C suffered from a weakened leg and damage to her back as a result of contracting polio as a child. C, a
“Blue Badge” holder, applied for a new badge from D when she moved to D's Borough. ”Blue badges” are
awarded to disabled drivers under the Disabled Persons (Badges for Motor Vehicles) (England) Regulations
2000. It was D's standard policy that they did not issue badges to new applicants without an assessment
by an Occupational Therapist. C said she could not attend an assessment and that evidence from her GP
should be sufficient. A proposal was eventually made that the eligibility assessment should take place at
C's home and C was granted a “Blue badge” as a result. C nevertheless applied for damages alleging
disability discrimination pursuant to s 21D(1) and (2) of the DDA 1995 and breach of her Article 8 rights
under the ECHR. DJ Silverman awarded damages of £5000 for disability discrimination and rejected the
claim under the HRA 1998.
The Court of Appeal held that there was no less favourable treatment.
C had claimed that the less
favourable treatment was insisting that she should allow an Occupational Therapist into her home to carry
out an assessment. Her comparator was a person who was able to attend the assessment centre. They
would not have been treated in this way. The Court of Appeal found that this was not an example of less
favourable treatment but a concession made in C’s favour. The Court held that the correct comparator
ought to have been an applicant for a ’’Blue badge” who was unable to attend the centre for assessment
for a reason unrelated to disability or perhaps an applicant who was claiming some other disability benefit
who was unable to be assessed at the centre for a reason unrelated to disability. There was no evidence
as to the treatment of these comparators and D's policies required all applicants were to be treated the
same way. The appeal against the finding of indirect discrimination was allowed. There was no evidence
of finding that, as a group, applicants for “Blue badges” would find it difficult to attend assessment
centres. This was a “unique” case. Finally, the District Judge erred by not considering what was
reasonable from D's point of view, in particular the need to deter fraudulent applications for “Blue
badges” and in following Department of Transport Guidelines.
This is likely to be a case which is confined to its facts and the Judges raised a warning note about
claimants who bring judicial review proceedings (with a cost to local taxpayers) when public bodies have
taken steps to be accommodating, as D had been in this case. At the end of their judgment, the Court of
Appeal highlighted the importance of courts considering what was reasonable from the local authority's
point of view and that in this case as a matter of evidence, a fact which was strongly in D's favour was that
D were prepared to carry out and assessment in C’s home.