Consultation outcome

Government response

Updated 11 September 2018

Background

1. The EU Directive on the accessibility of public sector websites and mobile applications (known as ‘the Directive’ in this document) requires the UK to make sure that the websites and apps of UK public sector bodies are made more accessible, in accordance with common accessibility requirements, except where it would be disproportionate to do so.

2. In the Directive, ‘accessibility’ refers to the principles and techniques to follow when you design, build, maintain and update websites and apps to make sure people can use them, especially people with disabilities.

3. An accessible website or app can provide access to information on a wider scale than previously possible. This means that disabled people have easier access to printed, audio or visual material; that citizens can access services and information, regardless of experience or ability; and that people using all kinds of devices, from the oldest to the newest, will be able to use the website - helping to narrow the digital divide.

4. A user-friendly and accessible website can reduce costs since accessible web pages also tend to be lighter (physically smaller). This lowers bandwidth costs and improves page response times - leading to an improved experience.

5. The Directive builds on existing UK legislation and commitments:

• In Great Britain, the Equality Act 2010 legally protects people from discrimination in the workplace and in society, and imposes a duty on service-providers and those exercising public functions to make reasonable adjustments for people with some protected characteristics, including disability;
• In Northern Ireland, the Disability Discrimination Act 1995 protects people from discrimination and contains substantially similar obligations to the reasonable adjustment duty;
• The UK has approved the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which requires measures to assist disabled people with access to information, communication technologies and the internet on an equal basis.

6. The obligations in the Directive must be implemented in UK law by 23 September 2018. The main obligations will apply in three stages:

• public sector websites created after 23 September 2018 will need to comply with the requirements from 23 September 2019
• public sector websites created before 23 September 2018 will need to comply with the requirements from 23 September 2020
• public sector mobile applications will need to comply with the requirements from 23 June 2021

On 23 June 2016, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until the UK leaves the European Union on 29 March 2019, it remains a full member of the European Union and all the rights and obligations of EU membership remain in force.

7. The Directive applies to ‘public sector bodies’. The definition of ‘public sector bodies’ is:

A. the State;

B. regional or local authorities;

C. bodies governed by public law^{[footnote 1]}; or

D. associations formed by one or more such authorities in B, or one or more of the bodies in C, if those associations are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character.

8. The definition of ‘public sector body’ is very similar to that of ‘contracting authority’ in the EU Directive on public procurement. As such, bodies who are subject to the EU procurement rules are likely to be subject to this Directive.

Approach and vision

9. This consultation sought views on the government’s plan to implement the Directive into UK law - for example, what sort of guidance the government should provide to help organisations follow the rules and what training and support should be available.

10. In addition to the responses to the consultation, we engaged with stakeholders including public sector organisations, accessibility specialists and groups representing disabled people through two roundtable discussions and a webinar. We conducted user research with citizens to understand how they use accessibility statements (Annex B). This research involved lab-based user evaluations of two contrasting versions of an accessibility statement with eight participants.

11. This consultation does not represent the end of this research and engagement. We are making sure that stakeholders can contribute to the guidance that we are developing to assist public sector bodies to understand and meet their obligations. We are also undertaking further research with website users to ensure this guidance meets their needs.

12. Our approach to the development of these regulations is to help support public sector bodies make their websites and mobile applications more accessible and in doing so, to deliver benefits for users. To achieve this we need to provide guidance which enables website owners to understand the requirements and to deliver them.

13. The main obligations in our regulations will primarily be enforced through the UK’s existing equality legislation, and enforced by the Equality and Human Rights Commission (in Great Britain) and the Equality Commission for Northern Ireland (in Northern Ireland). This is to ensure that users do not need to understand whether a website is public or private to report accessibility issues. We will publish guidance to clearly explain how the existing legal requirements under the Equality Act 2010 or the Disability Discrimination Act 1995 continue to apply, including where there are exemptions under the Directive.

Consultation

14. The consultation ran for four weeks from 30 April to 29 May 2018. We received 44 completed responses from interested stakeholders. They have been read and categorised in relation to questions asked in the consultation. The respondents included charities, local authorities, membership bodies, the private sector and a number of personal responses - a list of respondents from organisations who consented to being named can be found in Annex A. During the consultation, three events were held with delegates from organisations representing disabled people, public sector bodies and organisations with specialist knowledge of web accessibility. Research with users with access needs also took place during this period (Annex B). A summary list of these events can be found at Annex C.

