It is George back again with more thoughts on the accessibility regulations. I am still looking at accessibility statements and am currently working on version 3 of my statements across the UK research. But for now, I wanted to speak about disproportionate burden.
Because I am evidently quite dull, I have recently been looking at Freedom of Information Requests (FOI’s) regarding the Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018.
I wanted to keep up to date with the real questions public sector bodies are receiving as the regulations understanding evolves, rather than just assuming what questions are likely to be asked.
One concerning trend in particular that I have noticed is a large number of public sector bodies being challenged on their claims of disproportionate burden and being asked for the evidence documentation to support their claims.
Only have 5 minutes?
- Disproportionate burden is a clause in the regulations that allows organisations to avoid full compliance without penalty (not indefinitely).
- To make a claim for disproportionate burden an organisation MUST have completed an assessment thoroughly evidencing the reasoning.
- There is no accepted standard for what form this assessment should take.
- 60 organisations have claimed disproportionate burden and have been challenged for evidence documentation through Freedom of Information Requests.
- The responses have been (in my opinion) overwhelmingly lacking in documented evidence, with many organisations admitting they have not followed the regulations and opened themselves up to escalated challenges.
- The Equality and Human Rights Commission (EHRC) claimed disproportionate burden and have provided an evidenced response. I don’t think it is perfect but as the enforcement body, we should be looking to EHRC to set the bar.
- At the end of the article are suggestions for what you can do to find information or get help.
And most importantly…
Do not claim disproportionate burden without having completed and documented an assessment first!
What is Disproportionate Burden?
Within the regulations is a clause (Part 2 clause 7.) that allows organisations to avoid full compliance without penalty (not indefinitely) if they can prove that to achieve compliance would be a ‘disproportionate burden’.
In summary what it requires is that before any claim is made, an assessment of disproportionate burden is completed. This assessment should look at factors such as:
- Size, resources and nature of the organisation
- Estimated costs and benefits for the public sector body in relation to the estimated benefits for persons with disabilities
- Frequency and duration of use of the website or app
This is not an exhaustive list and an assessment should contain all known factors that have a quantifiable affect of an organisations ability to deliver compliance. I have previously pulled together wording from the regulations and EU regs / acts to attempt a disproportionate burden cheat sheet which some may find useful when thinking about what to cover in an assessment.
Once an assessment has been carried out (and documented), the organisation then can publish a claim in its accessibility statement.
Over Dec 2019 – Jan 2020, 60 organisations that I am aware of have been subject to challenges regarding their claims of disproportionate burden and evidence documentation through FOIs.
These challenges have been to organisations including:
- Local Government
- Police Forces
- Industry Regulators
- NHS Organisations
- Rail Services
From the responses that have been provided, very few of the organisations that have received a challenge have been able to produce evidence that in my opinion meets the suggestions for evidence by the regulations (as above).
Responses have varied depending on organisations but there are a few common themes:
The organisation does not hold this information / no assessment was conducted
I have seen 35 organisations respond in this way. This is in my opinion one of the worst things that an organisation can say, especially if this is followed by no action to remove the claim until such a time as the assessment has been completed.
What an organisation is doing here is opening themselves up to an escalated challenge or being reported to the Equality and Human Rights Commission (who are the enforcement body for the regulations).
I have spoken with some of the organisations that have responded in this way and on occasions the FOI has not reached the correct team. I encourage everyone who is responsible for accessibility testing, guidance or statements for an organisation to ensure that their FOI team is aware of where to send accessibility related requests.
The information provided in the statement was in error and has now been removed
24 organisations have in some way removed information from their statements due to FOI challenges. There are many reasons that have been given for the information being included into statements erroneously.
- Some said that it was covered in the GDS Sample Statement and was never taken out when the template was adapted.
- Some said they originally claimed it but then changed their minds and forgot to take it out.
- Some were in fact claiming correct exemptions under the regulations but did not understand the difference between exemptions and disproportionate burden.
Whatever the reasons for getting it wrong, this still demonstrates that there is a significant lack of understanding not only about what disproportionate burden is and the process to make a claim, but also about the regulations as a whole if organisations are so ignorant of the topic that they copy and paste example templates without thought or are confused significantly by what is in scope and what is exempt.
Hasty responses in order to placate an FOI
Some organisations have provided responses that do include some information such as email communications between them and their supplier, or a brief explanation of their reasoning either in response or published online. Unfortunately, they are dated after the FOI request and often ask the supplier to ‘find’ some evidence to demonstrate disproportionate burden.
All this demonstrates is that no assessment was completed before the claim was made and now the organisation is scrambling to find any evidence they can to placate the FOI requester and show that they did think about this before publishing a legal document.
A chat was had
Some organisations have stated that the claim was discussed in meetings or calls and that there are no records of the decision. In the same way as saying that the information is not held this is also not acceptable and really shows a lack of transparency in their work.
Most of the requests have asked for any other documentation that supports a claim not just a formal assessment. The fact that no meeting minutes or email comms could be provided does not instil confidence that this was ever thought about in any great depth before the claim was made.
It is the supplier’s problem
Some organisations are claiming disproportionate burden for 3rd party systems that they have embedded into their websites or otherwise form part of a process.
These organisations sometimes respond claiming that the supplier has told them or otherwise looked into the burden of fixing their services and has deemed it a disproportionate burden.
