Donna Reynolds: Disabled kids have a right to services

Of all the child-related tasks that fall to me in our house, taking our children to the opticians is right up there as one of the worst. It is second only to the annual family expedition to buy school shoes (if we're lucky; our children never fail to surprise us with just how much damage they can cause to their shoes before they have outgrown them).

The opticians trip is chaotic, noisy and always seems to take twice as long as originally anticipated. It is impossible to get in and out unscathed, even with an appointment, and any sense of achievement I feel from having kept my cool when my children’s whining rapidly descended into full-blown tantrums is quickly wiped out by the judgmental stares afforded to me by other customers.

We try to help ourselves by booking the earliest appointments available, which tend to be the quietest time of the day. Being the first customer avoids the knock-on effects caused by the appointment before us running over and fewer customers means less noise and general hustle and bustle, making for a much calmer, and more pleasant, environment for all. The trouble is, our opticians have a policy of only booking children’s appointments in the afternoons. Why this is I do not know, but they have yet to make an exception at my request.

Some might say that my children should simply learn to behave themselves and businesses should be able to run as they see fit, and perhaps they are right. However, in respect of those children for whom their challenging behaviour can be explained by medical, sensory, behavioural or communicated-related reasons, they are wrong. The barriers faced by an individual because of their disability must be removed by a provider of goods or services so that individual can access these in the same way, as far as this is possible, as a non-disabled individual would be able to.

Autism Spectrum Disorder (ASD) affects an individual’s social interaction, communication, interest and behaviour and while I do not have any direct experience of any children with ASD, it is not difficult to imagine that some may display challenging behaviours in environments such as those as I have described. Why, then, are there traders and service providers implementing policies potentially placing disabled individuals at a substantial disadvantage (something that is more than minor or trivial; so, a low threshold) with apparent disregard to the duty to make reasonable adjustments to those polices under the Equality Act 2010?

What is reasonable depends on a number of factors including the size and resources of the business, the type of service, the practicability of the adjustment and the extent of any disruption caused. But the adjustment need not remove the substantial disadvantage that the disabled individual faces, only alleviate it. Asking for a change to a booking system to allow a child with a disability to attend a morning appointment does not seem unreasonable and perhaps if this were the reason for my request it may well have been granted.

But what if the duty to make reasonable adjustments were to put other non-disabled individuals at an inconvenience? In light of the decision of the Supreme Court in the case of Paulley v First Group Plc, there will be occasions where the duty will put other non-disabled individuals at an inconvenience. The potential detrimental impact felt by non-disabled individuals should not be the determining factor for traders or service providers. The inconvenience caused to non-disabled individuals having to wait longer for their preferred appointment times is of little or no significance. However, would that extend to their booked appointments being arranged to avoid disabled individuals having to wait potentially longer periods of time?

The duty is an anticipatory one; the obligation is to make reasonable adjustments by considering people generally who have that particular kind of disability. It would be impossible to anticipate the needs of every individual who walks into an opticians, of course, but some thought as to the barriers that may be faced by individuals with different kinds of disability and taking steps to avoid them are required. This could be something as simple as allowing children to book morning appointments.

Donna Reynolds is a partner with CCW Business Lawyers