15. All comments have been read and given full consideration as part of the Government response, as well as for the purpose of developing the approach to implementation and the regulations. This document summarises the results of the consultation and sets out the Government’s response.

16. Of the 44 respondents, 28 were submitted via an online survey and 16 were received directly by email. Government Digital Service (GDS) has evaluated the range of views received and has considered each one carefully.

Response type	Number of responses
Email	16
Online survey	28
Total	44
Roundtable	16*
Overall	60

* also contribued to the consultation via online survey or by email

Organisation type	Number of reponses
Business	7
Charity	7
Devolved administration	1
Local government	8
Personal	16
Other	5
Total	45

17. Feedback was provided during two roundtable events and a webinar. We have considered the comments at the live events and delegates were asked to submit a formal response by email or survey. Due to the possibility of duplication we have not included the feedback from the events in the statistical analysis but this feedback was reviewed and given full consideration.

Overview

18. Respondents to the consultation welcomed the new Directive and generally pressed for it to go further in its scope. This included questioning the exempt status of schools, the BBC, some non-governmental organisations, and content provided by third-party, non-public sector entities. It also included calls for strict monitoring procedures to make sure public sector bodies adhered to the new requirements. There was disappointment that the Directive did not extend to commercial websites. Conversely, there were requests for public sector bodies with an annual turnover under a certain threshold to be exempt from the terms of the Directive.

19. There were contrasting views from two respondents on the period of time allowed to prepare for meeting the new rules; one noting that a longer period would help accommodate costs and design adjustments associated with the new requirements while another claiming that public sector bodies have known of the importance of web accessibility for a long time and have had plenty of feedback and time to account for user access needs. Two of the 44 respondents expressed concern about the four week consultation period.

20. Below is a detailed summary of the responses together with the Government’s response.

Definitions

The consultation asked about the definition of ‘public sector bodies’ in questions 1 and 2:

Question 1: Do you understand the definition of ‘public sector bodies’? If not, please explain.

Question 2: Would you benefit from further guidance on this definition?

Summary

86% of respondents answered the definition question with 90% of these responses indicating that they understood the definition.

89% of respondents answered the guidance question with 28% of these indicating they required further guidance.

21. Respondents largely understood the definition of ‘public sector bodies’ but requested that it be made clear if the Directive applies to third-party providers of website content or services for public sector organisations. Leisure centres, libraries and parks were cited by four respondents as examples of services often provided in the public sector space but run by an outsourced entity such as a charity, trust, arm’s-length body or commercial partner. One respondent representing a charity indicated a need to understand whether they themselves were covered by the Directive.

Government response

22. Although the majority of respondents broadly understood the definition of a public sector body, it is clear there is a need to publish guidance to clarify the definition and which bodies may be caught by these regulations, such as for websites developed by third parties.

23. The specific definition of a ‘public sector body’ is taken from the Directive and is very similar to the definition of a ‘contracting authority’ in the Public Contracts Regulations 2015 (which implement the Public Sector Procurement Directive). Changing this definition would increase the risk that we change the substance of the obligation or the scope of the Directive and therefore increase the risk of failing to fully implement this Directive. However, to ensure full understanding of the definition we will provide additional guidance to assist organisations to determine whether they are covered by the regulations. We will make clear in this guidance that bodies which are not covered by these regulations may still have existing obligations (for example, the duty on service providers and employers to make reasonable adjustments for disabled people) under the Equality Act 2010 or the Disability Discrimination Act 1995.

Exemptions

The consultation asked about exemptions in questions 3, 4 and 6:

Question 3: Do you understand the types of bodies that will be exempt?

Question 4: Would your organisation’s website or apps fall under this exemption?

Question 6: Do you understand the content exemptions and whether they apply to content held by your organisation?

Summary

89% of respondents answered the organisational exemption questions with 85% indicating they understood which bodies would be exempt but only 12% indicating they would be covered by these exemptions.

86% of respondents answered the content exemption questions with 90% of these indicating they understood which content would be exempt.