This demonstrates a lack of understanding of the regulations by the organisations, as it has been clear since the beginning that all legal responsibility falls on the public sector body and they cannot push that responsibility to 3rd party suppliers. If the supplier has completed an assessment the public sector body could agree and endorse the assessment but must have the documentation available and claim responsibility for it when it comes to coverage of their content.
I think there is also a definition issue with the wording regarding exemptions; “third-party content that is neither funded nor developed by, nor under the control of, the public sector body” as this seems to be the root of many of these responses.
It needs to be clarified explicitly whether 3rd party content is only exempt if it meets all of the above. Many are claiming that 3rd party content that forms part of their user journeys and shared a domain is exempt simply for the fact it is 3rd party. In my opinion as I have stated in other pages about 3rd parties and organisational responsibility, I think an organisation is responsible for 3rd party content unless they meet all of the conditions above.
Some organisations have refused the information on the provision that they are currently working on it and are planning to publish the information at a later date.
This is not an effective excuse. To have made the claim an organisation must have completed an assessment in advance. A member of the public can (and has) responded to the refusal asking instead for the historic report completed prior to the claim (acknowledging that this is for reference and not reflective of the current situation), rather than any in progress updated documentation.
An organisation in this situation has two choices either:
- Provide the historic report (which an organisation should have if they followed the regulations)
- Take down the claim until an organisation have the evidence to correctly support it
A good response
A very small few have managed to provide responses which I think are appropriate by my understanding of the regulations. The example I want to pull out is the Equality and Human Rights Commission (EHRC), who are the enforcement body for the regulations and if anyone should be able to demonstrate disproportionate burden correctly, it better be them.
I cannot express how relieved I am that while EHRC has claimed disproportionate burden, in their response EHRC have been able to reasonably explain why they feel that fixing the current issues is a disproportionate burden and what their remedial actions are. Now I will criticize EHRC’s comment that there was no written assessment, as I think that documenting the assessment is vital, however they were able to provide good information and I feel that as the enforcement body we should be looking to their response as a good example of content to require in a documented assessment.
A very bad response
One particular response I have seen concerns me greatly. The organisation in question is using disproportionate burden for the very worst of reasons, effectively attempting to dodge all responsibility under the regulations.
This large organisation claims that it would be disproportionate for them to conduct comprehensive testing on their web estate, and therefore because the organisation cannot test to find out what is wrong, they cannot fix any issues, and therefore should be exempt from all compliance requirements because they should not be held to standards they cannot even find out if they meet or not.
This fundamentally goes against advice given by GDS stating that lack of knowledge or priority is not a reason for disproportionate burden claims.
What I think
Many of the claims seem reasonable, but organisations think that it is so obviously disproportionate burden, they list it and then forget about it. Even if it is the most obviously impossible thing in the world, the documentation needs to be completed. If it really is that obvious then it should not be hard to demonstrate.
GDS have already made it clear that it is not a ‘get out of jail free’ card. Claims should not be made lightly as an attempt to dodge responsibility and organisations will have to thoroughly prove the claim with evidence.
It is clear to me now that challenges are only going to increase following the September 2020 deadline. Members of the public are challenging almost every aspect of the regulations and organisations’ accessibility roadmaps.
Organisations cannot believe that they will not start to regularly face challenges about accessibility and must be prepared to show how and what they are doing. These regulations are not a tick box exercise and the public to see real action on delivering accessibility.
More clarity is needed around disproportionate burden, what form a suitable assessment should take, specific meanings behind certain points in the regulations and overall more guidance given the lack of awareness I have seen over the last two months. This is a need GDS must resolve and I hope that as we begin the monitoring period, this clarity will begin to arise.
I am working on anonymising the data to be published with this article at a later date without singling out organisations. However, it is all online so you could be as dull as I am and spend your time looking through other people’s FOI requests too.
What people can do
Read the regulations. There is a difference between disproportionate burden and exemptions (I see this and many other mistakes that could be avoided). If you haven’t read them fully yet go and read the updated regulations (No.952). They are less than 9 full pages of content.
Check out the Government Digital Services’ (GDS) guidance on disproportionate burden. GDS are the monitoring body for the regulations.
We have written more about disproportionate burden in the Lexdis Digital Accessibility Toolkit. This even includes a disproportionate burden cheat sheet to help you think about your process for the assessment and what evidence you might need. The sheet combines information from the UK and EU regulations including the EU Accessibility Act 2019.
Get help if you don’t know what to do. I have delivered several disproportionate burden assessments for organisations, all of which are comprehensive documents that demonstrate the evidence suggested by the regulations and more. One of the most complex issues I have helped organisations with recently is assessing disproportionate burden regarding captioning of lecture content at Universities. Please contact me.
FOI responses should be publicly available and there are many places to look for these requests from the public. Many organisations publish a register of all FOIs they receive and point users to them to discourage repeat questions. One of my favourite places to look at FOIs is using the site www.whatdotheyknow.com which is a site that facilitates FOI requests. It is easy to search and has content for every organisation.
These views are my personal opinions. This work has not been commissioned in any way and is not reflective of any organisation’s views on any organisation’s approach to accessibility or regulatory compliance. I have made best endeavours to not identify any organisation or single out failures of regulatory compliance. I do not want to insight enforcement proceedings against any organisation, but wish for this work to be taken in the spirit that it was written, to educate.