Smeaton, R (On the Application Of) v Secretary of State for the Department of Transport

The claimant sought judicial review of the decision refusing renewal of a blue badge and challenged the lawfulness of the statutory regime for blue badges. The court found the claim was out of time and, on the merits, there was no public law error in the assessment decision or in the regulations. The regulations (including regulation 4.1 and regulation 4.2(f) of the Disabled Person (Badges for Motor Vehicles) (England) Regulations 2000, applied under section 21(7) of the Chronically Sick and Disabled Persons Act 1970) provided qualifying descriptions and permitted use of independent mobility assessors; those assessors met the statutory criteria in regulation 2.1. The claimant’s medical evidence did not address the statutory test and there was no evidence that medical opinion had been overruled, or that the scheme was discriminatory, negligent, or otherwise unlawful.

The application for judicial review was refused and permission to appeal denied. A summary costs order of £640 was made against the claimant.

The claimant, formerly resident in the London Borough of Harrow, applied for judicial review of a decision refusing to renew his blue badge. He alleged a range of complaints about the regulations and their application: that the scheme was cruel or inhuman, discriminatory (including under the Equality Act 2010), unfair to people with temporary disabilities and those with dyslexia, that the use of independent assessors was draconian and resulted in medical opinion being overruled, and that there was negligence and breach of the UN Convention on the Rights of Persons with Disabilities.

Procedural posture: The claim was commenced on 8 May 2013 and permission to apply for judicial review was granted by a Deputy High Court Judge on 25 January 2014. The Secretary of State was the sole participating defendant; a private company (Access Independent Limited) which carried out the mobility assessment and the local authority were named but did not participate. The claimant had previously been issued a badge in 2009; his 2012 renewal was refused after assessment by the independent assessor and an internal appeal was dismissed on 8 August 2012.

Issues framed:

• Whether the assessment and the regulations, including the use of independent mobility assessors, were lawful and complied with statutory and human rights or equality obligations;
• Whether the assessor had misapplied or ignored medical evidence or overruled medical opinion;
• Whether the scheme and regulations were discriminatory or otherwise unlawfully applied to the claimant;
• Whether the claim was brought in time.

Court’s reasoning and conclusions: The judge held the claim was not brought promptly and was filed well outside the three month judicial review time limit. On the merits the assessor had applied the statutory test under regulation 4.2(f) (as read with regulation 4.1) for permanent and substantial disability causing inability to walk or very considerable difficulty in walking; the assessor complied with regulation 2.1 requirements (independence, qualification, training and expertise). The claimant’s medical evidence did not address the statutory criteria and there was clear evidence the assessor had considered pain. There was therefore no public law error, no evidence of discrimination, no abuse of discretion, and no basis to impugn the regulations themselves as cruel, inhuman or unlawful. The Deputy High Court Judge’s reasons for granting permission had been based on points not supported by the evidence and the claimant’s later, new arguments did not identify an error of law. Permission to appeal was refused. A summary costs award of £640 was made in favour of the Secretary of State.

The court briefly noted the claimant remained free to pursue fresh proceedings in the appropriate time and manner but recorded the practical difficulty of re-advancing substantially the same grounds after this refusal.

The application for judicial review is refused. The claim was both out of time and without merit: the assessor applied the statutory criteria correctly, the assessor met the independence and qualification requirements imposed by regulation 2.1, the claimant’s evidence did not meet the qualifying description in regulation 4.2(f) as read with regulation 4.1, and there was no discrimination or other public law error. Permission to appeal was refused and a summary costs order of £640 was made against the claimant.