24. Several respondents highlighted that although the organisational exemptions were clear, they did not understand the rationale behind them. Several respondents noted the BBC exemption and questioned the basis of this.

25. Others referred to the need to include third-party providers and their content within the scope of the Directive since they can provide content which is integral to the functioning or purpose of public sector websites. Respondents were also concerned that the exemptions could be interpreted too broadly. One respondent mentioned that a website user might be prevented from completing a council tax payment if the payment gateway is provided by a third-party organisation that is not required by this Directive to be accessible.

26. One charity respondent raised a concern with the possible loophole of a public sector organisation being allowed to label certain content or publications as ‘archives’ which are exempt. Other respondents expressed concerns that the Directive did not apply to internal intranets, especially in the context of an increase in the number of disabled people in employment.

27. One respondent suggested an exemption to the exemptions where a disabled person would be able to directly ask for something on a public sector website to be made accessible even where it falls under an exemption.

28. There were requests for guidance both on how to make content accessible and on how to use the procurement process in a more discerning way to provide accessible services.

Government response

29. Government policy is not to go beyond the minimum requirements of European Directives unless there are exceptional circumstances. In accordance with this policy, we will make use of all exemptions available in the Directive.

30. We propose to review the regulations in two years; after the regulations have come into force. This will enable a review of lessons from how the legislation is working in practice to shape and revise. This review will look at how the range of exemptions are working and if these need to be changed.

31. Points about the scope and lack of clarity for exemptions made during the consultation have been carefully considered. The Government agrees that clarity is needed in respect of both organisational and content exemptions and we will include this in the guidance produced by GDS which will be published in 2018.

32. This guidance will make clear that intranets are covered by the Directive if they undergo substantial revision after September 2019, and that where content can’t be made accessible, public sector bodies should (to the extent reasonably possible) add accessible alternatives on their websites and link to this from the accessibility statement where users can request information excluded if needed. This guidance will be clear that even if organisations or content are not caught by the Directive, there may still be a duty to make reasonable adjustments for disabled people under the Equality Act 2010 or the Disability Discrimination Act 1995.

33. We understand the concerns raised on the exemption for third-party content. This exemption is intended to cover elements which are not within the control of the website or app owner. We do not believe that it is reasonable to require public sector bodies to meet a requirement which is outside their control. We will include advice on buying accessible resources in guidance.

Exemption for schools, nurseries and kindergartens

The consultation asked about the exemption for schools, nurseries and kindergartens in question 5:

Question 5: Do you agree with the exemption for schools, nurseries and kindergartens? Please explain your answer.

Summary

89% of respondents answered this question with 62% of these responses disagreeing with exemption.

34. Responses questioned why the Directive would exclude such a big sector where many people require accessible information. These responses highlighted the need for parents, grandparents and guardians to have access to information on school websites.

35. Respondents felt there was a lack of clarity about what ‘school’ means, and that it was unclear whether sixth-form colleges, independent colleges and multi-academy trusts would be included.

36. One respondent highlighted that since the ‘disproportionate burden’ exemption is already included, schools could use this if they felt it necessary. Another respondent deemed that an obligation, rather than a blanket exemption, should be placed on these organisations to reach the standards set out in the Directive when undertaking a major revamp of their website. This would allow them to build in the new requirements at the next available opportunity.

Government response

37. Responses about the scope and clarity of this exemption have been carefully considered. We remain of the view that the partial exemption for schools, nurseries and kindergartens should be included. This is a limited exemption which still requires that essential online administrative content is made accessible. Government policy is not to go beyond the minimum requirements of European Directives unless there are exceptional circumstances. In accordance with this policy, we will make use of all exemptions available in the Directive. We recognise that schools are delivering against higher expectations and we are providing support to schools to deliver the best value from their resources.

38. On GOV.UK, it is already clearly set out that schools are required to publish certain information on their websites, and that they should provide a paper copy to a parent if they make a request. Therefore, there are already requirements in place where accessible content for essential services can be requested.

Disproportionate burden assessment

The consultation asked about the ‘disproportionate burden assessment’ in question 8:

Question 8: Do you understand the concept of a ‘disproportionate burden assessment’? If not, please explain any concerns or difficulties you have with this definition.

Summary

82% of respondents answered this question with 86% of these responses understanding the definition.

