, as the law on the point is so clear. Any attempt to do so would run a very high risk of being ordered to pay the full legal costs of any Applicant. Furthermore, if such a challenge were successful, the likely outcome would be to have the policy quashed, and being ordered to revoke any Badges issued to this category of children.

5.8 Other risks which might flow from implementing the decision would be adverse publicity generated by groups who feel that they have an equally valid claim for the scheme to be extended to them. They may also seek redress via the Local Government Ombudsman by raising an allegation of maladministration. Also, at a corporate level, it is possible that the District Auditor would feel obliged to pursue the issue of the Council knowingly operating an unlawful policy and thereby incurring unlawful expenditure. This may lead to a Report being sent to the Audit Commission, with all of the attendant publicity.

5.9 Option 3 - Develop and Implement Local Parking Permit Scheme in Partnership with District Agencies Such a scheme would operate only within Hampshire alongside, but entirely separately from, the Blue Badge Scheme. Secure permits would be issued to qualifying applicants for, say, 12 months and would exempt the badge holder from the parking restrictions in designated disabled bays through amendment to the relevant parking restriction Traffic Regulation Orders ("TROs"). The secure permit would not confer the ability to park on yellow lines for up to three hours enjoyed by Blue Badge holders, but would legally permit parking in marked bays. Amendments to the TROs would need to be undertaken by the District Traffic Management Agencies or by the County Council, and enforcement carried out by the Districts themselves in Decriminalised Parking Enforcement ("DPE") areas and by Police traffic wardens where DPE does not yet apply.

5.10 The design, development and issuing of permits could be undertaken by the County Council or the participating Districts, but close cooperation with the districts would be essential both from the legal processing and enforcement points of view. It is suggested that, since hip dysplasia is the particular medical condition which the County Council has identified for this initiative, the scheme should be specifically aimed at that group in the first instance. However, in time, there is no reason why other conditions should not be included, providing full and proper account is taken of the resources needed to operate the scheme and the implications for on-street bay parking availability are assessed for the area.

5.11 Currently, parking control is authorised by the 1984 Road Traffic Regulation Act ("RTRA") and administered by the Districts on an Agency basis, save for East Hampshire DC. Parking is either `on street' on a public highway for which the County Council is the highway authority, or `off street', generally in car parks operated by the individual Districts. There is a statutory procedure that has to be followed should amendments be sought to on street parking restrictions that have been made pursuant to the RTRA. Each and every individual order that may be in force in respect of on street parking will have to be identified and the proposed amendments to these individual orders advertised. Any objections to the proposals must then be formally determined in the usual way.

5.12 In the event that a District may not wish to co-operate with this Option, then (subject to the precise terms of the particular Agency Agreement with that District) there is likely to be a reserve power for the County to take the appropriate action to pursue the proposal directly. Should an order be made in accordance with the proposal for on street disabled parking bays, then for the order to be legally enforceable, signs have to be provided in accordance with the statutory Regulations. The current Regulations governing signing do not cater for this type of proposal and, therefore, approval from the Secretary of State will be required. There is no guarantee that this consent will be forthcoming.

5.13 The advantages of a local permit scheme are that it would not contravene the Blue Badge Scheme and, provided it has the support and co-operation of the Police and District Councils, it would be entirely lawful and any judicial review challenge would have to based on grounds of irrationality, in that there is already a parking scheme for mobility impaired persons and the ad-hoc extension of it by the Council may be difficult to justify. This is a more difficult basis of challenge than illegality, but would have a fairly significant prospect of success. The guidance issued with the draft regulations comments on the fact that some local authorities have introduced their own local schemes, for the most part to control demand for parking spaces arising from the growth in the number of blue badges issued and to counteract the perceived abuse of the national Scheme. The DfT is critical of this approach, and encourages local authorities who have done this to review their position once the revised regulations have made the national scheme work effectively.

5.14 A local permit scheme does have the very significant disadvantages of only being workable in complete co-operation with a number of other parties and would be expensive and time consuming to establish, mainly due to the TRO process which could take anything up to 12 months to complete on a district by district basis if significant objections were raised at the formal consultation stage, say by existing Blue Badge holders who could be disadvantaged. The production of difficult-to-copy permits could also be an issue. The Government issues badges with a hologram for the national scheme, and requires that badges are laminated. Overall there is a high risk that such a scheme would be, at best, only partial in terms of its coverage, would be open to confusion and abuse, would be vulnerable to demands for expansion to other disadvantaged groups which could swamp the availability of on-street parking places, and above all could take a year to implement. This approach may not therefore meet the aspirations of Members

5.15 Option 4 - Develop and Implement Unofficial Permissive Scheme with District Agencies Such a scheme would operate in much the same way as the local parking permit scheme but would not be enforceable in that no exemptions would be introduced to the parking TROs. A permissive scheme would be entirely locally based and would rely on District Council parking attendants not pursuing enforcement action against cars registered for hip dysplasia sufferers transport for a defined period. The advantage of such a scheme would be that it is relatively inexpensive and quick to implement and for the numbers involved is likely to operate satisfactorily.

5.16 There are however significant risks in as much as the participating Councils could be accused of encouraging dishonest practices and favouring a particular disadvantaged group above all others who may have equally good cases for special consideration. They could be challenged by Blue Badge holders unable to park in a bay occupied by a vehicle without a Blue Badge permit. Schemes could only operate in Districts with Decriminalised Parking Enforcement since they manage the Parking Attendants and this would undoubtedly cause confusion and lead to penalties if permits were wrongly used elsewhere, including Districts who had not agreed to adopt this approach. These risks have already led to Basingstoke and Deane Borough Council offices to express concern about this option applying in their area.

6. Conclusion

6.1 It is clear from the options outlined above that none are completely acceptable both in terms of their legality and their ability to meet Members' aspirations in terms of early implementation. Option 1 is procedurally the safest in that it would use the nationally approved and enforceable Blue Badge system but it is not currently capable of dealing with hip dysplasia and it may be some time before it is amended to do so, if at all. Option 3 is the safest in legal terms, but the expense and effort of putting a local, enforceable permit system into place could be prohibitive and relatively long term and could only really be justified if extended for far greater potential use.

6.2 Option 4 is a technical possibility, but permits would have to be produced, local agreements on non-enforcement arranged, and the scheme may only be accepted as a short term and somewhat unsatisfactory stop gap or not at all by the district councils. The risks associated with Option 2 would require particularly careful consideration since it is currently unlawful.

1 Section 100 D - Local Government Act 1972 - background papers

The following documents disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

NB the list excludes:

1 Published works.

None

2 Documents which disclosure exempt or confidential information as defined in the Act.

None

Appendix 1

SUMMARY OF RESPONSES FROM LOCAL AUTHORITIES SAID TO HAVE EXTENDED THEIR OWN BLUE BADGE SCHEME