Disproportionate Burden

Within the regulations there is a clause that allows you to claim a disproportionate burden allowing you to avoid meeting the regulations. It has been made clear that this claim should not be made lightly as an attempt to dodge responsibility and you will have to thoroughly prove the claim with evidence.

The important section (Part 2 item 7) within the regulations states the following about disproportionate burden:

  1. In undertaking such an assessment, a public sector body must take account of relevant circumstances, including— 
    1. the size, resources and nature of the public sector body; and 
    2. the estimated costs and benefits for the public sector body in relation to the estimated benefits for persons with disabilities, taking into account the frequency and duration of use of the specific website or mobile application.

  2. If, following the assessment, a public sector body determines that compliance with the accessibility requirement would impose a disproportionate burden, it must—
    1. explain in its accessibility statement the parts of the accessibility requirement that could not be complied with; and
    2. where appropriate, provide accessible alternatives to documents held by that public sector body that are not available on their website or mobile application.

We feel that this on its own is not enough to begin an assessment unless you are already an expert on the topic and know exactly what you want to present as evidence. Also, there is not clear guidance yet as to what the threshold is for disproportionate burden, what could seem disproportionate to one will not be to another without clearer thresholds.

Guide for conducting and assessment

When thinking about conducting a disproportionate burden assessment, we have thought of a list of evidence types that you could chose to include to make an evidenced claim.

You could include:

  • Equality Impact Assessments (EqIAs)
  • Cost / benefit analysis
  • Comparisons to alternative services / products available
  • Project timelines
  • Audit results (defining the scale of issues to be resolved)
  • Other reasonable actions the organisation plans to take to improve the situation while making a claim
  • Defining compliance requirements and clearly outlining what that means in practical delivery terms and why that may not be currently feasible

Disproportionate burden research

There are a number of common pitfalls that many fall into when making a disproportionate burden claim. You can read the full breakdown in George’s disproportionate burden research but to summarise, organisations have made the following mistakes:

  • Making a claim without conducting any assessment
  • Making claims in error such as claims for exemptions
  • Conducting assessments after claims as a response to FOIs
  • Claiming a discussion was had rather than a documented assessment
  • Claiming it is the supplier’s problem