39. A number of respondents expressed concerns about the use of the word ‘burden’ in the Directive. They found this to be unhelpful when referring to providing services that disabled people can access as it suggests this is always a burden. Respondents from two charities and an independent consultancy suggested that the term, ‘disproportionate burden’ should be harmonised with the term ‘reasonable adjustment’ as in the Equality Act 2010.

40. A number of respondents said that the disproportionate burden could provide an opportunity for bodies to avoid making their websites or apps accessible.

41. Respondents suggested that the disproportionate burden assessment should be made public as they believed publishing the reasoning and conclusions for claiming disproportionate burden following a formal assessment would prevent its overuse.

42. It was suggested that parish councils with an annual turnover of below £200,000 should be exempt. By contrast, one respondent stated that size and resource should not be an excuse for using disproportionate burden.

Government response

43. The government recognises the concerns raised with the use of the term ‘disproportionate burden’, which is the terminology used in the Directive. We considered whether the term ‘reasonable adjustment’ or something similar could be substituted for the disproportionate burden exemption. However, we could not find a way to align this language which retained the substance of the obligation and met the objectives of the Directive. As part of the review on how the regulations are operating following implementation, we will review this language and will amend if required.

43. We do not agree that the disproportionate burden exemption will provide an opportunity for bodies to avoid making their websites or apps accessible. This exemption only enables website owners to not make website or apps accessible to the extent that doing so would impose a disproportionate burden. This means that, in justified cases, it might not be reasonably possible for a public sector body to make some specific content fully accessible. However, the public sector body should still make that content as accessible as possible, and make other content fully accessible. Exceptions to compliance with the accessibility requirement should not go beyond what is strictly necessary in order to limit the disproportionate burden in respect of particular content with each individual case. Furthermore, the accessibility statement will require a public sector body to provide information on content that has been excluded, and provide accessible alternatives where appropriate.

44. We are not able to exempt public sector organisations from the regulations where an exemption does not exist in the Directive. It will be for parish councils to apply the disproportionate burden exemption where they feel this is appropriate. The review of the legislation proposed in the section above will enable us to determine whether the current exemptions are appropriate and whether any changes are required.

Compliance: accessibility statements

The consultation asked about accessibility statements in questions 9, 10 and 11:

Question 9: Does your organisation currently publish an accessibility statement?

Question 10: If yes, what does the statement include?

Question 11: Do you think the content of the accessibility statement above will help users to better access content and services?

Summary

86% of respondents answered the accessibility statement question. 66% of those respondents currently publish an accessibility statement. 84% of respondents answered the question on whether the accessibility statement will help users to better access content and services. 70% of these respondents believed the statements would help users.

46.Many respondents expressed a need for improved requirements around the standardisation of the accessibility statement. They believed this would help users access content and services more easily since, in their current form, these statements are generally vague and in need of improvement. The results of user research during the consultation period underlines this point showing a demand for a more standardised and user-centred format with practical information made available without resorting to technical jargon (see Annex B).
47. Comments received suggested that the statements may be more useful if the details of the individual accountable for maintaining the website or application were clearly visible. Several respondents agreed with the requirement in the Directive for the statement to make reference to regular website improvements and testing. Respondents added that the statement could include:

• a disproportionate burden assessment
• details of bug fixes and stability improvements
• feedback from data users
• a statement on what is required to be compliant.

48. A respondent suggested that statements should be updated quarterly and be in a machine-readable format and easy to locate so users do not have to guess where the accessibility statement is.

49. Five respondents stated that the Directive should include a requirement for a response mechanism where user accessibility issues could be fed back and addressed. One response indicated that this should include Video Relay Interpreting Systems to allow sign language users to contact organisations.

Government response

50. The regulations will require that all public sector websites publish an accessibility statement which follows an agreed EU template. The UK has been inputting to the development of this template and has supported this with research with users to understand their needs. These statements will require a clear explanation of the accessibility of the website with details of the accessibility requirements that could not be complied with due to any disproportionate burden exemption. They will contain a feedback mechanism and will have to be updated frequently (currently annually in the EU model accessibility statement released for consultation in May 2018). Users will be able to request accessible alternatives for inaccessible content. The accessibility statement template will be published by the EU by December 2018 and we will ensure that this is provided in an accessible format.

