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Disproportionate Burden – Can You Really Deny Responsibility for Accessibility?

Written by Ben Leach on

Disproportionate burden is a clause in the Public Sector Accessibility Regulations that allows organisations to claim they are burdened by making accessibility fixes. We investigate what disproportionate burden is, and why it may be an issue.

A clause in the Public Bodies Accessibility Regulations allows public sector organisations to claim accessibility fixes would be classed as a disproportionate burden.

The Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations

In September 2017, an EU law was passed that means public sector organisations are required to meet accessibility standards. In August 2018, due to Brexit, this law was brought into UK legislation. 

This legislation is applicable to all public sector organisations, including private companies funded by the public sector. The law will be an interpretation of the Web Content Accessibility Guidelines (WCAG) that were developed by the World Wide Web Consortium (W3C) 

The legislation requires all public sector organisations to adhere to the WCAG 2.1 guidelines, ensuring they meet level AA standards. You can find out more about WCAG compliance here. All public sector organisations must meet these requirements by September 2020, or face intervention from the Government. 

The legislation states that digital services must be accessible and have an accompanying Accessibility Statement

What’s required in an accessibility statement? 

To be compliant with the regulations, public sector bodies must publish an accessibility statement that is easy to access. If an organisation has multiple digital services (Intranet and website), these will require individual statements. 

In order to understand the full extent of inaccessibility on a digital service, it is first recommended you carry out an accessibility audit, utilising both manual and automated testing. 

As detailed in GDS (Government Digital Service) Accessibility Statement guidance, your statement must include the following: 

  • A list of any inaccessible areas of the website 
  • Instructions to people with access needs; how the service interacts with assistive technology. 
  • Where to get  alternatives to content that  is not accessible
  • Details on who to contact to report accessibility issues
  • Information on the enforcement procedure if people are not happy with the response. 

For the purpose of the user it must also:

  • Be published in a fully accessible format (preferably HTML). 
  • Follow a consistent format. 

Organisations must detail the areas that are not accessible and provide a roadmap for fixing issues. A fact unknown by many users is that organisations can also choose not to make certain areas of their site accessible and without penalty (not indefinitely). This is called disproportionate burden. 

What is disproportionate burden

Part 2, clause 7 of the Public Sector Accessibility Regulations allows organisations to claim that making a fix would be classed as ‘Disproportionate Burden’. This is when meeting full compliance of the Accessibility Regulations is too much for the organisation to achieve in the given timeframe. 

The Government Digital Services advises that organisations must consider what is reasonable to do in current circumstances. If those circumstances change, an organisation must review if something is still a disproportionate burden.

To make a claim, an organisation must do an assessment, by way of a full audit, detailing the restrictions that they are facing when dealing with accessibility issues.  

It is expected that you are able to evidence your claim, specifically, with what is being considered as a burden, and why. You cannot just say this is too much work or too much money.

The statistics behind disproportionate burden

According to George Rhodes at the Home Office, there are now close to 103 organisations claiming disproportionate burden.

Evidence suggests that many organisations claiming disproportionate burden do not have a valid claim. When asked, many organisations have claimed disproportionate burden without carrying out an adequate assessment. Thus, having no clear evidence as to why they are claiming it. You will be contacted by the enforcement agency, in due course, if this is the case.

Disproportionate burden statement

You must have carried out an accessibility audit in order to correctly evidence disproportionate burden. You cannot claim something is a burden without being aware of its presence within your digital service. It’s advised you carry out automated and manual tests to identify accessibility errors. Automated testing alone will only identify 30% of accessibility issues. 

As per the GDS’ Disproportionate Burden guidelines, a disproportionate burden assessment must weigh up: 

  • The burden placed upon an organisation by making accessibility changes. 
  • The benefits of making their digital service accessible. 

When making an assessment, organisations need to think about: 

  • The size of the teams responsible for accessibility and their available resources. 
  • The intended nature of the organisation (does it have services specifically aimed at disabled users).
  • The cost requirement of making elements accessible. 
  • The benefit of making a digital service accessible. 

What can be covered by disproportionate burden? 

Similar to the question ‘How long is a piece of string?’ it’s impossible to say what should be covered under disproportionate burden. 

Ultimately, it comes down to the assessment of the digital service. This must be based on the current circumstances of your organisation. It is essential to note that this is not a ‘get out of jail free card’. It must be reviewed annually, at least, and the accessibility statement must be updated, and version controlled. 

