Ensuring public sector websites and mobile apps are accessible 

The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (“the Regulations”) implemented the EU Directive on the accessibility of the websites and mobile applications (“apps”) of public sector bodies[1] (“the Directive”).

The aim of the legislation is to allow citizens, particularly those with a disability, to gain better access to public services by making public sector bodies’ websites and mobile apps more accessible, and harmonising varying accessibility standards within the EU, reducing barriers for developers of accessibility-related products and services.

The Regulations build on existing obligations under the Equality Act 2010 which imposes duties on service-providers to make reasonable adjustments for people with disabilities. These Regulations establish that a failure to comply with the accessibility requirement in the Regulations is to be treated as a failure to make a reasonable adjustment.

“Accessibility” refers to principles and techniques to follow when designing, building, maintaining and updating websites and mobile applications, in order to make them easy for people to use, especially people with disabilities.

The Regulations require public sector bodies to improve website and mobile app accessibility for users by:-

• meeting the accessibility requirement– this means making the website ‘perceivable, operable, understandable and robust’ for all users – ; and
• publishing and regularly reviewing an accessibility statement for their website and/or mobile apps

Who is affected?

All public sector bodies have to meet the requirements set out in the Regulations, unless they are exempt. Public sector bodies include (a) the State, (b) regional or local authorities, (c) bodies governed by public law, and (d) associations formed by authorities/bodies referred to in (b) or (c), if those associations are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character. This means that the Regulations cover a broad range of public sector organisations including central and local government, NHS organisations and universities.

There are several exemptions from the Regulations:-

• non-government organisations and charities – unless they provide services essential to the public, or services that specifically address the needs of, or are meant for, persons with disabilities;
• schools or nurseries – except where content relates to essential online administrative functions; and
• public sector broadcasters and their subsidiaries

Some types of content are also exempt including: live time based media; third-party content not funded by , nor under the control of the public sector body concerned; archives and heritage collections and contents of intranets and extranets published before 23 September 2019 (until such websites undergo a substantial revision on or after that date).

Even if exempt from the Regulations or meeting them would be a disproportionate burden, under the Equality Act 2010 public sector bodies are still required to make reasonable adjustments for people with disabilities when they’re needed.

Although not exempt from the Regulations, public sector bodies may also not have to fully meet their requirements if doing so would be a ‘disproportionate burden’.

A public sector body will be responsible for ensuring their website and/or mobile apps meet accessibility requirements, even if they’ve outsourced their website or application to a supplier. The Government Digital Service (GDS) recommends that an ITT should include:

“Requirements about meeting WCAG 2.1 AA and publishing Accessibility Statements for websites and mobile apps. Suppliers could be asked to provide evidence of meeting the standard in previous projects, their approach to accessibility testing, and integration of accessibility testing in the software release process.”

When will public sector websites and mobile apps need to be accessible by?

• Websites created on or after 23 Sept 2018, needed to be accessible by 23 Sep 2019
• Websites published before 23^rd Sept 2018 have until 23 Sept 2020 to comply
• Mobile applications must be accessible by 23 June 2021

The Regulations do not deal with circumstances whereby a website is substantially revised or updated after its original publication date. However, government guidance[2] indicates

“If you have made substantial changes to the code, for example to create new features, or if you create a subdomain with its own distinct codebase, it’s likely that these will need to be fully accessible from 23 September 2019.”

The accessibility requirement:

This means the requirement to make a website or mobile app accessible by making it perceivable, operable, understandable and robust. Public sector bodies must comply with the accessibility requirement unless doing so would be a disproportionate burden.

A website and / or mobile app is presumed to meet accessibility requirements where the public sector body has met the international web content accessibility standard, Web Content Accessibility Guidelines, WCAG 2.1 AA standard or its European equivalent, EN301 549.

An assessment must be performed of the extent to which compliance with the accessibility requirement imposes a disproportionate burden. This assessment must take account of relevant circumstances, including-

(a) the size, resources and nature of the public sector body; and

(b) 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 app

If, following the assessment, a public sector body determines that compliance with the accessibility requirement would impose a disproportionate burden, it must-

• explain in its accessibility statement the parts of the accessibility requirement that could not be complied with; and,
• where appropriate, provide accessible alternatives to documents held by that public sector body that are not available on their website or mobile app.

Accessibility statement:

The statement must be in an accessible format and published on the public body’s website. For an application, it should be available either on the website or alongside other information available when downloading the app. The statement must also include:

• An explanation of any content which is not accessible and the reasons why
• Where appropriate, a description of accessible alternatives
• A description of, and a link to, a contact form that enables a person to notify the public sector body of a failure to meet the accessibility requirement and request details for information which is excluded under the Regulations
• A link to the enforcement procedure if they are not content with response received from the public sector body

Enforcement and monitoring public sector websites:

The Equality and Human Rights Commission (“EHRC”) is responsible for enforcing the Regulations using its powers of enforcement in respect of compliance with the reasonable adjustment duty imposed on service providers.

There is also a need to ensure compliance with the requirement for public sector bodies to provide an accessibility statement and keep it under regular review. The Minister for the Cabinet Office (the “Minister”) enforces this specific requirement, which is outside the EHRC’s existing power. The Minister can issue a 28 day notice requesting a public sector body to provide information to demonstrate compliance. Failure to respond or a response failing to demonstrate compliance will result in a determination that the public sector body has failed to comply. There is opportunity for the public sector body to request a review, however where the determination is upheld, the Minister will publish the name of the public sector body.

Actions for public sector bodies to take:

• Assess whether the Regulations apply to you
• Check your website or mobile app for accessibility problems by ;-
  • Doing a detailed check yourself
  • Instructing a third party to do a detailed check for you
  • Doing a basic check if a detailed WCAG 2.1 check is a disproportionate burden
• Make a plan to fix any accessibility problems you find
  • Assess whether you have any content types which are exempt
• Prepare and publish an accessibility statement that explains how accessible your website or mobile app is
• Make sure new features are accessible

How we can support you:

If you need support or advice including assistance with your accessibility statement or are not sure whether the Regulations apply to you, contact Head of Public Sector and Partner Eve Piffaretti.

[1]  Directive (EU) 2016/2102

[2] GOV.UK Make your website or app accessible guidance