51. GDS will provide guidance to public sector website owners covering accessibility statements, which will include best practice advice. This will go beyond the legal minimum requirements of the EU accessibility statement to enable website owners to develop statements which best meet the needs of their users. It will be for individual website owners to determine whether it is appropriate to provide this additional content or additional mechanisms such as Video Relay Interpreting Systems, depending on the size of the organisation and the number and demographics of their users.

Compliance: training and guidance

The consultation asked about training and guidance in questions 12 and 13:

Question 12: Do you anticipate that you or your organisation will need guidance and/or training in order to meet this Directive?

Question 13: If yes, what guidance and/or training will you or your organisation need?

Summary

80% of respondents answered this question with 37% of those responses indicating they will require guidance and/or training.

52. Responses expressed a need for practical guidance which included examples of good practice and contacts for support with research and testing. It was deemed important that public sector bodies with a limited budget are provided with free resources and guidance on how to meet the Directive’s obligations. It was suggested that this training material should be provided in accessible formats.

53. One respondent suggested that government should go further and facilitate education on website and app accessibility to address the skills gap in the public sector. It was suggested that training was required for senior managers and governance committees to ensure they understood their responsibilities.

Government response

54. The government agrees with the need for clear guidance. GDS is working closely with stakeholders to produce this guidance and is conducting user research to make sure that it meets their requirements. The feedback provided during this consultation will form the basis of this future work.

Enforcement

The consultation asked about enforcement in question 14:

Question 14 - Do you have any comments on proposed enforcement of the Directive?

Summary

55. Four respondents disagreed with GDS being the monitoring and reporting body, whilst two respondents supported GDS being the monitoring and reporting body. The monitoring and reporting body will be responsible for assessing a certain number of websites each year to ensure compliance.

56. Enforcement was largely understood by respondents, in distinction to monitoring and reporting, as the mechanism providing the legal incentive for making change. Some respondents stated disappointment in the lack of detail provided on enforcement in the consultation document and that an enforcement regime, when agreed, should include penalties.

57. Six respondents from charities stated the Equality and Human Rights Commission (EHRC) should be responsible for monitoring and reporting. Other suggestions included the National Audit Office, the Local Government Ombudsman or the Parliamentary and Health Service Ombudsman. The main reason noted was that the monitoring body needed to be independent of government. Although respondents recognised the expertise within GDS, it was stated as being important that the monitoring process is at least one step removed from Government.

58. Respondents expressed disappointment in the lack of detail on a proposed enforcement mechanism. Twelve respondents welcomed a central body for enforcement rather than user complaint procedures. A number of responses believed that robust enforcement with accountability for inaction, lack of co-operation or breach of the requirements was required.

59. Five respondents questioned what the cost of non-compliance would be and suggested this should include fines, a ratings scheme and a published list of those censured. Respondents suggested that penalties should be linked to those already established under the Equality Act to lend appropriate weight and importance to the new requirements.

60. There was the suggestion that organisations be given sufficient time to prepare, that there should be transparency and consistency in enforcement procedures and warnings prior to enforcement.

Government response

61. We are confident that GDS is in the best position to perform monitoring and reporting roles due to their extensive knowledge of design and delivery of government services. GDS is the government’s center for expertise in web accessibility and a recognised leader in this field. The concerns raised over potential conflicts of interest for GDS as the monitoring and reporting body have been carefully considered. To prevent any potential conflict of interest and help ensure both impartiality and transparency, we plan to set up a stakeholder group to oversee monitoring. This group would review the outputs of the previous year’s monitoring and agree the sample for the coming year. This sample would take account of the different size and scope of the public sector websites to be monitored. The Government agrees with the need for clear, robust and proportionate enforcement mechanism to ensure the delivery of these important duties. We agree with the need to use the existing equalities framework where applicable - namely the Equality Act 2010 in Great Britain and the Disability Discrimination Act 1995 in Northern Ireland.

62. After due consideration, we can confirm that enforcement of the Directive will be primarily undertaken by the EHRC in Great Britain and ECNI in Northern Ireland under existing equalities legislation. The key components requiring enforcement (for public sector bodies’ websites and apps to meet the accessibility requirement, subject to any disproportionate burden imposed) are covered by the existing reasonable adjustment duties contained in the Equality Act 2010 and the Disability Discrimination Act 1995.