Here are a couple of examples of where claiming disproportionate burden may be admissible: 

Can we claim disproportionate burden if we have a new website in production?

A good example of disproportionate burden is actually from the Equality and Human Rights Commission (EHRC). They have identified forms and interactive content on their current website as inaccessible for keyboard and screen reader users. Fixing them would impose an unnecessary cost. They have a new website in production that will be fully compliant with WCAG 2.1. 

You can read the full version of the EHRC’s disproportionate burden reasoning here. 

We do not have enough resources, can this be a disproportionate burden claim?

An organisation that is small, with a limited budget, may claim that fixing their whole website straight away would be a disproportionate burden. For example, if their annual budget is £2,000 towards the website, and a supplier has quoted £10,000 for accessibility fixes, it may be categorised as a burden.

This organisation may choose to focus on areas of the website that have high traffic. Areas of low traffic may be marked as a disproportionate burden to fix immediately. However, this must be stated in the accessibility statement, revisited annually, and there must be clear indication as to when there are planned changes.

What is not considered disproportionate burden

Crucially, disproportionate burden is not an excuse for organisations to get out of making their websites or apps accessible. There are a number of reasons that cannot be used when claiming disproportionate burden. 

We have not received enough notice about the public sector legislation, we think this is grounds for a disproportionate burden claim.

This is not a reasonable claim for disproportionate burden because: 

  • The law has been in force for nearly 3 years – more than enough time to carry out an audit and release a statement.
  • Procurement teams have had enough time to source external suppliers if needed. 
  • There has been ample opportunity to redirect budget into ensuring the digital service is made accessible. 

Do our third-party systems count as a disproportionate burden claim?

This is not a reasonable claim for disproportionate burden, because: 

  • Third-party suppliers are the responsibility of the procurement regulations within a public sector organisation. Your third party supplier should be assessed for accessibility and prove they can deliver an accessible product. Remaining non compliant with the Accessibility Regulations could be ample grounds for breaking contract with a third-party supplier. 
  • There has been sufficient time to source accessible third-party systems or engage in dialogue with suppliers that are not currently accessible. 

We don’t understand what we have to do to comply with public sector accessibility regulations, is this a disportionate burden?

Not understanding accessibility or the regulations is not disproportionate burden:

  • It is the responsibility of the organisation to understand accessibility and upskill those who are unaware. 
  • A business owner is not exempt from submitting tax returns simply because they do not understand it. It is a legal requirement, as is the public sector legislation..
  • There have been ample opportunities to learn and develop knowledge on accessibility or find a consultant to explain it to you.
  • GOV.UK have provided an incredible amount of guidance on their website.

Take responsibility for your accessibility

Disproportionate burden is designed for those organisations who will face a genuine difficulty in implementing accessibility. It is not a loophole. 

It should not be seen as an opportunity to negate the responsibility of accessibility. The Government Digital Services, and the Home Office Digital require evidence of burden. Evidence may come in many forms, some examples are: 

  • Supplier quotes
  • Email exchanges 
  • Minutes of meetings 
  • Full accessibility audits
  • Budget allocations

If evidence is provided, it must contain details, or an explanation, of why making parts of the digital service is a disproportionate burden. 

Once the deadline has passed, it’s expected that organisations will begin to receive requests or complaints by members of the public regarding their level of accessibility. All organisations should be able to provide a reasonable explanation of their accessibility journey, and what they are doing to ensure their service remains accessible. 

How can HeX Productions help my organisation to comply with accessibility regulations? 

If you are concerned about the accessibility regulations and worried that you will struggle to meet them, we can help you. 

Accessibility Training

If you’re concerned about the current level of accessibility knowledge in your organisation, we can help. Our accessibility specialists offer bespoke training designed to cater for your needs, delivered in a way that suits you. 

We offer: 

Accessibility awareness training

Designer accessibility training 

Website developer accessibility training

Content editor accessibility training

Accessibility audit training

Accessibility Consultancy

Are you a little bit lost when it comes to your organisation’s accessibility? HeX can provide expert support and guidance to your organisation where you need it the most. Working with you, we can audit your website for accessibility errors, and develop a structured accessibility statement that clearly communicates your accessibility roadmap going forward. 

Find out more about our accessibility consultancy.

Website development

HeX Productions have a team of accessibility experts ready to help you design and build an accessible website.  Whether you decide to start again and re-design and re-build your services, or you want to make accessibility fixes to your current website or intranet, we can provide you with the skills that you need.