Blue Badge holder wins appeal against imposition of penalty charge after forgetting to display badge

About this case:

• Citation:
  2024UT17
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Sheriff Dunipace

Martin Roberts, who suffered from a neurological condition that resulted in frequent memory difficulties, was given the PCN by North Lanarkshire Council in June 2023. He challenged the decision of the FTS that it was unable to take mitigating circumstances into account in deciding the appeal.

The appeal was heard by Sheriff Colin Dunipace of the Upper Tribunal, and decided based solely on written submissions from the parties.

Gain from misfortune

The original appeal against the PCN was considered by the FTS entirely on the basis of documentary evidence and written submissions. It was found in fact that the appellant had parked his vehicle on a single yellow line on Academy Street, Coatbridge, and that he was aware of the parking restrictions at that location. The Blue Badge disabled parking scheme applied at the location where the appellant parked.

In his written submissions, the appellant, who suffered from Type 3 Ehlers Danlos Syndrome and other conditions, explained that he had a moment of “brain fog” and had forgotten to display his blue badge. While the condition did not impair his driving ability, it meant that simple tasks had been overlooked by him due to failing to mentally process them.

The FTS explained in its decision that mitigating circumstances could not be taken into account at the Tribunal stage, and only the Council could take them into account and cancel the PCN. Leave to appeal the FTS decision was granted on the ground that the legal member had failed to apply the Equality Act 2010 properly in the circumstances of the case.

It was submitted by the appellant that upholding a PCN based on a disregard of his cognitive impairment constituted direct discrimination against disabled people. The Council had unjustly made a financial gain from his misfortune. No further submissions were made by the respondent in respect of the matter.

Unfortunate simplification

In his decision, Sheriff Dunipace observed: “In the present appeal the appellant has quite clearly made repeated references to his disability, and stated that as result of this disability that he was unable to comply with the terms of the Blue Badge Scheme on the date in question. If this was the case then this would not simply be a mitigating circumstance, but might in fact be a reason why the appeal should be upheld.”

He continued: “The Council state that they ‘appreciated’ that he may have suffered from such impairment, but then simply disregarded this without any explanation as to why they did so, other than to re-iterate the requirements of the Blue Badge Scheme in relation to display of the Badge. This was an unfortunate simplification of the medical matters put forward by the appellant, and suggests that the circumstances of the appellant were not fully considered on a case by case basis.”

Asking whether the legal member fell into error, the sheriff said: “Similarly in the decision of the Legal Member there was again simply a reference to the appellant’s medical condition as being a mitigating circumstance, rather than a consideration that it might have been a valid reason why the
PCN might be cancelled. Again this might give the appearance that the terms of the Equality Act 2010 had not been considered, even if they had in fact been considered by the Tribunal.”

He concluded: “For the avoidance of doubt had this appeal simply been on the basis that the display of the Blue Badge would have made his car a potential target for theft, then on the basis that this would, at best, have been a mitigating circumstance this appeal would have been refused.”

The appeal was therefore allowed and the case remitted to the First-tier Tribunal for reconsideration.