63. This enforcement approach reflects the importance of the new requirements, and makes sure the process for resolving accessibility concerns is robust. We also believe it is important that users of websites and apps are not required to understand whether a website is public or private sector to be able to seek resolution for accessibility issues.

64. We also need to enforce compliance with the requirements for accessibility statements. The Minister for the Cabinet Office will be given a power to enforce compliance with the requirements for accessibility statements. GDS (part of the Cabinet Office), as the monitoring and reporting body, will be undertaking a review of the accessibility of a large number of websites each year and will be reviewing accessibility statements as part of this work. Accordingly, we think the power to assess compliance with the requirements for accessibility statements fits within the Cabinet Office.

65. The Minister for the Cabinet Office will be able to send a notice to a public sector body requesting it provide information to demonstrate compliance with the requirements. If a public sector body has failed to comply with the requirements for accessibility statements, the Minister for the Cabinet Office can make a determination of non-compliance. A person or public sector body can then request a review of the decision. If the determination is upheld, the Minister for the Cabinet Office can publish the name of that body online in a list of non-compliant organisations, along with the decision.

66. This enforcement framework will reflect the importance of the requirements under the Directive, and to make sure the process for resolving accessibility concerns is robust. We believe that it is important that penalties for equalities issues are aligned across public and private sector bodies. It is important that users of websites are not required to understand whether a website is public or private sector to report issues with the accessibility of websites. Details of the enforcement mechanism will be included in the guidance GDS produces and each accessibility statement.

Regulations

The consultation asked about the regulations being introduced in question 15:

Question 15: Are the obligations in the regulations clear and easy to understand? If there is anything you do not understand, please advise?

Summary

82% of respondents answered this question with 86% of those responses agreeing the regulations are clear and easy to understand. No comments were received on the regulations.

The regulations have been further developed since the consultation was published with provisions on monitoring, reporting and enforcement added.

Annex A: Respondents

This list represents those organisations noted in the consultation survey as having agreed to be published:

• AbilityNet
• British Computer Society - Digital Accessibility Specialist Group
• British Deaf Association
• British Dyslexia Association
• Business Disability Forum
• Comberton Parish Council
• Digital Accessibility Centre Ltd
• Free Rein Ltd
• Guilden Morden Parish Council
• Hardwick Parish Council
• Hemingford Grey Parish Council
• Hex Productions Ltd
• Hft
• Nomensa
• Policy Connect
• Royal National Institute of Blind People (RNIB) - in association with Guide Dogs and Vision UK
• SCOPE
• Sefton Council
• Shaw Trust Enterprises
• Stratford upon Avon District Council
• Ufford Parish Council
• Welsh Government

Annex B: Research

The Government conducted research with citizens (website users) to understand how they use accessibility statements. This research involved lab-based user evaluations of two contrasting versions of an accessibility statement with eight participants. These participants had a broad range of digital skills and knowledge of accessibility as well as different access needs. Users read through the statements in detail and researchers asked them questions throughout. The key findings were as follows.

The government should:

• make the location and design of accessibility statements consistent across public sector websites so that users know where they are and what to expect
• include information about the organisations’ accessibility offerings so that users know how to access services online and offline
• provide users with information on how they can improve their own experience so that they can access the service in a way that suits them
• explain briefly and clearly what parts of the website are not accessible and what that means for users so that users know it is not them but rather the website
• ensure that feedback is consistent and easy to provide with clear response times so that users are encouraged to provide feedback and know what to expect

The government should not:

• provide information exclusively about website accessibility because users think about accessibility at the organisation as a whole and not solely in relation to websites.
• provide detailed lists of inaccessible content with reasons why it is not accessible because this disempowers and confuses users.
• use jargon because users take this as a sign that the page is not for them and that the organisation only cares about meeting legal requirements.

Annex C: Events

Event	Date	Attendees
Research	16 to 18 May	Accessibility statement testing with website users
Roundtable	17 May	Disability organisations
Webinar	22 May	Public sector bodies
Roundtable	24 May	Private sector

1. The definition of ‘bodies governed by public law’ is the same definition as in the Public Sector Procurement Directive (2014/24/EU). ↩